As filed with the U.S. Securities and Exchange Commission on June 29, 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
PENNS WOODS BANCORP, INC.
(Exact Name of Registrant as Specified in its Charter)
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Pennsylvania
(State or other jurisdiction of
incorporation or organization)
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23-2226454
(I.R.S. Employer
Identification No.)
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300 Market Street, P.O. Box 967
Williamsport, Pennsylvania 17703-0967
(570) 322-1111
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Richard A. Grafmyre
Chief Executive Officer
Penns Woods Bancorp, Inc.
300 Market Street, P.O. Box 967
Williamsport, Pennsylvania 17703-0967
(570) 322-1111
(Name, address, including zip code, and telephone number, including area code, of agent for service)
with copies to:
David W. Swartz, Esq.
Stevens & Lee, P.C.
111 North Sixth Street
Reading, Pennsylvania 19601
(610) 478-2184
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this 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. A registration statement relating to these securities has been filed with the Securities and Exchange Commission and has not yet been declared effective. The securities may not be sold until the registration statement has been declared effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JUNE 29, 2023
PROSPECTUS
$85,000,000
PENNS WOODS BANCORP, INC.
Common Stock
Preferred Stock
Depositary Shares
Warrants
Debt Securities
Subscription Rights
We may offer and sell any combination of the securities listed above, in one or more offerings, up to a total dollar amount of $85,000,000. We may offer these securities separately or together, in separate series or classes and in amounts, at prices and on terms described in one or more prospectus supplements. The debt securities, preferred stock and warrants may be convertible or exercisable or exchangeable for debt or equity securities of the Company or of one or more entities.
We will provide the specific terms of the securities offered in supplements to this prospectus. This prospectus may not be used to sell securities unless accompanied by a prospectus supplement. The prospectus supplement and any related free writing prospectus may also add, update or change information contained in this prospectus. Please read this prospectus, the applicable prospectus supplement and any related information, as well as any documents incorporated by reference in this prospectus or any prospectus supplement, carefully before you invest in any of our securities.
Our common stock is traded on the NASDAQ Global Select Market under the symbol “PWOD.” On June 27, 2023, the closing price of our common stock on the NASDAQ Global Select Market was $25.63 per share. You are urged to obtain current market prices of our common stock. The applicable prospectus supplement will contain information, where applicable, as to any listing on the NASDAQ Global Select Market or any securities market or other exchange of the securities covered by the applicable prospectus supplement.
The securities may be offered and sold on a continuous or delayed basis, through agents, dealers or underwriters, or directly to purchasers. The prospectus supplement for each offering of securities will describe in detail the plan of distribution for that offering. If agents or any dealers or underwriters are involved in the sale of the securities, the applicable prospectus supplement will set forth the names of the agents, dealers or underwriters and any applicable commissions or discounts. Net proceeds from the sale of securities will be set forth in the applicable prospectus supplement. For general information about the distribution of securities offered, please see “Plan of Distribution” in this prospectus.
Investing in our securities involves risk. You should carefully review the risks and uncertainties described under the heading “Risk Factors” on page 5 of this prospectus, in any prospectus supplement and in our periodic reports and other information we file with the Securities and Exchange Commission before making any decision to invest in our securities.
Our principal executive offices are located at 300 Market Street, Williamsport, Pennsylvania 17701. Our website provides information about us, our history, goals and philosophy, as well as certain corporate press releases. Our website is located at http://www.pwod.com. The contents of our website do not constitute part of this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission nor any other regulatory body has approved or disapproved of these securities or determined that this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
These securities are not savings accounts, deposits or other obligations of any bank and are not insured or guaranteed by the Federal Deposit Insurance Corporation or any other governmental agency.
The date of this prospectus is [ ] [ ], 2023.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
In this prospectus, the “Company,” “we,” “our,” “ours,” and “us” refer to Penns Woods Bancorp, Inc., which is a financial holding company formed under the laws of Pennsylvania and headquartered in Williamsport, Pennsylvania, and its subsidiaries on a consolidated basis, unless the context otherwise requires. References to “Jersey Shore State Bank” mean Jersey Shore State Bank, a Pennsylvania state-chartered banking institution, references to “Luzerne Bank” mean Luzerne Bank, a Pennsylvania state-chartered banking institution, and references to the “Banks” mean both Jersey Shore State Bank and Luzerne Bank.
This prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission, or the “Commission,” utilizing the “shelf” registration process. Under this process, we may, from time to time, offer and sell, in one or more offerings, the securities described in this prospectus with a total aggregate principal amount or initial purchase price amount of $85,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement containing specific information about the terms of that offering. You should read this prospectus, the prospectus supplement, and the information incorporated by reference in this prospectus before making an investment in our securities. See “Where You Can Find More Information” for more information. If there is any inconsistency between the information in this prospectus and any prospectus supplement, you should rely on the information in the prospectus supplement.
The registration statement that contains this prospectus, including the exhibits and the documents incorporated herein by reference, contains additional information about us and the securities offered under this prospectus and any prospectus supplement. The registration statement can be obtained at the Commission’s website or our website, which are mentioned in this prospectus under the heading “Where You Can Find More Information.”
You should rely only on the information contained in this prospectus or any prospectus supplement and those documents incorporated by reference in this prospectus or any accompanying prospectus supplement. Neither we, nor the selling securityholders, have authorized anyone to provide you with information that is in addition to, or different from, that contained in this prospectus or any accompanying prospectus supplement. If anyone provides you with different or additional information, you should not rely on it. This prospectus may only be used where it is legal to sell these securities, and neither we nor any of the selling security holders have authorized anyone to make any representations in connection with an offering other than those contained or incorporated by reference in this prospectus or any accompanying prospectus supplement. Neither this prospectus nor any prospectus supplement is an offer to sell, or a solicitation of an offer to buy, in any state where the offer or sale is prohibited. The information in this prospectus, any prospectus supplement or any document incorporated herein or therein by reference is accurate as of the date contained on the cover of such documents. Neither the delivery of this prospectus or any prospectus supplement, nor any sale made under this prospectus or any prospectus supplement will, under any circumstances, imply that information in this prospectus or any prospectus supplement is correct as of any date after the date of this prospectus or any such prospectus supplement.
We may sell our securities to underwriters who will in turn sell the securities to the public on terms fixed at the time of sale. In addition, the securities may be sold by us directly or through dealers or agents which we may designate from time to time. If we, directly or through agents, solicit offers to purchase the securities, we reserve the sole right to accept and, together with our agents, to reject, in whole or in part, any of those offers.
A prospectus supplement will contain the names of the underwriters, dealers or agents, if any, together with the terms of offering, the compensation of those underwriters and the net proceeds to be received by the Company. Any underwriters, dealers or agents participating in the offering may be deemed “underwriters” within the meaning of the Securities Act of 1933, as amended, or the ‘Securities Act.”
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is a part of a registration statement on Form S-3 filed by us with the Commission under the Securities Act. This prospectus does not contain all the information set forth in the registration statement, certain parts of which are omitted in accordance with the rules and regulations of the Commission. For further information with respect to us and the securities offered by this prospectus, reference is made to the registration statement. Statements contained in this prospectus concerning the provisions of such documents are necessarily summaries of such documents, and each such statement is qualified in its entirety by reference to the copy of the applicable document filed with the Commission.
We file periodic reports, proxy statements and other information with the Commission. Our filings with the Commission are available to the public over the Internet at the Commission’s website at http://www.sec.gov. Our filings with the Commission are also available to the public on our website at http://www.pwod.com, as well as through document retrieval services.
The Commission allows us to “incorporate by reference” information into this prospectus. This means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus and information that we file subsequently with the Commission will automatically update and supersede the information in this prospectus. In all cases, you should rely on the later information to the extent the information on any given topic included in this prospectus is different.
We incorporate by reference the documents listed below and any filings we make with the Commission under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, after the initial filing of the registration statement that contains this prospectus and prior to the time that all the securities offered by this prospectus are sold by us; provided, however, that we are not incorporating any information that is deemed “furnished” in accordance with the Commission’s rules, including, but not limited to, information under Items 2.02 or Item 7.01 of any Current Report on Form 8-K including related exhibits:
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our Current Reports on Form 8-K filed on January 30, 2023, March 1, 2023, April 28, 2023, May 12, 2023, May 17, 2023, and May 26, 2023;
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We will provide to each person, including any beneficial owner, to whom a prospectus is delivered, a copy of any or all of the documents or information that have been incorporated by reference in this prospectus but not delivered with this prospectus. You may request a copy of these filings (other than an exhibit to a filing unless that exhibit is specifically incorporated by reference into that filing) at no cost, by writing to or telephoning us at the following address and telephone number:
Penns Woods Bancorp, Inc.
110 Reynolds Street
South Williamsport, Pennsylvania 17702
Attention: Michelle Karas
Telephone: (570) 322-1111
You should rely only on the information contained in this prospectus supplement or amendment hereto. We have not authorized anyone to provide you with different information. Neither the Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation of the contrary is a criminal offense.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and any accompanying prospectus supplement and any information incorporated by reference herein or therein contain forward-looking statements relating to future events or our future results. These statements are forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, or the “Exchange Act,” and are intended to come within the safe harbor protection provided by those sections. Statements that are not historical facts, including statements about our beliefs, opinions or expectations and statements that assume or are dependent upon future events, are forward-looking statements and often contain words such as “expect,” “anticipate,” “intend,” “plan,” “believe,” “seek,” “see,” “will,” “would,” “may,” “could,” “should,” “goals” or “target.” Such statements are based on management’s expectations as of the date of this prospectus and involve many risks and uncertainties that could cause our actual results to differ materially from those expressed or implied in our forward-looking statements. Such risks and uncertainties are discussed more fully under the caption “Risk Factors” included in our Annual Report on Form 10-K for the year ended December 31, 2022, and include, but are not limited to the following:
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statements and assumptions relating to financial performance;
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statements relating to the anticipated effects on results of operations or financial condition from recent or future developments or events;
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statements relating to our business and growth strategies and our regulatory capital levels; and
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any other statements, projections or assumptions that are not historical facts.
Actual future results may differ materially from our forward-looking statements, and we qualify all forward-looking statements by various risks and uncertainties we face, some of which are beyond our control, as well as the assumptions underlying the statements, including, among others, the following factors:
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the strength of the United States economy in general and the strength of the local economies in which we conduct operations and the impact they may have on us and our customers;
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the credit risks of lending activities, including changes in the level and trend of loan delinquencies and write-offs;
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the overall quality of the composition of our loan and securities portfolios;
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electronic, cyber and physical security breaches;
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the occurrence of fraudulent activity, breaches or failures of our information security controls or cybersecurity-related incidents;
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interruptions involving our information technology and telecommunications systems or third-party servicers;
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legislative and regulatory changes;
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changes in federal tax law or policy;
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the effects of, and changes in, monetary and fiscal policies and laws, including interest rate policies of the Board of Governors of the Federal Reserve System (the “Federal Reserve”);
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inflation, interest rate, market and monetary fluctuations and their effect on the market value of financial assets;
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fluctuations in the demand for loans, the number of unsold homes and other properties and fluctuations in real estate values in our market areas;
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the results of examinations of us by the Federal Reserve and of the Banks by the Pennsylvania Department of Banking and Securities and the Federal Deposit Insurance Corporation (“FDIC”), including the possibility that the FDIC may, among other things, require the Banks to increase their capital ratios, increase their allowance for loan losses or to write down assets;
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risks of expansion through acquisitions and mergers, such as unexpected credit quality problems of the loans or other assets, unexpected attrition of the customer base of the acquired institution or branches, and difficulties in integration of the acquired operations;
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our ability to control operating costs and expenses;
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our ability to manage delinquency rates;
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our ability to retain key members of our senior management team;
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the costs of litigation, including settlements and judgments;
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the increased competitive pressures among financial services companies;
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the timely development of and acceptance of new products and services and the perceived overall value of these products and services by businesses and consumers, including the features, pricing and quality compared to our competitors’ products and services;
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rapid technological changes and developments;
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changes in consumer and business spending, borrowing and saving habits and demand for financial services in our market area;
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the ability of key third-party providers to perform their obligations to us;
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changes in auditing or accounting policies and practices, as may be adopted by the financial institution regulatory agencies, the Public Company Accounting Oversight Board or the Financial Accounting Standards Board;
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the occurrence of extraordinary events (such as natural disasters, acts of terrorism, wars, or political conflicts);
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other economic, competitive, governmental, regulatory and technological factors affecting our operations, pricing, products and services and the other risks described elsewhere herein or in the documents incorporated by reference herein and in our other filings with the Commission; and
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our success at managing the risks involved in the foregoing.
Some of these and other factors are discussed in the “Risk Factors” section and elsewhere in this prospectus and in the documents incorporated by reference herein. The development of any or all of these factors could have an adverse impact on our financial position and results of operations.
Any forward-looking statements are based upon management’s beliefs and assumptions at the time they are made. We undertake no obligation to publicly update or revise any forward-looking statements included or incorporated by reference in this prospectus or to update the reasons why actual results could differ from those contained in such statements, whether as a result of new information, future events or otherwise, unless otherwise required to do so by law or regulation. In light of these risks, uncertainties and assumptions, the forward-looking statements discussed in this prospectus or in the documents incorporated by reference herein might not occur, and you should not put undue reliance on any forward-looking statements.
If one or more of the factors affecting our forward-looking information and statements proves incorrect, then our actual results, performance or achievements could differ materially from those expressed in, or implied by, forward-looking information and statements contained in this prospectus and in the information incorporated by reference herein. Therefore, we caution you not to place undue reliance on our forward-looking information and statements. We will not update the forward-looking statements to reflect actual results or changes in the factors affecting the forwarding-looking statements.
Forward-looking statements should not be viewed as predictions, and should not be the primary basis upon which investors evaluate us. Any investor in our common stock should consider all risks and uncertainties disclosed in our filings with the Commission described above under the heading “Where You Can Find More Information,” all of which are accessible on the Commission’s website at http://www.sec.gov.
ABOUT PENNS WOODS BANCORP, INC.
Penns Woods Bancorp, Inc. (the “Company”) is a Pennsylvania corporation (NASDAQ symbol: PWOD) and registered bank holding company headquartered in Williamsport, Pennsylvania. The Company conducts business through its wholly-owned banking subsidiaries, Jersey Shore State Bank and Luzerne Bank, each a Pennsylvania-chartered bank (collectively referred to as the “Banks”). The Company’s two other wholly-owned subsidiaries are Woods Real Estate Development Company, Inc. and Woods Investment Company, Inc. The Company is also a partner in United Insurance Solutions, LLC. The Company’s business has consisted primarily of managing and supervising the Banks, and its principal source of income has been dividends paid by the Banks and Woods Investment Company, Inc. The M Group, Inc. D/B/A The Comprehensive Financial Group (“The M Group”), which operates as a subsidiary of Jersey Shore State Bank, offers insurance and securities brokerage services. Securities are offered by The M Group through Cetera Financial Group, a registered broker-dealer.
The Banks are engaged in commercial and retail banking which includes the acceptance of time, savings, and demand deposits, the funding of commercial, consumer, and mortgage loans, and safe deposit services. Utilizing a branch office network, ATMs, Internet, and telephone banking delivery channels, the Banks deliver their products and services to the communities they reside in.
For the year ended December 31, 2022, net income was $17.4 million, resulting in basic and diluted earnings per share of $2.47. At December 31, 2022, total assets were $2.0 billion, total deposits were $1.6 billion, and shareholders’ equity was $167.7 million.
The Company’s principal executive offices are located at 300 Market Street, Williamsport, Pennsylvania 17701 and our telephone number is (570) 322-1111. Additional information about us is included in our filings with the Commission, which are incorporated by reference into this prospectus. See “Where You Can Find More Information” in this prospectus.
RISK FACTORS
An investment in our securities involves a high degree of risk. Prior to making a decision about investing in our securities, you should carefully read and consider the risks, uncertainties and assumptions discussed under Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2022 and any updates described in our subsequent Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, all of which are incorporated herein by reference and may be amended, supplemented or superseded from time to time by other reports we file with the Commission in the future, together with information in this prospectus and any other information incorporated by reference into this prospectus. See the section of this prospectus entitled “Where You Can Find More Information.” The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business and operations. The occurrence of any of these known or unknown risks might cause you to lose all or part of your investment in the offered securities.
USE OF PROCEEDS
Unless otherwise set forth in the applicable prospectus supplement, we intend to use the net proceeds from the sale of the securities for general corporate purposes. General corporate purposes may include, among other purposes, contribution to the capital of the Banks to support their lending and investing activities; the repayment of debt; to support or fund acquisitions of other institutions or branches, if opportunities for such transactions become available; and investments in activities that are permitted for bank holding companies. We may temporarily invest funds that we do not immediately need for these purposes in investment securities or use them to make payments on our borrowings. The applicable prospectus supplement will provide details on the use of proceeds of any specific offering.
SECURITIES WE MAY OFFER
The securities that may be offered from time to time through this prospectus are:
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common stock;
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preferred stock, which we may issue in one or more series, either separately or represented by depository shares;
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debt securities, which we may issue in one or more series;
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warrants entitling the holders to purchase other securities; and.
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subscription rights consisting of any combination of the above securities.
We will describe the terms of particular securities that we may offer in the future in a prospectus supplement that we will deliver with this prospectus. This prospectus may not be used to offer or sell any securities unless accompanied by a prospectus supplement. In each prospectus supplement we will include, if relevant and material, the following information:
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type and amount of securities that we propose to sell;
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initial public offering price of the securities;
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maturity;
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original issue discount, if any;
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rates and times of payment of interest, dividends or other payments, if any;
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redemption, conversion, exercise, exchange, settlement or sinking fund terms, if any;
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ranking as to priority of payment upon liquidation or right to payment of dividends;
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voting or other rights, if any;
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conversion, exchange or settlement prices or rates, if any, and, if applicable, any provisions for changes to or adjustments in the conversion, exchange or settlement prices or rates and in the securities or other property receivable upon conversion, exchange or settlement;
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names of the underwriters, agents or dealers, if any, through or to which we will sell the securities;
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compensation, if any, of those underwriters, agents or dealers;
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details regarding over-allotment options, if any;
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net proceeds to us;
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information about any securities exchange or automated quotation system on which the securities will be listed or traded;
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material United States federal income tax considerations applicable to the securities;
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any material risk factors associated with the securities; and
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any other material information about the offer and sale of the securities.
In addition, the applicable prospectus supplement and any related free writing prospectus may add, update or change the information contained in this prospectus or in the documents we have incorporated by reference.
DESCRIPTION OF COMMON STOCK
The following description of our common stock is a summary, which includes only those terms of our common stock that we believe will be most important to your decision to invest in our common stock. It is our articles of incorporation and bylaws as well as the Pennsylvania Business Corporation Law of 1988, as amended, referred to as the PBCL, however, and not this summary, which define your rights as a holder of our common stock. This summary is qualified in its entirety by reference to the complete text of these documents and the “PBCL,” which you should read for a full description of the terms of our common stock. Our articles of incorporation and bylaws are incorporated by reference in this prospectus as exhibits to the registration statement of which this prospectus is a part.
Authorized Shares of Capital Stock
The Company’s authorized capital stock consists of 22,500,000 shares of common stock, par value $5.55 per share, and 3,000,000 shares of preferred stock. As of December 31, 2022, we had 7,056,585 shares of common stock issued and outstanding. No shares of preferred stock were issued and outstanding as of December 31, 2022.
Voting Rights
Holders of our common stock are entitled to one vote for every share having voting power on all matters submitted for action by the shareholders. The holders of our common stock do not have cumulative voting rights in the election of directors.
Dividends and Distributions
Holders of common stock are entitled to receive ratably dividends if, as and when dividends are declared from time to time by our board of directors out of funds legally available for that purpose, after payment of dividends required to be paid on outstanding preferred stock, if any. While we are not subject to certain restrictions on dividends applicable to a bank, our ability to pay dividends to the holders of our common stock will depend to a large extent upon the amount of dividends paid by the Banks to us. Regulatory authorities restrict the amount of cash dividends the Banks can declare without prior regulatory approval.
Ranking
Upon liquidation, dissolution or winding up, the holders of common stock are entitled to receive ratably the assets available for distribution to the shareholders after payment of liabilities and accumulated and unpaid dividends and liquidation preferences on outstanding preferred stock, if any.
No Conversion Rights; No Preemptive Rights; No Redemption
Holders of common stock have no preemptive or conversion rights and are not subject to further calls or assessment by us. There are no redemption or sinking fund provisions applicable to our common stock. The rights, preferences and privileges of holders of common stock will be subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock, which our board of directors may designate and issue in the future without further shareholder approval.
Stock Exchange Listing
The Company’s common stock is listed on the Nasdaq Global Select Market under the symbol, “PWOD.”
Fully Paid and Nonassessable
Outstanding shares of common stock are validly issued, fully-paid and nonassessable.
Preferred Stock
The Company’s articles of incorporation authorize the board of directors to fix by resolution the voting rights, designations and preferences, priorities, qualifications, privileges, limitations, restrictions,
options, conversion rights, dividend features, retirement features, liquidation features, redemption features and other special or relative rights of the preferred stock and any series thereof. The board of directors has full authority to issue authorized preferred stock from time to time in one or more series, without further shareholder approval.
Anti-Takeover Provisions
Certain provisions of the Company’s articles of incorporation, bylaws and the PBCL may have an anti-takeover effect and could delay, defer or prevent a tender offer or takeover attempt that a shareholder might consider in its best interest, including those attempts that might result in a premium over the market price for the shares of our common stock held by shareholders.
Pennsylvania Anti-Takeover Provisions
Certain anti-takeover provisions of the PBCL apply to Pennsylvania registered corporations (e.g., publicly traded companies) including those relating to (1) control share acquisitions, (2) disgorgement of profits by certain controlling persons, (3) business combination transactions with interested shareholders, and (4) the rights of shareholders to demand fair value for their stock following a control transaction. Pennsylvania law allows corporations to opt-out of these anti-takeover sections, but we have not opted out of any of these anti-takeover provisions. A general summary of these applicable anti-takeover provisions is set forth below.
Control Share Acquisitions. Pennsylvania law regarding control share acquisitions relates to the act of acquiring for the first time voting power over voting shares (other than (i) shares owned continuously by the same natural person since January 1, 1988, (ii) shares beneficially owned by any natural person or trust, estate, foundation or similar entity to the extent such shares were acquired solely by gift, inheritance, bequest, device or other testamentary distribution, directly or indirectly, from a natural person who beneficially owned the shares prior to January 1, 1988 or (iii) shares acquired pursuant to a stock split, stock dividend or similar distribution with respect to shares that have been beneficially owned continuously since their issuance by the Company by the shareholder that acquired them from the Company or that were acquired from such shareholder pursuant to (ii) above) equal to: (a) at least 20% but less than 33-1∕3%; (b) at least 33- 1∕3% but less than 50%; or (c) 50% or more of the voting power of the corporation. Once a control share acquisition has occurred, then all shares in excess of the triggering threshold, plus shares purchased at any time with the intention of acquiring such voting power or shares purchased within 180 days of the date the triggering threshold was exceeded, are considered control shares. Control shares cannot vote either until their voting rights have been restored by two separate votes of the shareholders, as described below, or until they have been transferred to a person who is not an affiliate of the transferor and does not thereby also become the holder of control shares.
The holder of control shares may wait until the next annual or special meeting after the acquisition took place to submit the question of the restoration of voting rights to the shareholders, or the acquiring person may accelerate the process by agreeing to underwrite the cost of a special meeting of shareholders for that purpose. In either case, the acquiring person is required to furnish for distribution to the shareholders an information statement containing a detailed disclosure concerning the acquiring person, its intentions with respect to ownership of securities of the corporation and other matters. As an alternative, a person submitting a bona fide written offer to make a control share acquisition may request prospective approval by the shareholders of the exercise of the voting rights of the shares proposed to be acquired, provided that the control share acquisition is consummated within 90 days after shareholder approval is obtained. Two shareholders’ votes are required to approve the restoration of voting rights. First, the approval of a majority of all voting power must be obtained. Second, the approval of a majority of all disinterested shareholders must be obtained.
For a period of 24 months after the later of (a) a control share acquisition by an acquiring person who does not properly request consideration of voting rights, or (b) the denial of such a request or lapse of voting rights, the corporation may redeem all the control shares at the average of the high and low public market sales price of the shares on the date notice of the call for redemption is given by the corporation.
Disgorgement of Profits by Certain Controlling Persons. Pennsylvania law regarding disgorgement of profits by certain controlling persons applies in the event that (a) any person or group directly or indirectly publicly discloses or causes to be disclosed that the person or group may seek to acquire control of the corporation, or (b) a person or group acquires, offers to acquire or directly or indirectly publicly discloses (or causes to be disclosed an intent to acquire) 20% or more of the voting power of the corporation and, in either case, sells shares within 18 months thereafter. Any profits from sales of equity securities of the corporation received by the person or group during such 18-month period will belong to the corporation if the securities that were sold were acquired during the 18-month period after or within 24 months prior to becoming a controlling person.
Business Combination Transactions with Interested Shareholders. Pennsylvania law regarding business combination transactions with interested shareholders provides that a person who acquires the direct or indirect beneficial ownership of shares entitled to cast at least 20% of the votes entitled to be cast for the election of directors or an affiliate or associate of the Company who at any time within the prior five years was the beneficial owner, directly or indirectly, of 20% of the voting shares of the Company is an “interested shareholder.” A corporation subject to this provision may not effect mergers or certain other business combinations with the interested shareholder for a period of five years, unless:
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the business combination or the acquisition of stock by means of which the interested shareholder became an interested shareholder is approved by the corporation’s board of directors prior to such stock acquisition;
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the business combination is approved by the affirmative vote of the holders of all the outstanding common shares of the corporation; or
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the business combination is approved by the affirmative vote of the holders of a majority of all shares entitled to vote, excluding votes of shares held by the interested shareholders or their affiliates, and at the time of such vote, the interested shareholder is the beneficial owner of at least 80% of the voting shares of the corporation. This exception applies only if the value of the consideration to be paid by the interested shareholder in connection with the business combination satisfies certain fair price requirements.
After the five-year restricted period, an interested shareholder of the corporation may engage in a business combination with the corporation if (a) the business combination is approved by the affirmative vote of a majority of the shares other than those beneficially owned by the interested shareholder and its affiliates, or (b) the merger is approved at a shareholders meeting and certain fair price requirements are met.
Rights of Shareholders to Demand Full Value for their Stock Following Control Transaction. Under Pennsylvania law, a control transaction is an acquisition by a person or group of the voting power over at least 20% of the voting shares of the corporation. Subject to exceptions, if a Pennsylvania registered corporation is subject to a control transaction, the controlling person or group must provide prompt notice of the transaction to the court and each shareholder of record holding voting shares. Any holder of voting shares may make a written demand on the controlling person or group for payment in cash of the fair value of each voting share at the date on which the control transaction occurs. The minimum value that a shareholder can receive is the highest price paid per share by the controlling person or group within the 90-day period ending on and including the date of the control transaction. If any shareholder believes the fair value of her shares is higher than the price offered by the controlling person or group, the shareholder may file a petition with the court seeking appraisal of the shares.
Blank Check Preferred Stock
The Company’s articles of incorporation provide for the issuance of preferred stock having terms established by our board of directors without shareholder approval.
Staggered Board of Directors
The Company’s articles of incorporation provide for the classification of the board of directors into three classes with each class serving a staggered three-year term. As a result of this classification, only one third of the entire board of directors stands for election in any one year and a minimum of two annual
meetings would be required to elect a majority of the board of directors. This may have the effect of deterring or discouraging, among other things, a proxy contest for control of the Company, the assumption of control of the Company by a holder of a large block of our common stock, and the removal of incumbent management of the Company or the Banks.
Calling of Special Meetings of Shareholders
Pursuant to our bylaws, special meetings of shareholders may only be called by the Chairman of the Company’s board of directors, by the Company’s board of directors, or by the President of the Company.
Advance Notice Requirements for Shareholder Proposals and Director Nominations
The Company’s bylaws provide that notice of any proposal by a shareholder which the shareholder desires to submit to a vote at our annual meeting, including any director nominations, must be made by notice in writing, delivered or mailed by first class United States mail, postage prepaid, to the Secretary of the Company not less than ninety (90) days nor more than one hundred and fifty (150) days prior to any annual meeting of shareholders. Our bylaws also specify requirements as to the contents of the shareholder’s notice or nomination. If notice is not provided in accordance with these provisions, a shareholder’s proposal will not appear on the meeting agenda.
Super Majority Voting Requirements for Certain Transactions
The Company’s articles of incorporation provide that no merger, consolidation, liquidation or dissolution of the Corporation nor any action that would result in the sale or other disposition of all or substantially all of the assets of the Corporation shall be valid unless first approved by the affirmative vote of the holders of at least 66-2/3% of the outstanding shares of Common Stock, unless 75% or more of the members of the Company’s board of directors approve the transaction in advance. This provision of the articles of incorporation does not apply to any merger, consolidation, share exchange or similar transaction involving the Company if (i) members of the Company’s board of directors will constitute at least a majority of the board of directors of the surviving or new corporation or entity immediately after the transaction and (ii) shareholders of the Company will hold in the aggregate voting shares of the surviving or new corporation or entity to be outstanding immediately after completion of the transaction entitled to cast at least a majority of the votes entitled to be cast generally for the election of directors.
Board of Directors May Oppose Any Take-Over Offer
The Company’s articles of incorporation provide that the board of directors may, if it deems it advisable, oppose a tender, or other offer for the Company’s securities, whether the contemplated payment is in cash or in the securities of a corporation, or some other form of consideration. When considering whether to oppose an offer, the board of directors may consider any pertinent issues, including any or all of the following:
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whether the offer price is acceptable based on the historical and present operating results or financial condition of the Company;
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whether a more favorable price could be obtained for the Company’s securities in the future;
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the impact which an acquisition of the Company would have on the employees, depositors and customers of the Company and its subsidiaries in the community which they serve;
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the reputation and business practices of the offeror and its management and affiliates as they would affect the employees, depositors and customers of the Company and its subsidiaries and the future value of the Company’s stock;
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the value of the securities (if any) which the offeror is offering in exchange for the Company’s securities, based on an analysis of the worth of the Company as compared to the corporation or other entity whose securities are being offered; and
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any antitrust or other legal and regulatory issues that are raised by the offer.
If the board of directors determines that an offer should be rejected, it may take any lawful action to accomplish its purpose including:
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advising shareholders not to accept the offer;
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litigation against the offeror;
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filing complaints with governmental and regulatory authorities;
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acquiring the authorized but unissued securities or treasury stock or granting options with respect thereto;
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acquiring a company to create an antitrust or other regulatory problem for the offeror; and
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obtaining a more favorable offer from another individual or entity.
Amendments to Articles of Incorporation
Under the PBCL, an amendment to our articles of incorporation requires, except in limited cases where a greater vote may be required, the affirmative vote of a majority of the votes cast by all shareholders entitled to vote on the matter and the affirmative vote of a majority of the votes cast by all shareholders within each class or series of shares if such class or series is entitled to vote on the matter as a class. The PBCL also provides that our shareholders are not entitled by statute to propose amendments to our articles of incorporation.
The Company’s articles of incorporation provide that, in addition to any affirmative vote required by law, the approval of any amendment to Article 13 (business combinations) of our articles of incorporation requires the affirmative vote of holders of at least 66-2/3% of the outstanding shares of voting stock.
Amendments to Bylaws
The Company’s bylaws provide that our bylaws may be amended or repealed, in whole or in part, by the affirmative vote of a majority of the board of directors at any regular or special meeting of the board of directors. The PBCL provides that the ability of our board of directors to adopt, amend or repeal our bylaws is subject to the power of our shareholders to change such action. The PBCL also provides that our board of directors does not have the authority to adopt or change a bylaw on specified subjects, including, but not limited to, our authorized capital, the personal liability of directors, various matters relating to our board of directors, and matters relating to the voting rights of shareholders.
Transfer Agent and Registrar
Computershare is the transfer agent and registrar for our common stock.
Restrictions on Ownership
The Bank Holding Company Act of 1956 generally prohibits any company that is not engaged in banking activities and activities that are permissible for a bank holding company or a financial holding company from acquiring control of the Company. “Control” is generally defined as ownership of 25% or more of the voting stock or other exercise of a controlling influence. In addition, any existing bank holding company would need the prior approval of the Federal Reserve Board before acquiring 5% or more of the voting stock of the Company. In addition, the Change in Bank Control Act of 1978 prohibits a person or group of persons from acquiring control of a bank holding company unless the Federal Reserve Board has been notified and has not objected to the transaction. Under a rebuttable presumption established by the Federal Reserve Board, the acquisition of 10% or more of a class of voting stock of a bank holding company with a class of securities registered under Section 12 of the Exchange Act, such as the Company, could constitute acquisition of control of the bank holding company. Under the Pennsylvania Banking Code of 1965, prior approval of the Pennsylvania Department of Banking and Securities is required prior to the acquisition of 10% or more of any Pennsylvania chartered bank, such as the Banks, or its holding company.
DESCRIPTION OF PREFERRED STOCK
The complete terms of the preferred stock will be contained in the prospectus supplement and in the applicable amendment to our articles of incorporation creating one or more series of preferred stock that may be adopted by our board of directors in the future. You should read the applicable amendment to our articles of incorporation and the prospectus supplement, which will contain additional information and which may update or modify some of the information below.
The Company’s board of directors is authorized to issue up to 3,000,000 shares of preferred stock, in one or more series, without shareholder approval. As of March 31, 2023, there were no shares of our preferred stock issued and outstanding. Our board of directors has the discretion to determine the designations, rights, preferences, privileges, qualifications and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges, liquidation preferences and sinking fund terms, of each series of preferred stock, any or all of which may be greater than the rights of the common stock.
Preferred Stock We May Offer
Prior to the issuance of a new series of preferred stock, we will amend our articles of incorporation by filing a certificate of designation that will designate the number of shares of that series and the terms of that series. The issuance of any preferred stock could adversely affect the rights of the holders of common stock and, therefore, reduce the value of the common stock. The ability of our board of directors to issue preferred stock could discourage, delay or prevent a takeover or other corporate action.
The terms of any particular series of preferred stock will be described in the prospectus supplement relating to that particular series of preferred stock, including, where applicable:
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the designation, stated value and liquidation preference of such preferred stock and the number of shares offered;
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the offering price;
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the dividend rate or rates (or method of calculation), the date or dates from which dividends shall accrue, and whether such dividends shall be cumulative or noncumulative and, if cumulative, the dates from which dividends shall commence to cumulate;
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any redemption or sinking fund provisions;
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the amount that shares of such series shall be entitled to receive in the event of our liquidation, dissolution or winding-up;
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the terms and conditions, if any, on which shares of such series shall be convertible or exchangeable for shares of our stock of any other class or classes, or other series of the same class;
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the voting rights, if any, of shares of such series;
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the status as to reissuance or sale of shares of such series redeemed, purchased or otherwise reacquired, or surrendered to us on conversion or exchange;
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the conditions and restrictions, if any, on the payment of dividends or on the making of other distributions on, or the purchase, redemption or other acquisition by us or any subsidiary, of the common stock or of any other class of our shares ranking junior to the shares of such series as to dividends or upon liquidation;
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the conditions and restrictions, if any, on the creation of indebtedness of us or of any subsidiary, or on the issuance of any additional stock ranking on a parity with or prior to the shares of such series as to dividends or upon liquidation; and
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any additional dividend, liquidation, redemption, sinking or retirement fund and other rights, preferences, privileges, limitations and restrictions of such preferred stock.
Unless otherwise specified in the applicable prospectus supplement, each series of preferred stock will, upon issuance, rank senior to the common stock and on a parity in all respects with each other outstanding series of preferred stock. The rights of the holders of our preferred stock will be subordinate to those of
our general creditors. The description of any series of preferred stock that may be issued is qualified by reference to the provisions of the applicable certificate of amendment establishing the terms of such series.
The transfer agent and registrar for the preferred stock will be set forth in the applicable prospectus supplement.
DESCRIPTION OF DEPOSITARY SHARES
The depositary shares will be issued under deposit agreements to be entered into between us and a bank or trust company, as depositary, all to be set forth in the applicable prospectus supplement relating to any or all depositary shares in respect of which this prospectus is being delivered. We will file a copy of the deposit agreement and the depositary receipt with the SEC each time we issue a series of depositary shares, and these depositary receipts and deposit agreement will be incorporated by reference into the registration statement of which this prospectus forms a part.
General
If we elect to offer fractional interests in shares of preferred stock, we will provide for the issuance by a depositary to the public of receipts for depositary shares. Each depositary share will represent fractional interests of preferred stock. We will deposit the shares of preferred stock underlying the depositary shares under a deposit agreement between us and a bank or trust company selected by us. The bank or trust company must have its principal office in the United States and a combined capital and surplus of at least $50 million. The depositary receipts will evidence the depositary shares issued under the deposit agreement.
The deposit agreement will contain terms applicable to the holders of depositary shares in addition to the terms stated in the depositary receipts. Each owner of depositary shares will be entitled to all the rights and preferences of the preferred stock underlying the depositary shares in proportion to the applicable fractional interest in the underlying shares of preferred stock. The depositary will issue the depositary receipts to individuals purchasing the fractional interests in shares of the related preferred stock according to the terms of the offering described in a prospectus supplement.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash distributions received for the preferred stock to the entitled record holders of depositary shares in proportion to the number of depositary shares that the holder owns on the relevant record date. The depositary will distribute only an amount that can be distributed without attributing to any holder of depositary shares a fraction of one cent. The depositary will add the undistributed balance to and treat it as part of the next sum received by the depositary for distribution to holders of depositary shares.
If there is a non-cash distribution, the depositary will distribute property received by it to the entitled record holders of depositary shares, in proportion, insofar as possible, to the number of depositary shares owned by the holders, unless the depositary determines, after consultation with us, that it is not feasible to make such distribution. If this occurs, the depositary may, with our approval, sell such property and distribute the net proceeds from the sale to the holders. The deposit agreement also will contain provisions relating to how any subscription or similar rights that we may offer to holders of the preferred stock will be available to the holders of the depositary shares.
Conversion, Exchange and Redemption
If any series of preferred stock underlying the depositary shares may be converted or exchanged, each record holder of depositary receipts will have the right or obligation to convert or exchange the depositary shares represented by the depositary receipts.
Whenever we redeem shares of preferred stock held by the depositary, the depositary will redeem, at the same time, the number of depositary shares representing the preferred stock. The depositary will redeem the depositary shares from the proceeds it receives from the corresponding redemption, in whole or in part, of the applicable series of preferred stock. The depositary will mail a notice of redemption to the record holders of the depositary shares that are to be redeemed between 30 and 60 days before the date fixed for
redemption. The redemption price per depositary share will be equal to the applicable fraction of the redemption price per share on the applicable series of preferred stock. If less than all the depositary shares are to be redeemed, the depositary will select which shares to be redeemed by lot, proportionate allocation or another method.
After the date fixed for redemption, the depositary shares called for redemption will no longer be outstanding. When the depositary shares are no longer outstanding, all rights of the holders will end, except the right to receive money, securities or other property payable upon redemption.
Voting
When the depositary receives notice of a meeting at which the holders of the preferred stock are entitled to vote, the depositary will mail the particulars of the meeting to the record holders of the depositary shares. Each record holder of depositary shares on the record date may instruct the depositary on how to vote the shares of preferred stock underlying the holder’s depositary shares. The depositary will try, if practical, to vote the number of shares of preferred stock underlying the depositary shares according to the instructions. The depositary will abstain from voting shares of the preferred stock to the extent it does not receive specific instructions from the holders of depositary shares representing such preferred stock. We will agree to take all reasonable action requested by the depositary to enable it to vote as instructed.
Record Date
Whenever (1) any cash dividend or other cash distribution will become payable, any distribution other than cash shall be made, or any rights, preferences or privileges will be offered with respect to the preferred stock, or (2) the depositary receives notice of any meeting at which holders of preferred stock are entitled to vote or of which holders of preferred stock are entitled to notice, or of the mandatory conversion of or any election on our part to call for the redemption of any preferred stock, the depositary will in each such instance fix a record date (that will be the same as the record date for the preferred stock) for the determination of the holders of depositary receipts (x) who will be entitled to receive such dividend, distribution, rights, preferences or privileges or the net proceeds of the sale thereof or (y) who will be entitled to give instructions for the exercise of voting rights at any such meeting or to receive notice of such meeting or of such redemption or conversion, subject to the provisions of the deposit agreement.
Amendments
We and the depositary may agree to amend the deposit agreement and the depositary receipt evidencing the depositary shares. Any amendment that (a) imposes or increases certain fees, taxes or other charges payable by the holders of the depositary shares as described in the deposit agreement or (b) otherwise prejudices any substantial existing right of holders of depositary shares, will not take effect until 30 days after the depositary has mailed notice of the amendment to the record holders of depositary shares. Any holder of depositary shares that continues to hold its shares at the end of the 30-day period will be deemed to have agreed to the amendment.
Termination
We may direct the depositary to terminate the deposit agreement by mailing a notice of termination to holders of depositary shares at least 30 days before termination. In addition, a deposit agreement will automatically terminate if:
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the depositary has redeemed all related outstanding depositary shares, or
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we have liquidated, terminated or wound up our business and the depositary has distributed the preferred stock of the relevant series to the holders of the related depositary shares.
The depositary may likewise terminate the deposit agreement if at any time 60 days have expired after the depositary have delivered to us a written notice of its election to resign and a successor depositary has not been appointed and accepted its appointment. If any depositary receipts remain outstanding after the date of termination, the depositary thereafter will discontinue the transfer of depositary receipts, will suspend the distribution of dividends to the holders thereof, and will not give any further notices (other than notice
of such termination) or perform any further acts under the deposit agreement except as provided below and except that the depositary will continue (1) to collect dividends on the preferred stock and any other distributions with respect thereto and (2) to deliver the preferred stock together with such dividends and distributions and the net proceeds of any sales of rights, preferences, privileges or other property, without liability for interest thereon, in exchange for depositary receipts surrendered. At any time after the expiration of two years from the date of termination, the depositary may sell the preferred stock then held by it at public or private sales, at such place or places and upon such terms as it deems proper and may thereafter hold the net proceeds of any such sale, together with any money and other property then held by it, without liability for interest thereon, for the pro rata benefit of the holders of depositary receipts that have not been surrendered.
Payment of Fees and Expenses
We will pay all fees, charges and expenses of the depositary, including the initial deposit of the preferred stock and any redemption of the preferred stock. Holders of depositary shares will pay transfer and other taxes and governmental charges and any other charges as are stated in the deposit agreement for their accounts.
Resignation and Removal of Depositary
At any time, the depositary may resign by delivering notice to us, and we may remove the depositary. Resignations or removals will take effect upon the appointment of a successor depositary and its acceptance of the appointment. The successor depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50 million.
Reports
The depositary will forward to the holders of depositary shares all reports and communications from us that are delivered to the depositary and that we are required by law, the rules of an applicable securities exchange or our Articles of Incorporation to furnish to the holders of the preferred stock. Neither we nor the depositary will be liable if the depositary is prevented or delayed by law or any circumstances beyond its control in performing its obligations under the deposit agreement. The deposit agreement limits our obligations and the depositary’s obligations to performance in good faith of the duties stated in the deposit agreement. Neither we nor the depositary will be obligated to prosecute or defend any legal proceeding connected with any depositary shares or preferred stock unless the holders of depositary shares requesting us to do so furnish us with satisfactory indemnity. In performing our obligations, we and the depositary may rely upon the written advice of our counsel or accountants, on any information that competent people provide to us and on documents that we believe are genuine.
DESCRIPTION OF WARRANTS
We may issue, together with other securities or separately, warrants to purchase our common stock or preferred stock. We may issue the warrants under warrant agreements to be entered into between us and a bank or trust company, as warrant agent, all as set forth in the applicable prospectus supplement. The warrant agent would act solely as our agent in connection with the warrants of the series being offered and would not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
This section, along with the description in the applicable prospectus supplement, is a summary of certain provisions of the forms of warrant agreements and warrant certificates and is not complete. We urge you to read any applicable warrant agreements and warrant certificates, because those documents, and not these descriptions, define your rights as a holder of warrants. We will file copies of the forms of the warrant agreements and warrant certificates as exhibits to the registration statement of which this prospectus is a part or an amendment thereto, or as exhibits to a Current Report on Form 8-K.
The applicable prospectus supplement will describe the following terms, where applicable, of warrants in respect of which this prospectus is being delivered:
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the title of the warrants;
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the designation, amount and terms of the securities for which the warrants are exercisable and the procedures and conditions relating to the exercise of such warrants;
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the designation and terms of the other securities, if any, with which the warrants are to be issued and the number of warrants issued with each such security;
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the price or prices at which the warrants will be issued;
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the aggregate number of warrants;
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any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price of the warrants;
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the price or prices at which the securities purchasable upon exercise of the warrants may be purchased;
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if applicable, the date on and after which the warrants and the securities purchasable upon exercise of the warrants will be separately transferable;
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if applicable, a discussion of the material U.S. federal income tax considerations applicable to the warrants;
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any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants;
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the date on which the right to exercise the warrants shall commence and the date on which the right shall expire;
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the maximum or minimum number of warrants which may be exercised at any time;
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whether the warrants are to be issued in registered or bearer form;
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whether the warrants are extendible and the period or periods of such extendibility; and
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information with respect to book-entry procedures, if any.
Before exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding-up, or to exercise voting rights, if any.
Each warrant will entitle the holder thereof to purchase for cash the amount of shares of common stock or preferred stock at the exercise price as will in each case be set forth in, or be determinable as set forth in, the applicable prospectus supplement. Warrants may be exercised at any time up to the close of business on the expiration date set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void. Warrants may be exercised as set forth in the applicable prospectus supplement relating to the warrants offered thereby. Upon receipt of payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement, we will, as soon as practicable, forward the purchased securities. If less than all of the warrants represented by the warrant certificate are exercised, a new warrant certificate will be issued for the remaining warrants.
Each warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, that holder’s warrant(s).
DESCRIPTION OF DEBT SECURITIES
The following is a description of the material features, terms and provisions of debt securities that we may offer. This summary does not purport to be exhaustive and may not contain all the information that is important to you. Therefore, you should read the applicable prospectus supplement relating to those debt securities and any other offering materials that we may provide.
We may issue debt securities from time to time in one or more series. Unless otherwise stated in the applicable prospectus supplement, we will not be limited in the amount of debt securities that we may issue, and neither the senior debt securities nor the subordinated debt securities will be secured by any of our property or assets. Thus, by owning debt securities, you are one of our unsecured creditors.
We are a holding company and conduct substantially all of our operations through subsidiaries. As a result, claims of holders of debt securities will generally have a junior position to claims of creditors of our subsidiaries (including, without limitation, the Banks), except to the extent that we may be recognized as a creditor of those subsidiaries. In addition, our right to participate as a shareholder in any distribution of assets of any subsidiary (and thus the ability of holders of debt securities to benefit from such distribution as our creditors) is junior to creditors of each subsidiary, including depositors of the Banks.
We may issue senior debt securities or subordinated debt securities under one or separate indentures, which may be supplemented or amended from time to time. Senior debt securities will be issued under one or more senior indentures, and subordinated debt securities will be issued under one or more subordinated indentures. Any senior debt indentures and subordinated debt indentures are referred to individually in this prospectus as the “indenture” and collectively as the “indentures.” The particular terms of a series of debt securities will be described in a prospectus supplement relating to such series of debt securities. Any indentures will be subject to and governed by the Trust Indenture Act, as amended, and may be supplemented or amended from time to time following their execution and will be filed as exhibits to the registration statement of which this prospectus forms a part or incorporated therein by reference. To the extent we desire any debt securities issued to qualify as regulatory capital, such debt securities must conform to the applicable regulations of our primary bank regulators.
Any indentures will contain the full legal text of the matters described in this section of the prospectus. Because this section is a summary, it does not describe every aspect of the debt securities or any applicable indentures. This summary is therefore subject to and is qualified in its entirety by reference to all the provisions of any applicable indenture, including any definitions of terms used in such indenture. Your rights will be defined by the terms of any applicable indenture, not the summary provided herein. This summary is also subject to and qualified by reference to the description of the particular terms of a particular series of debt securities described in the applicable prospectus supplement or supplements.
The debt securities may be denominated and payable in U.S. dollars. We may also issue debt securities, from time to time, with the principal amount, interest or other amounts payable on any relevant payment date to be determined by reference to one or more currency exchange rates, securities or baskets of securities, commodity prices, indices or any other financial, economic or other measure or instrument, including the occurrence or non-occurrence of any event or circumstance. In addition, we may issue debt securities as part of any units issued by us. All references in this prospectus or any prospectus supplement to other amounts will include premiums, if any, other cash amounts payable under the applicable indenture, and the delivery of securities or baskets of securities under the terms of the debt securities. Debt securities may bear interest at a fixed rate, which may be zero, or a floating rate.
Some of the debt securities may be issued as original issue discount debt securities. Original issue discount securities bear no interest or bear interest at below market rates and will be sold at a discount below their stated principal amount. A prospectus supplement relating to an issue of original issue discount securities will contain information relating to United States federal income tax, accounting, and other special considerations applicable to original issue discount securities.
We will set forth in the applicable prospectus supplement the terms, if any, on which a series of debt securities may be convertible into or exchangeable for our preferred stock, common stock or 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 shares of our preferred stock, common stock or other securities that holders of the series of debt securities receive would be subject to adjustment.
We will generally have no obligation to repurchase, redeem, or change the terms of debt securities upon any event (including a merger, consolidation, change in control or disposition of substantially all of our assets) that might have an adverse effect on our credit quality.
Terms of Debt Securities to be Included in the Prospectus Supplement
The prospectus supplement relating to any series of debt securities that we may offer will set forth the price or prices at which the debt securities will be offered, and will contain the specific terms of the debt securities of that series. These terms may include, without limitation, the following:
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the title of the debt securities and whether they are senior debt securities or subordinated debt securities;
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the amount of debt securities issued and any limit on the amount that may be issued;
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the price(s) (expressed as a percentage of the principal amount) at which the debt securities will be issued;
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if other than the principal amount of those debt securities, the portion of the principal amount payable upon declaration of acceleration of the maturity of those debt securities;
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the maturity date or dates, or the method for determining the maturity date or dates, on which the principal of the debt securities will be payable and any rights of extension;
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the rate or rates, which may be fixed or variable, or the method of determining the rate or rates at which the debt securities will bear interest, if any;
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the date or dates from which any interest will accrue and the date or dates on which any interest will be payable, the regular related record dates and whether we may elect to extend or defer such interest payment dates;
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the place or places where payments will be payable, where the debt securities may be surrendered for registration of transfer or exchange and where notices or demands to or upon us may be served;
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the period or periods within which, the price or prices at which and the other terms and conditions upon which the debt securities may be redeemed, in whole or in part, at our option, if we are to have such an option;
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our obligation, if any, to redeem, repay or purchase the debt securities pursuant to any sinking fund or analogous provision or at the option of a holder of the debt securities, and the period or periods within which, or the date and dates on which, the price or prices at which and the other terms and conditions upon which the debt securities will be redeemed, repaid or purchased, in whole or in part, pursuant to that obligation;
•
the currency or currencies in which the debt securities may be purchased, are denominated and are payable, which may be a foreign currency or units of two or more foreign currencies or a composite currency or currencies, and the related terms and conditions, including whether we or the holders of any such debt securities may elect to receive payments in respect of such debt securities in a currency or currency unit other than that in which such debt securities are stated to be payable;
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whether the amount of payments of principal of and premium, if any, or interest, if any, on the debt securities may be determined with reference to an index, formula or other method, which index, formula or method may, but need not be, based on a currency, currencies, currency unit or units or composite currency or currencies or with reference to changes in prices of particular securities or commodities, and the manner in which the amounts are to be determined;
•
any additions to, modifications of or deletions from the terms of the debt securities with respect to events of default, amendments, merger, consolidation and sale, or covenants set forth in the applicable indenture;
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whether the debt securities will be in registered or bearer form or both and, if in registered form, their denominations, if other than $1,000 and any integral multiple thereof, and, if in bearer form, their denominations, if other than $5,000, and the related terms and conditions;
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if the debt securities will be issuable only in global form, the depository or its nominee with respect to the debt securities and the circumstances under which the global security may be registered for transfer or exchange in the name of a person other than the depository or its nominee;
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the applicability, if any, of the defeasance and covenant defeasance provisions of the indenture and any additional or different terms on which the series of debt securities may be defeased;
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whether and the extent to which the debt securities will be guaranteed, any guarantors and the form of any guarantee;
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whether the debt securities can be converted into or exchanged for other securities of the Company and the related terms and conditions;
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whether the debt securities will be sold as part of units consisting of debt securities and other securities;
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whether the debt securities will be issued in certificated or book-entry form;
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if the debt securities are to be issued upon the exercise of warrants, the time, manner and place for the debt securities to be authenticated and delivered;
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any trustee, depositary, authenticating agent, paying agent, transfer agent, registrar or other agent with respect to the debt securities; and
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any other terms of the debt securities.
DESCRIPTION OF SUBSCRIPTION RIGHTS
The following is a summary of the general terms of the subscription rights to purchase common stock or other securities that we may offer to shareholders using this prospectus. This summary does not purport to be complete in all respects and is subject to and qualified entirely by reference to the applicable forms of subscription agent agreement and subscription certificate for a full description of all terms of any series of subscription rights.
Subscription rights may be issued independently or together with any other security and may or may not be transferable. As part of any subscription rights offering, we may enter into a standby underwriting or other arrangement under which the underwriters or any other person would purchase any securities that are not purchased in such subscription rights offering. If we issue subscription rights, they will be governed by a separate subscription agent agreement that we will sign with a bank or trust company to be named in the applicable prospectus supplement that will serve as rights agent. The rights agent will act solely as our agent and will not assume any obligation to any holders of subscription rights certificates or beneficial owners of subscription rights.
The prospectus supplement relating to any subscription rights that we offer will describe the specific terms of the offering and the subscription rights, including the record date for shareholders entitled to the subscription rights distribution, the number of subscription rights issued and the number of shares of common stock or other securities that may be purchased upon exercise of the subscription rights, the exercise price of the subscription rights, the date on which the subscription rights will become effective and the date on which the subscription rights will expire, and any material United States federal income tax considerations.
In general, a subscription right entitles the holder to purchase for cash a specific number of shares of common stock or other securities at a specified exercise price. The rights are normally issued to shareholders as of a specific record date, may be exercised only for a limited period of time and become void following the expiration of such period. If we determine to issue subscription rights, we will accompany this prospectus with a prospectus supplement that will describe, among other things:
•
the record date for shareholders entitled to receive the subscription rights;
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the number of shares of common stock or other securities that may be purchased upon exercise of each subscription right;
•
the exercise price of the subscription rights;
•
whether the subscription rights are transferable;
•
the period during which the subscription rights may be exercised and when they will expire;
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the steps required to exercise the subscription rights;
•
whether the subscription rights include “oversubscription rights” so that the holder may purchase more securities if other holders do not purchase their full allotments; and
•
whether we intend to sell the shares of common stock or other securities that are not purchased in the rights offering to an underwriter or other purchaser under a contractual “standby” commitment or other arrangement.
If fewer than all of the subscription rights issued in any rights offering are exercised, then 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. After the close of business on the expiration date of a subscription rights offering, all unexercised subscription rights will become void.
GLOBAL SECURITIES
Book-Entry, Delivery and Form
If so provided in a prospectus supplement, the securities initially will be issued in a book-entry form and represented by one or more global securities. The global securities will be deposited with, or on behalf of, The Depository Trust Company, New York, New York, as depositary, or (“DTC”), and registered in the name of Cede & Co., the nominee of DTC. Unless and until it is exchanged for individual certificates evidencing securities under the limited circumstances described below, a global security may not be transferred except as a whole by the depositary to its nominee or by the nominee to the depositary, or by the depositary or its nominee to a successor depositary or to a nominee of the successor depositary.
DTC has advised us that it is:
•
a limited purpose trust company organized under the New York Banking Law;
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a “banking organization” within the meaning of the New York Banking Law;
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a member of the Federal Reserve System;
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a “clearing corporation” within the meaning of the New York Uniform Commercial Code; and
•
a “clearing agency” registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934, as amended, or (“Exchange Act”).
DTC holds securities that its participants deposit with DTC. DTC also facilitates the settlement among its participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in participants’ accounts, thereby eliminating the need for physical movement of securities certificates. “Direct participants” in DTC include securities brokers and dealers, including underwriters, banks, trust companies, clearing corporations and other organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation, or (“DTCC”). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others, which we sometimes refer to as indirect participants, that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
Participants of securities under the DTC system must be made by or through direct participants, which will receive a credit for the securities on DTC’s records. The ownership interest of the actual purchaser of a security, which we sometimes refer to as a beneficial owner, is in turn recorded on the direct and indirect participants’ records. Beneficial owners of securities will not receive written confirmation from DTC of
their purchases. However, beneficial owners are expected to receive written confirmations providing details of their transactions, as well as periodic statements of their holdings from the direct or indirect participants through which they purchased securities. Transfers of ownership interests in global securities are to be accomplished by entries made on the books of participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the global securities, except under the limited circumstances described below.
To facilitate subsequent transfers, all global securities deposited by direct participants with DTC will be registered in the name of DTC’s partnership nominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of securities with DTC and their registration in the name of Cede & Co. or such other nominee will not change the beneficial ownership of the securities. DTC has no knowledge of the actual beneficial owners of the securities. DTC’s records reflect only the identity of the direct participants to whose accounts the securities are credited, which may or may not be the beneficial owners. The participants are responsible for keeping account of their holdings on behalf of their customers.
So long as the securities are in book-entry form, you will receive payments and may transfer securities only through the facilities of the depositary and its direct and indirect participants. We will maintain an office or agency in the location specified in the prospectus for the applicable securities, where notices and demands in respect of the securities and the indenture may be delivered to us and where certificated securities may be surrendered for payment, registration of transfer or exchange.
Conveyance of notices and other communications by DTC or direct participants, by direct participants to indirect participants and by direct participants and indirect participants to beneficial owners will be governed by arrangements among them, subject to any legal requirements in effect from time to time.
Redemption notices will be sent to DTC. If less than all of the securities of a particular series are being redeemed, DTC’s practice is to determine by lot the amount of the interest of each direct participant in the securities of such series to be redeemed.
Neither DTC nor Cede & Co. (or such other DTC nominee) will consent or vote with respect to the securities. Under its usual procedures, DTC will mail an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns the consenting or voting rights of Cede & Co. to those direct participants to whose accounts the securities of such series are credited on the record date, identified in a listing attached to the omnibus proxy.
So long as securities are in book-entry form, we will make payments on those securities to the depository or its nominee, as the registered owner of such securities, by wire transfer of immediately available funds. If securities are issued in definitive certificated form under the limited circumstances described below, we will have the option of making payments by check mailed to the addresses of the persons entitled to payment or by wire transfer to bank accounts in the United States designated in writing to the applicable trustee or other designated party at least 15 days before the applicable payment date by the persons entitled to payment, unless a shorter period is satisfactory to the applicable trustee or other designated party.
Redemption proceeds, distributions and dividend payments on the securities will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC. DTC’s practice is to credit direct participants’ accounts upon DTC’s receipt of funds and corresponding detail information from us on the payment date in accordance with their respective holdings shown on DTC records. Payments by participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with securities held for the account of customers in bearer form or registered in “street name.” Those payments will be the responsibility of participants and not of DTC or us, subject to any statutory or regulatory requirements in effect from time to time. Payment of redemption proceeds, distributions and dividend payments to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC, is our responsibility, disbursement of payments to direct participants is the responsibility of DTC, and disbursement of payments to the beneficial owners is the responsibility of direct and indirect participants.
Except under the limited circumstances described below, purchases of securities will not be entitled to have securities registered in their names and will not receive physical delivery of securities. Accordingly,
each beneficial owner must rely on the procedures of DTC and its participants to exercise any rights under the securities and the indenture.
The laws of some jurisdictions may require that some purchasers of securities take physical delivery of securities in definitive form. Those laws may impair the ability to transfer or pledge beneficial interests in securities.
DTC may discontinue providing its services as securities depositary with respect to the securities at any time by giving reasonable notice to us. Under such circumstances, in the event that a successor depositary is not obtained, securities certificates are required to be printed and delivered.
As noted above, beneficial owners of a particular series of securities generally will not receive certificates representing their ownership interests in those securities. However, if:
•
DTC notifies us that it is unwilling or unable to continue as a depositary for the global security or securities representing such series of securities or if DTC ceases to be a clearing agency registered under the Exchange Act at a time when it is required to be registered and a successor depositary is not appointed within 90 days of the notification to us or of our becoming aware of DTC’s ceasing to be so registered, as the case may be;
•
we determine, in our sole discretion, not to have such securities represented by one or more global securities; or
•
an Event of Default has occurred and is continuing with respect to such series of securities,
we will prepare and deliver certificates for such securities in exchange for beneficial interests in the global securities. Any beneficial interest in a global security that is exchangeable under the circumstances described in the preceding sentence will be exchangeable for securities in definitive certificated form registered in the names that depositary directs. It is expected that these directions will be based upon directions received by the depositary from its participants with respect to ownership of beneficial interests in the global securities.
Other
The information in this section of this prospectus concerning DTC and its book-entry system has been obtained from sources that we believe to be reliable, but we do not take responsibility for this information. This information has been provided solely as a matter of convenience. The rules and procedures of DTC are solely within the control of DTC and could change at any time. Neither we nor the trustee nor any agent of ours or of the trustee, nor any broker, dealer, underwriter or agent of ours involved in the offer or sale of any offered securities, has any control over DTC and none of us or them takes any responsibility for DTC’s activities. You are urged to contact DTC or its participants directly to discuss those matters. In addition, although we expect that DTC will perform the foregoing procedures, DTC is under no obligation to perform or continue to perform such procedures and such procedures may be discontinued at any time. Neither we nor the trustee nor any agent of ours or of the trustee, nor any broker, dealer, underwriter or agent of ours involved in the offer or sale of any offered securities, will have any responsibility for the performance or nonperformance by DTC or its participants of these or any other rules or procedures governing their respective operations.
PLAN OF DISTRIBUTION
We may sell the securities being offered hereby, from time to time, by one or more of the following methods, or any combination thereof:
•
to or through underwriters or dealers, with or without an underwriting syndicate, for them to offer and sell to the public;
•
directly to one or more purchasers in negotiated purchases or in competitively bid transactions;
•
through designated agents;
•
directly to holders of warrants exercisable for our securities upon the exercise of such warrants; or
•
through a combination of any of these methods of sale.
Each time that we use this prospectus to sell our securities, we will also provide a prospectus supplement that contains the specific terms of the offering. We will set forth the terms of the offering of securities in a prospectus supplement, including:
•
the name or names of any underwriters, dealers, or agents and the type and amounts of securities underwritten or purchased by each of them;
•
the public offering price of the securities and the proceeds to us and any discounts, commissions or concessions allowed or reallowed or paid to underwriters or dealers; and
•
any delayed delivery arrangements.
The offer and sale of the securities described in this prospectus by us, the underwriters, or the third parties described above may be effected from time to time in one or more transactions, either:
•
at a fixed price or prices, which may be changed;
•
at market prices prevailing at the time of sale;
•
at prices related to the prevailing market prices; or
•
at negotiated prices.
Any public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time.
Unless otherwise specified in the related prospectus supplement, each series of securities will be a new issue with no established trading market, other than shares of our common stock, which are listed on Nasdaq. Any common stock sold pursuant to a prospectus supplement will be listed on Nasdaq, subject to official notice of issuance. We may elect to list any series of preferred stock on an exchange, but we are not obligated to do so. It is possible that one or more underwriters may make a market in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. No assurance can be given as to the liquidity of, or the trading market for, any offered securities.
If underwriters are used in the sale of any securities, the securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The securities may be either offered to the public through underwriting syndicates represented by managing underwriters, or directly by underwriters. Generally, the underwriters’ obligations to purchase the securities will be subject to certain conditions precedent. The underwriters will be obligated to purchase all of the securities if they purchase any of the securities.
If we use dealers in the sale of securities, we will sell securities to such dealers as principals. The dealers may then resell the securities to the public at varying prices to be determined by such dealers at the time of resale. We may solicit offers to purchase the securities directly, and we may sell the securities directly to institutional or other investors, who may be deemed underwriters within the meaning of the Securities Act with respect to any resales of those securities. The terms of these sales will be described in the applicable prospectus supplement. If we use agents in the sale of securities, unless otherwise indicated in the prospectus
supplement, they will use their reasonable best efforts to solicit purchases for the period of their appointment. Unless otherwise indicated in a prospectus supplement, if we sell directly, no underwriters, dealers or agents would be involved. We will not make an offer of securities in any jurisdiction that does not permit such an offer.
We may sell the securities through agents from time to time. The prospectus supplement will name any agent involved in the offer or sale of our securities and any commissions we pay to them. Generally, any agent will be acting on a best efforts basis for the period of its appointment.
We may authorize underwriters, dealers, or agents to solicit offers by certain purchasers to purchase our securities at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The contracts will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth any commissions or discounts we pay for solicitation of these contracts.
Agents and underwriters may be entitled to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments that the agents or underwriters may be required to make in respect thereof. Agents and underwriters may be customers of, engage in transactions with, or perform services for us in the ordinary course of business.
In connection with any offering, the underwriters may purchase and sell securities in the open market. These transactions may include short sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater number of securities than they are required to purchase in an offering. Stabilizing transactions consist of certain bids or purchases of the offered securities or any underlying securities made for the purpose of preventing or retarding a decline in the market price of the securities while an offering is in progress. These activities by the underwriters may stabilize, maintain or otherwise affect the market price of the securities. As a result, the price of the securities may be higher than the price that otherwise might exist in the open market. If these activities are commenced, they may be discontinued by the underwriters at any time. These transactions may be effected on an exchange or automated quotation system, if the securities are listed on an exchange or admitted for trading on an automated quotation system, in the over-the-counter market, or otherwise.
We may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement so indicates in connection with those derivatives, then the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of securities. The third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus supplement (or a post-effective amendment).
LEGAL MATTERS
Stevens & Lee, P.C., Reading, Pennsylvania, will pass upon certain legal matters with respect to the securities offered by us from time to time pursuant to this prospectus, unless we indicate otherwise in a prospectus supplement.
The name of the law firm advising any underwriters or agents with respect to certain issues relating to any offering will be set forth in the applicable prospectus supplement.
EXPERTS
The financial statements as of December 31, 2022 and 2021 and for each of the three years in the period ended December 31, 2022, included in our Annual Report on Form 10-K for the year ended December 31, 2022, have been incorporated by reference in this Prospectus and have been so incorporated in reliance on the reports of S.R. Snodgrass, P.C., an independent registered public accounting firm, given on the authority of said firm as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution
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Commission registration fee
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$ |
9,367 |
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Legal fees and expenses
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*
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Accounting fees and expenses
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*
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Trustee fees and expenses
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*
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Printing expenses
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*
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Other
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*
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Total
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$ |
*
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*
These fees and expenses depend on the securities offered and the number of securities issuances and cannot be estimated at this time.
Item 15.
Indemnification of Directors and Officers
The PBCL contains provisions for mandatory and discretionary indemnification of a corporation’s directors, officers and other personnel and related matters.
Section 1741 of the PBCL authorizes a Pennsylvania corporation to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), by reason of the fact that the person is or was a representative of the corporation, or is or was serving at the request of the corporation as a representative of another domestic or foreign corporation for profit or not-for-profit, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with the action or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action or proceeding by judgment, order, settlement or conviction or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that the person did not act in good faith and in a manner that he reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 1742 of the PBCL further authorizes a Pennsylvania corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a representative of the corporation or is or was serving at the request of the corporation as a representative of another domestic or foreign corporation for profit or not-for-profit, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred in connection with the defense or settlement of the action if the person acted in good faith and in a manner the person reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which the person has been adjudged to be liable to the corporation unless and only to the extent that the proper court determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for the expenses that the court deems proper.
Under Section 1743 of the PBCL, to the extent that a representative of a business corporation has been successful on the merits or otherwise in defense of any action or proceeding referred to in Section 1741 of the PBCL or Section 1742 of the PBCL, or in defense of any claim, issue or matter therein, a Pennsylvania corporation must indemnify such person against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
Section 1744 of the PBCL provides that, unless ordered by a court, any indemnification under Section 1741 of the PBCL or 1742 of the PBCL shall be made by the corporation only as authorized in the specific case upon a determination that the representative met the applicable standard of conduct, and such determination will be made by the board of directors (i) by a majority vote of a quorum of directors not parties to the action or proceeding; (ii) if such a quorum is not obtainable, or if obtainable and a majority of a quorum of disinterested directors so directs, by independent legal counsel in a written opinion; or (iii) by the shareholders.
Section 1745 of the PBCL provides that expenses (including attorneys’ fees) incurred in defending any action or proceeding may be paid by the corporation in advance of the final disposition of such action or proceeding referred to in the applicable Subchapter of the PBCL upon receipt of an undertaking by or on behalf of such person to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation.
Section 1746 of the PBCL provides generally that, except in any case where the act or failure to act giving rise to the claim for indemnification is determined by a court to have constituted willful misconduct or recklessness, the indemnification and advancement of expenses provided by the applicable Subchapter of the PBCL shall not be deemed exclusive of any other rights to which a person seeking indemnification or advancement may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors or otherwise.
Section 1747 of the PBCL grants to a corporation the power to purchase and maintain insurance on behalf of any person who is or was a representative of the corporation or is or was serving at the request of the corporation as a representative of another domestic or foreign corporation for profit or not-for-profit, partnership, joint venture, trust or other enterprise against any liability asserted against and incurred by such person in such capacity as a representative of the corporation or arising out of his or her status as such, whether or not the corporation would have the power to indemnify such person under the applicable Subchapter of the PBCL. Sections 1748 and 1749 extend the indemnification and advancement of expenses provisions contained in the applicable Subchapter of the PBCL to successor corporations in consolidations, mergers or divisions and to representatives serving as fiduciaries of employee benefit plans.
Section 1750 of the PBCL provides that the indemnification and advancement of expenses provided by, or granted pursuant to, the applicable Subchapter of the PBCL, shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a representative of the corporation and shall inure to the benefit of the heirs and personal representative of such person.
Our articles of incorporation and bylaws provide that we must indemnify each of our present and former directors and officers to the fullest extent authorized or permitted by Pennsylvania law.
Our articles of incorporation provide that we must indemnify, to the fullest extent permitted by law, every person who is or was a director, officer, employee, or agent of the corporation, or of any corporation which he served as such at the request of the Company, against all expenses and liabilities reasonably incurred by or imposed upon him in connection with any proceeding to which he may be made, or threatened to be made, any party, or in which he may become involved by reason of his being or having been a director, officer, employee or agent of the Company, or of such other corporation, whether or not he is a director, officer, employee or agent of the Company or such other corporation at the time the expenses or liabilities are incurred.
Our bylaws provide that we must indemnify any present or former officer or director who was or is a party to, or is threatened to be made a party to, or who is called to be a witness in connection with, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that such person is or was an officer and/or director of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust of other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding; however, we are not obligated to indemnify such persons under our bylaws under certain specified circumstances, including when indemnification would be expressly prohibited by applicable law, when the indemnified person did not act in good faith and in a manner which he reasonably believed to be
in, or not opposed to, the best interest of the Company, or when the conduct of the indemnified person has been determined to constitute self-dealing, willful misconduct or recklessness.
We maintain insurance to cover our directors and officers for liabilities which may be incurred by our directors and officers in the performance of their duties. We have also entered into an amended and restated employment agreement with our chief executive officer which also provides for indemnification.
Item 16.
Exhibits
EXHIBIT INDEX
Exhibit No.
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Description
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1.1 |
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Form of Underwriting Agreement(1)
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3.1 |
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3.2 |
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4.1* |
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4.2* |
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4.3 |
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Form of Senior Debt Security(1)
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4.4 |
|
|
|
Form of Subordinated Debt Security(1)
|
|
|
|
4.5 |
|
|
|
Form of Common Stock Warrant Agreement(1)
|
|
|
|
4.6 |
|
|
|
Form of Preferred Stock Warrant Agreement(1)
|
|
|
|
4.7 |
|
|
|
Form of Common Stock Certificate(1)
|
|
|
|
4.8 |
|
|
|
Form of Amendment to Articles of Incorporation Creating New Series of Preferred Stock(1)
|
|
|
|
4.9 |
|
|
|
Specimen Certificate for Preferred Stock(1)
|
|
|
|
5.1* |
|
|
|
|
|
|
|
8.1 |
|
|
|
Opinion of Stevens & Lee, P.C. as to Tax Matters(1)
|
|
|
|
23.1* |
|
|
|
|
|
|
|
23.2 |
|
|
|
|
|
|
|
24.1 |
|
|
|
|
|
|
|
25.1 |
|
|
|
Form T-1 Statement of Eligibility of Trustee to act as Trustee under the Indenture for Senior Indebtedness.(2)
|
|
|
|
25.2 |
|
|
|
Form T-1 Statement of Eligibility of Trustee to act as Trustee under the Indenture for Senior Subordinated Indebtedness.(2)
|
|
|
|
107* |
|
|
|
|
|
(1)
To be filed, if necessary, by an amendment to this registration statement or as an exhibit to a Current Report on Form 8-K and incorporated by reference herein.
(2)
To be filed separately, if necessary, electronically under electronic form type “305 B2” pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
*
Filed herewith.
Item 17.
Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) (§230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however, that Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) 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 Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(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 of 1933 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) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(8) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act (“TIA”) in accordance with the rules and regulations promulgated by the Commission under Section 305(b)(2) of the TIA.
EXHIBIT INDEX
Exhibit No.
|
|
|
Description
|
|
|
|
1.1 |
|
|
|
Form of Underwriting Agreement(1)
|
|
|
|
3.1 |
|
|
|
|
|
|
|
3.2 |
|
|
|
|
|
|
|
4.1* |
|
|
|
|
|
|
|
4.2* |
|
|
|
|
|
|
|
4.3 |
|
|
|
Form of Senior Debt Security(1)
|
|
|
|
4.4 |
|
|
|
Form of Subordinated Debt Security(1)
|
|
|
|
4.5 |
|
|
|
Form of Common Stock Warrant Agreement(1)
|
|
|
|
4.6 |
|
|
|
Form of Preferred Stock Warrant Agreement(1)
|
|
|
|
4.7 |
|
|
|
Form of Common Stock Certificate(1)
|
|
|
|
4.8 |
|
|
|
Form of Amendment to Articles of Incorporation Creating New Series of Preferred Stock(1)
|
|
|
|
4.9 |
|
|
|
Specimen Certificate for Preferred Stock(1)
|
|
|
|
5.1* |
|
|
|
|
|
|
|
8.1 |
|
|
|
Opinion of Stevens & Lee, P.C. as to Tax Matters(1)
|
|
|
|
23.1* |
|
|
|
|
|
|
|
23.2 |
|
|
|
|
|
|
|
24.1 |
|
|
|
|
|
|
|
25.1 |
|
|
|
Form T-1 Statement of Eligibility of Trustee to act as Trustee under the Indenture for Senior Indebtedness.(2)
|
|
|
|
25.2 |
|
|
|
Form T-1 Statement of Eligibility of Trustee to act as Trustee under the Indenture for Senior Subordinated Indebtedness.(2)
|
|
|
|
107* |
|
|
|
|
|
(1)
To be filed, if necessary, by an amendment to this registration statement or as an exhibit to a Current Report on Form 8-K and incorporated by reference herein.
(2)
To be filed separately, if necessary, electronically under electronic form type “305 B2” pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
*
Filed herewith.
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 Williamsport, Commonwealth of Pennsylvania, on June 27, 2023.
PENNS WOODS BANCORP, INC.
By:
/s/ Richard A. Grafmyre
Richard A. Grafmyre
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Richard A. Grafmyre and Brian L. Knepp, or either of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign this Registration Statement (including all pre-effective and post-effective amendments thereto and all registration statements filed pursuant to Rule 462(b) which incorporate this Registration Statement by Reference), 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 and necessary to be done in connection therewith as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming that all said attorneys-in-fact and agents, or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons on behalf of the Registrant and in the capacities indicated on June 27, 2023.
|
Signature
|
|
|
Title
|
|
|
/s/ Richard A. Grafmyre
Richard A. Grafmyre
|
|
|
Chief Executive Officer and Director
(Principal Executive Officer)
|
|
|
/s/ Brian L. Knepp
Brian L. Knepp
|
|
|
President and Chief Financial Officer and Director
(Principal Financial and Accounting Officer)
|
|
|
/s/ R. Edward Nestlerode, Jr.
R. Edward Nestlerode, Jr.
|
|
|
Chairman of the Board of Directors
|
|
|
/s/ Daniel K. Brewer
Daniel K. Brewer
|
|
|
Director
|
|
|
/s/ Michael J. Casale, Jr.
Michael J. Casale, Jr.
|
|
|
Director
|
|
|
Signature
|
|
|
Title
|
|
|
/s/ William J. Edwards
William J. Edwards
|
|
|
Director
|
|
|
/s/ D. Michael Hawbaker
D. Michael Hawbaker
|
|
|
Director
|
|
|
/s/ Leroy H. Keiler, III
Leroy H. Keiler, III
|
|
|
Director
|
|
|
/s/ Cameron W. Kephart
Cameron W. Kephart
|
|
|
Director
|
|
|
/s/ Charles E. Kranich, II
Charles E. Kranich, II
|
|
|
Director
|
|
|
/s/ Robert Q. Miller
Robert Q. Miller
|
|
|
Director
|
|
|
/s/ John G. Nackley
John G. Nackley
|
|
|
Director
|
|
|
/s/ Jill F. Schwartz
Jill F. Schwartz
|
|
|
Director
|
|
EXHIBIT 4.1
PENNS WOODS BANCORP, INC.
AS ISSUER
AND
[_________________],
AS TRUSTEE
INDENTURE
DATED AS OF [____________, ________]
SENIOR DEBT SECURITIES
CROSS-REFERENCE SHEET*
between
Provisions of Sections 310 through 318 of the Trust Indenture
Act of 1939, as amended, and the within Indenture between PENNS WOODS BANCORP, INC. and [_____________], Trustee:
SECTION OF ACT |
SECTION OF INDENTURE |
|
|
310(a)(1) and (2) |
7.09 |
310(a)(3) and (4) |
Not applicable |
310(b) |
7.08 and 7.10 |
310(c) |
Not applicable |
311(a) and (b) |
7.13 |
311(c) |
Not applicable |
312(a) |
5.01 and 5.02(a) |
312(b) and (c) |
5.02(b) and (c) |
313(a) |
5.04(a) |
313(b)(1) |
Not applicable |
313(b)(2) |
5.04(b) |
313(c) |
5.04(c) |
313(d) |
5.04(d) |
314(a) |
5.03 |
314(b) |
Not applicable |
314(c)(1) and (2) |
14.04 |
314(c)(3) |
Not applicable |
314(d) |
Not applicable |
314(e) |
15.05 |
314(f) |
Not applicable |
315(a), (c) and (d) |
7.01 |
315(b) |
7.14 |
315(e) |
6.14 |
316(a)(1) |
6.12 |
316(a)(2) |
Omitted |
316(a) last sentence |
8.04 |
316(b) |
6.08 |
317(a) |
6.03 and 6.04 |
317(b) |
4.03(a) |
318(a) |
15.07 |
* This Cross-Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS |
1 |
SECTION 1.01 Definitions |
1 |
|
|
ARTICLE 2 ISSUE, EXECUTION, REGISTRATION
AND EXCHANGE OF SECURITIES |
5 |
SECTION 2.01 Amount Unlimited; Issuable in Series |
5 |
SECTION 2.02 Form of Trustee’s Certificate of Authentication |
5 |
SECTION 2.03 Form of Securities Generally; Establishment of Terms of Series |
5 |
SECTION 2.04 Securities in Global Form |
8 |
SECTION 2.05 Denominations; Record Date; Payment of Interest |
8 |
SECTION 2.06 Execution, Authentication, Delivery and Dating of Securities |
9 |
SECTION 2.07 Exchange and Registration of Transfer of Securities |
11 |
SECTION 2.08 Temporary Securities |
13 |
SECTION 2.09 Mutilated, Destroyed, Lost or Stolen Securities and Coupons |
15 |
SECTION 2.10 Cancellation |
15 |
SECTION 2.11 Book-Entry Only System |
16 |
|
|
ARTICLE 3 REDEMPTION OF SECURITIES |
16 |
SECTION 3.01 Redemption of Securities; Applicability of Section |
16 |
SECTION 3.02 Notice of Redemption; Selection of Securities |
16 |
SECTION 3.03 Payment of Securities Called for Redemption |
17 |
SECTION 3.04 Redemption Suspended During Event of Default |
18 |
|
|
ARTICLE 4 PARTICULAR COVENANTS OF THE COMPANY |
18 |
SECTION 4.01 Payment of Principal, Premium and Interest |
18 |
SECTION 4.02 Offices for Notices and Payments, etc. |
18 |
SECTION 4.03 Provisions as to Paying Agent |
19 |
SECTION 4.04 Statement as to Compliance |
20 |
SECTION 4.05 Corporate Existence |
20 |
SECTION 4.06 Reserved |
21 |
SECTION 4.07 Waiver of Covenants |
21 |
SECTION 4.08 Notice of Default |
21 |
|
|
ARTICLE 5 SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
21 |
SECTION 5.01 Securityholder Lists |
21 |
SECTION 5.02 Preservation and Disclosure of Lists |
21 |
SECTION 5.03 Reports by the Company |
22 |
SECTION 5.04 Reports by the Trustee |
22 |
|
|
ARTICLE 6 REMEDIES |
22 |
SECTION 6.01 Events of Default; Acceleration of Maturity |
22 |
SECTION 6.02 Rescission and Annulment |
23 |
SECTION 6.03 Collection of Indebtedness and Suits for Enforcement by Trustee |
24 |
SECTION 6.04 Trustee May File Proofs of Claim |
24 |
SECTION 6.05 Trustee May Enforce Claims Without Possession of Securities or Coupons |
25 |
SECTION 6.06 Application of Money Collected |
25 |
SECTION 6.07 Limitation on Suits |
26 |
SECTION 6.08 Unconditional Right of Securityholders to Receive Principal and Interest |
26 |
SECTION 6.09 Restoration of Rights and Remedies |
26 |
SECTION 6.10 Rights and Remedies Cumulative |
26 |
SECTION 6.11 Delay or Omission Not Waiver |
26 |
SECTION 6.12 Control by Securityholders |
27 |
SECTION 6.13 Waiver of Past Defaults |
27 |
SECTION 6.14 Undertaking for Costs |
27 |
SECTION 6.15 Waiver of Stay or Extension Laws |
28 |
ARTICLE 7 CONCERNING THE TRUSTEE |
28 |
SECTION 7.01 Duties and Responsibilities of Trustee |
28 |
SECTION 7.02 Reliance on Documents, Opinions, etc. |
29 |
SECTION 7.03 No Responsibility for Recitals, etc. |
29 |
SECTION 7.04 Ownership of Securities |
30 |
SECTION 7.05 Moneys to be Held in Trust |
30 |
SECTION 7.06 Compensation and Expenses of Trustee |
30 |
SECTION 7.07 Officers’ Certificate as Evidence |
30 |
SECTION 7.08 Disqualifications; Conflicting Interest of Trustee |
31 |
SECTION 7.09 Eligibility of Trustee |
31 |
SECTION 7.10 Resignation or Removal of Trustee |
31 |
SECTION 7.11 Acceptance by Successor Trustee |
32 |
SECTION 7.12 Successor by Merger, etc. |
32 |
SECTION 7.13 Limitations on Rights of Trustee as Creditor |
33 |
SECTION 7.14 Notice of Default |
33 |
SECTION 7.15 Appointment of Authenticating Agent |
33 |
|
|
ARTICLE 8 CONCERNING THE SECURITYHOLDERS |
34 |
SECTION 8.01 Action by Securityholders |
34 |
SECTION 8.02 Proof of Execution by Securityholders |
35 |
SECTION 8.03 Who Are Deemed Absolute Owners |
35 |
SECTION 8.04 Company-Owned Securities Disregarded |
36 |
SECTION 8.05 Revocation of Consents; Future Securityholders Bound |
36 |
SECTION 8.06 Record Date |
36 |
|
|
ARTICLE 9 SECURITYHOLDERS’ MEETINGS |
36 |
SECTION 9.01 Purposes of Meeting |
36 |
SECTION 9.02 Call of Meetings by Trustee |
37 |
SECTION 9.03 Call of Meetings by Company or Securityholders |
37 |
SECTION 9.04 Qualifications for Voting |
37 |
SECTION 9.05 Regulations |
37 |
SECTION 9.06 Voting |
38 |
|
|
ARTICLE 10 SUPPLEMENTAL INDENTURES |
38 |
SECTION 10.01 Supplemental Indentures without Consent of Securityholders |
38 |
SECTION 10.02 Supplemental Indentures with Consent of Holders |
39 |
SECTION 10.03 Compliance with Trust Indenture Act; Effect of Supplemental Indentures |
40 |
SECTION 10.04 Notation on Securities |
40 |
|
|
ARTICLE 11 CONSOLIDATION, MERGER, SALE OR CONVEYANCE |
40 |
SECTION 11.01 Company May Consolidate, etc., on Certain Terms |
40 |
SECTION 11.02 Successor Corporation Substituted |
41 |
SECTION 11.03 Opinion of Counsel and Officers’ Certificate to be Given Trustee |
41 |
|
|
ARTICLE 12 SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS |
41 |
SECTION 12.01 Discharge of Indenture |
41 |
SECTION 12.02 Deposited Moneys to be Held in Trust by Trustee |
42 |
SECTION 12.03 Paying Agent to Repay Moneys Held |
42 |
SECTION 12.04 Return of Unclaimed Moneys |
42 |
|
|
ARTICLE 13 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
42 |
SECTION 13.01 Indenture and Securities Solely Corporate Obligations |
42 |
ARTICLE 14 DEFEASANCE AND COVENANT DEFEASANCE |
42 |
SECTION 14.01 Applicability of Article |
42 |
SECTION 14.02 Defeasance and Discharge |
43 |
SECTION 14.03 Covenant Defeasance |
43 |
SECTION 14.04 Conditions to Defeasance or Covenant Defeasance |
43 |
SECTION 14.05 Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions |
45 |
|
|
ARTICLE 15 MISCELLANEOUS PROVISIONS |
45 |
SECTION 15.01 Benefits of Indenture Restricted to Parties and Securityholders |
45 |
SECTION 15.02 Provisions Binding on Company’s Successors |
45 |
SECTION 15.03 Addresses for Notices, etc., to Company and Trustee |
45 |
SECTION 15.04 Notice to Holders of Securities; Waiver |
45 |
SECTION 15.05 Evidence of Compliance with Conditions Precedent |
46 |
SECTION 15.06 Legal Holidays |
47 |
SECTION 15.07 Trust Indenture Act to Control |
47 |
SECTION 15.08 Execution in Counterparts |
47 |
SECTION 15.09 Governing Law |
47 |
SECTION 15.10 Separability Clause |
47 |
THIS INDENTURE, dated as of [____________, ________]
between PENNS WOODS BANCORP, INC., a corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania (the
“Company”), and [____________________] (the “Trustee,” which term shall include any successor trustee
appointed pursuant to Article 7 of this Indenture).
WHEREAS, the Company deems it necessary to issue
from time to time for its lawful purposes securities (the “Securities”) evidencing its unsecured indebtedness and has
duly authorized the execution and delivery of this Indenture to provide for the issuance of the Securities in one or more series, unlimited
as to principal amount, to bear such rates of interest, to mature at such time or times, and to have such other provisions as shall be
fixed as hereinafter provided; and
WHEREAS, the Company represents that all acts and
things necessary to constitute these presents a valid indenture and agreement according to its terms have been done and performed, and
the execution of this Indenture has in all respects been duly authorized, and the Company, in the exercise of legal right and power in
it vested, is executing this Indenture;
NOW, THEREFORE:
In order to declare the terms and conditions upon
which the Securities are authenticated, issued and received, and in consideration of the premises, of the purchase and acceptance of the
Securities by the holders thereof and of the sum of One Dollar to it duly paid by the Trustee at the execution of these presents, the
receipt whereof is hereby acknowledged, the Company covenants and agrees with the Trustee, for the equal and proportionate benefit of
the respective holders from time to time of the Securities, as follows:
ARTICLE 1
DEFINITIONS
SECTION
1.01 Definitions.
The terms defined in this Section (except
as herein 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. All other terms used in this Indenture that are defined
in the Trust Indenture Act of 1939 or that are by reference therein defined in the Securities Act of 1933 shall have the meanings (except
as herein otherwise expressly provided or unless the context otherwise requires) assigned to such terms in the Trust Indenture Act of
1939 and in the Securities Act of 1933 as in force at the date of this Indenture as originally executed. All accounting terms used herein
and not expressly defined shall have the meanings assigned to such terms in accordance with United States generally accepted accounting
principles, and the term “generally accepted accounting principles” means such accounting principles as are generally accepted
at the time of any computation. The words “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. The terms defined in this
Article have the meanings assigned to them in this Article and include the plural as well as the singular.
“Additional Amounts” shall mean
any additional amounts to be paid by the Company in respect of Securities of a series, as may be specified pursuant to Section 2.03(b) hereof
and in such Security and under the circumstances specified therein, in respect of specified taxes, assessments or other governmental charges
imposed on certain holders who are United States Aliens.
“Authorized
Newspaper” shall mean a newspaper (which,
in the case of the United Kingdom, will, if practicable, be the Financial Times (London Edition) and, in the case of Luxembourg, will,
if practicable, be the Luxemburger Wort) of general circulation in the place of publication, published in an official language of the
country of publication and customarily published at least once a day for at least five days in each calendar week. Whenever successive
weekly publications in an Authorized Newspaper are authorized or required hereunder, they may be made (unless otherwise provided herein)
on the same or different days of the week and in the same or different Authorized Newspapers. If it shall be impractical in the opinion
of the Trustee to make any publication of any notice required hereby in an Authorized Newspaper, any publication or other notice in lieu
thereof which is made or given with the approval of the Trustee shall constitute a sufficient publication of such notice.
“Authorized Officer” shall have
the meaning set forth in Section 3.02 hereof.
“Bearer Security” shall mean
any Security established pursuant to Section 2.01 and Section 2.03(b) hereof which is payable to bearer (including without
limitation any Security in temporary or permanent global bearer form) and title to which passes by delivery only, but does not include
any coupons.
“Board of Directors” or “Board”
shall mean the Board of Directors of the Company or any duly authorized committee of such Board.
“Board Resolution” shall mean
a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors or
by a committee acting under authority of or appointment by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
“Business Day” shall mean, unless
otherwise specified pursuant to Section 2.03(b), with respect to any Place of Payment or any other particular location referred to
in this Indenture or in the Securities, a day that in the city (or in any one of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking institutions are authorized or required by law or regulation
to be closed.
“Capital Stock” shall mean,
as to shares of a particular corporation, outstanding shares of stock of any class, whether now or hereafter authorized, irrespective
of whether such class shall be limited to a fixed sum or percentage in respect of the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary liquidation, dissolution or winding up of such corporation.
“Clearstream, Luxembourg” shall
mean Clearstream Banking, société anonyme, Luxembourg, or any successor thereof.
“Common Depositary” shall have
the meaning set forth in Section 2.08 hereof.
“Commission” shall mean the
Securities and Exchange Commission or any successor agency.
“Company” shall mean the person
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.
“Company Request,” “Company
Order” and “Company Consent” mean, respectively, a written request, order or consent signed in the name of
the Company by its Chief Executive Officer, President, Chief Financial Officer, Vice President, General Counsel, Deputy or Associate General
Counsel or Treasurer and delivered to the Trustee.
“coupon” shall mean any interest
coupon appertaining to a Bearer Security.
“Default” or “default”
shall have the meaning specified in Article 6.
“Dollar” or “$”
shall mean a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
“Euroclear” shall mean Euroclear
Bank, headquartered in Brussels, or any successor thereof, as the operator of the Euroclear System.
“Euro Security” shall mean any
Bearer Security, any Security initially represented by a Security in temporary global form exchangeable for Bearer Securities and any
Security in permanent global form exchangeable for Bearer Securities.
“Event of Default” shall have
the meaning specified in Article 6.
“Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended.
“Exchange Date” shall have the
meaning set forth in Section 2.08.
“holder,” “holder of
Securities,” “securityholder” or other similar term shall mean (a) in the case of any Registered Security,
the person in whose name such Security is registered in the Security Register kept by the Company for that purpose, in accordance with
the terms hereof, and (b) in the case of any Bearer Security, the bearer thereof, and as used with respect to any coupon appertaining
to any Bearer Security, the term “holder” shall mean the bearer thereof.
“Indenture” shall mean this
instrument as originally executed and delivered or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including without limitation, the forms and terms of particular series
of Securities established as contemplated by Article 2.
“Officers’ Certificate”
shall mean a certificate signed by the Chief Executive Officer, President, Chief Financial Officer, Vice President, General Counsel, Deputy
or Assistant General Counsel or Treasurer of the Company and delivered to the Trustee.
“Opinion of Counsel” shall mean
an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company and who shall be reasonably satisfactory
to the Trustee, or who may be other counsel reasonably satisfactory to the Trustee.
“Original Issue Discount Securities”
shall mean any Securities that are initially sold at a discount from the principal amount thereof and that provide upon an Event of Default
for declaration of an amount less than the principal amount thereof to be due and payable upon acceleration thereof.
“Outstanding” or “outstanding,”
when used with reference to Securities, shall, subject to the provisions of Section 7.08, Section 8.01 and Section 8.04,
mean, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:
(a)
Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b)
Securities, or portions thereof, for the payment or redemption of which moneys 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 and held in trust
by the Company (if the Company shall act as its own paying agent) for the holders of such Securities and any coupons appertaining thereto;
provided, that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption
shall have been given as provided in Article 3, or provision satisfactory to the Trustee shall have been made for giving such notice;
(c)
Securities that have been defeased pursuant to Section 14.02 hereof; and
(d)
Securities that have been paid pursuant to Section 2.09, or Securities in exchange for, in lieu of and in substitution for
which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07, unless proof satisfactory
to the Trustee is presented that any such Securities are held by bona fide holders in due course.
“Periodic Offering” shall mean
an offering of Securities of a series, from time to time, the specific terms of which (including, without limitation, the rate or rates
of interest or formula for determining the rate or rates of interest thereon, if any, the maturity date or dates thereof and the redemption
provisions, if any, with respect thereto) are to be determined by the Company upon the issuance of such Securities.
“Person” or “person”
shall mean any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment,” when used
with respect to the Securities of any series, means the place or places where, subject to the provisions of Section 4.02, the principal
of (and premium, if any, on) and any interest on the Securities of that series are payable as specified as contemplated by Section 2.03(b).
“Possessions,” when used with
respect to the United States, shall include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and Northern Mariana
Islands.
“record date” as used with respect
to any interest payment date shall have the meaning specified in Section 2.05.
“Registered Security” shall
mean any Security established pursuant to Section 2.01 and Section 2.03(b) that is registered on the Security Register
of the Company.
“Responsible Officer,” when
used with respect to the Trustee, shall mean any officer within the Corporate Trust Office of the Trustee (or any successor group of the
Trustee), including any Vice President, Assistant Vice President, Assistant Secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated officers and also shall mean, 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” shall have the
meaning set forth in the preamble of this Indenture.
“Securities Act” shall mean
the Securities Act of 1933, as amended.
“Security Register” and “Security
Registrar” shall have the respective meanings set forth in Section 2.07(a) hereof.
“Subsidiary” shall mean, in
respect of any Person, any corporation, association, partnership, limited liability company or other business entity of which more than
50% of the total voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard
to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by (a) such Person, (b) such Person and one or more Subsidiaries of such Person or (c) one or more
Subsidiaries of such Person.
“Trust Indenture Act,” except
as otherwise provided in this Indenture, shall mean the Trust Indenture Act of 1939, as amended, as in force at the date of this Indenture
as originally executed.
“Trustee” shall mean the person
identified as “Trustee” in the first paragraph hereof until the acceptance of appointment of a successor trustee pursuant
to the provisions of Article 7, and thereafter shall mean such successor trustee.
“United States Alien” shall
mean any person who, for United States federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident
alien fiduciary of a foreign estate or trust, or a foreign partnership to the extent that one or more of its members is, for United States
federal income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate
or trust.
“U.S. Depositary” shall mean,
with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more permanent global Securities,
the person designated as U.S. Depositary by the Company pursuant to Section 2.03(b), which must be a clearing agency registered under
the Exchange Act, until a successor U.S. Depositary shall have become such pursuant to the applicable provisions of this Indenture, and
thereafter “U.S. Depositary” shall mean or include each person who is then a U.S. Depositary hereunder, and if at any time
there is more than one such person, “U.S. Depositary” as used with respect to the Securities of any series shall mean the
U.S. Depositary with respect to the Securities of such series.
“Vice President” when used with
respect to the Company or the Trustee shall mean any vice president, whether or not designated by a number or word or words added before
or after the title “vice president,” including any Executive or Senior Vice President.
ARTICLE 2
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
SECTION
2.01 Amount Unlimited; Issuable in Series.
Upon the execution of this Indenture, or from time
to time thereafter, Securities up to the aggregate principal amount and containing terms and conditions from time to time authorized by
or pursuant to a Board Resolution, or in an indenture supplemental hereto, as set forth in Section 2.03, may be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and make available for delivery the Securities
to or upon Company Order, without any further action by the Company but subject to the provisions of Section 2.03, or in an indenture
supplemental hereto, as set forth in Section 2.03.
The Securities may be issued in one or more series.
The aggregate principal amount of Securities of all series that may be authenticated and delivered and outstanding under this Indenture
is not limited hereunder. The Securities of a particular series may be issued up to the aggregate principal amount of Securities for such
series from time to time authorized by or pursuant to a Board Resolution.
SECTION
2.02 Form of Trustee’s Certificate of Authentication.
The Trustee’s certificate of authentication
shall be in substantially the following form:
[Form of Trustee’s Certificate of Authentication]
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated: ___________________ |
[___________________], as Trustee |
|
|
By: |
|
|
|
Authorized Signatory |
SECTION
2.03 Form of Securities Generally; Establishment of Terms of Series.
(a)
The Registered Securities, if any, of each series, the Bearer Securities, if any, of each series and related coupons, if any, the
temporary global Securities of each series, if any, and the permanent global Securities of each series, if any, shall be in the forms
established from time to time in or pursuant to one or more Board Resolutions (and, to the extent established pursuant to rather than
set forth in one or more Board Resolutions, in an Officers’ Certificate (to which shall be attached true and correct copies of the
relevant Board Resolution(s)) detailing such establishment) or established in an indenture supplemental hereto.
The Securities may be issued in typewritten, printed
or engraved form with such letters, numbers or other marks of identification or designation (including “CUSIP” numbers, if
then generally in use) 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 the Securities may be listed, or to
conform to usage. Unless otherwise specified as contemplated hereinafter, Securities in bearer form shall have interest coupons attached.
(b)
At or prior to the initial issuance of Securities of any series, the particular terms of Securities of such series shall be established
in or pursuant to one or more Board Resolutions (and to the extent established pursuant to rather than set forth in one or more Board
Resolutions, in an Officers’ Certificate (to which shall be attached true and correct copies of the relevant Board Resolutions(s))
detailing such establishment) or established in an indenture supplemental hereto, including the following:
(1)
the designation of the particular series (which shall distinguish such series from all other series);
(2)
the aggregate principal amount of such series which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant
to this Indenture and except for any Securities which, pursuant to Section 2.06, are deemed never to have been authenticated and
delivered hereunder);
(3)
whether Securities of the series are to be issuable as Registered Securities, Bearer Securities (with or without coupons) or both,
whether any Securities of the series are to be issuable initially in temporary global form with or without coupons and, if so, the name
of the Common Depositary with respect to any such temporary global Security, and whether any Securities of the series are to be issuable
in permanent global form with or without coupons and, if so, whether beneficial owners of interests in any such permanent global Security
may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner provided in Section 2.06 and the name of the Common Depositary
or the U.S. Depositary with respect to any such permanent global Security;
(4)
the date as of which any Bearer Securities of such series and any temporary Security in global form representing Outstanding Securities
of such series shall be dated, if other than the date of original issuance of the first Securities of the series to be issued;
(5)
the person to whom any interest on any Registered Security of the series shall be payable, if other than the person in whose name
that Security (or one or more predecessor Securities) is registered at the close of business on the regular record date for such interest,
the manner in which, or the person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they severally mature, the extent to which, or the manner in which,
any interest payable on a temporary global Security on an interest payment date will be paid if other than in the manner provided in Section 2.08
and the extent to which, or the manner in which, any interest payable on a permanent global Security on an interest payment date will
be paid;
(6)
the date or dates on which the principal of the Securities of such series is payable;
(7)
the rate or rates, and if applicable the method used to determine the rate, at which the Securities of such series shall bear interest,
if any, the date or dates from which such interest shall accrue, the date or dates on which such interest shall be payable and the record
date or dates for the interest payable on any Registered Securities on any interest payment date;
(8)
the place or places at which, subject to the provisions of Section 4.02, the principal of (and premium, if any, on) and any
interest on Securities of such series shall be payable, any Registered Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and notices and demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served;
(9)
the obligation, if any, of the Company to redeem or purchase Securities of such series, at the option of the Company or at the
option of a holder thereof, pursuant to any sinking fund or other redemption provisions and 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 so redeemed or purchased, in whole or in part;
(10)
if other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Registered Securities of
such series shall be issuable, and the denomination or denominations in which any Bearer Securities of the series shall be issuable, if
other than the denomination of $5,000;
(11)
if other than the principal amount thereof, the portion of the principal amount of Securities of such series which shall be payable
upon declaration of acceleration of the maturity thereof;
(12)
the currency, currencies or currency units in which payment of the principal of (and premium, if any, on) and any interest on any
Securities of the series shall be payable if other than the currency of the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America for purposes of the definition of “Outstanding” in Section 1.01;
(13)
if the principal of (and premium, if any, on) or any interest on the Securities of the series are to be payable, at the election
of the Company or a holder thereof, in one or more currencies or currency units, other than that or those in which the Securities are
stated to be payable, the currency or currencies in which payment of the principal of (and premium, if any, on) and any interest on Securities
of such series as to which such election is made shall be payable, and the periods within which and the terms and conditions upon which
such election is to be made;
(14)
if the amount of payments of principal of (and premium, if any, on) or any interest on the Securities of the series may be determined
with reference to an index, the manner in which such amounts shall be determined;
(15)
whether the Securities will be issued in book-entry only form;
(16)
any interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such series;
(17)
if either or both of Section 14.02 and Section 14.03 do not apply to the Securities of the series;
(18)
whether and under what circumstances the Company will pay Additional Amounts in respect of any series of Securities and whether
the Company has the option to redeem such Securities rather than pay such Additional Amounts;
(19)
any provisions relating to the extension of maturity of, or the renewal of, Securities of such series, or the conversion of Securities
of such series into other securities of the Company;
(20)
any provisions relating to the purchase or redemption of all or any portion of a tranche or series of Securities, including the
period of notice required to redeem those Securities;
(21)
the terms and conditions, if any, pursuant to which the Securities of the series are secured; and
(22)
any other terms of the Securities or provisions relating to the payment of principal of, premium (if any) or interest thereon,
including, but not limited to, whether such Securities are issuable at a discount or premium, as amortizable Securities, and if payable
in, convertible or exchangeable for commodities or for the securities of the Company or any third party.
All Securities of any one series need not be issued
at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the
Board Resolution or Officers’ Certificate referred to above or as set forth in an indenture supplemental hereto, and, unless otherwise
provided, the authorized principal amount of any series may be increased to provide for issuances of additional Securities of such series.
If so provided by or pursuant to the Board Resolution or Officers’ Certificate or supplemental indenture referred to above, the
terms of such Securities to be issued from time to time may be determined as set forth in such Board Resolution, Officers’ Certificate
or supplemental indenture, as the case may be. All Securities of any one series shall be substantially identical except as to denomination,
interest rate, maturity and other similar terms and except as may be provided otherwise by or pursuant to such Board Resolution, Officers’
Certificate or supplemental indenture.
SECTION
2.04 Securities in Global Form.
If Securities of a series are issuable in global
form, as specified as contemplated by Section 2.03(b), then, notwithstanding clause (10) of Section 2.03(b) and the
provisions of Section 2.05, any such Security in global form shall represent such of the Securities of such series Outstanding as
shall be specified therein, and any such Security in global form may provide that it shall represent the aggregate amount of Securities
Outstanding from time to time endorsed thereon and that the aggregate amount of Securities Outstanding represented thereby may from time
to time be reduced to reflect any exchanges of beneficial interests in such Security in global form for Securities of such series as contemplated
herein. Any endorsement of a Security in global form to reflect the amount, or any decrease in the amount, of Securities Outstanding represented
thereby shall be made by the Trustee or the Security Registrar in such manner and upon instructions given by such person or persons as
shall be specified in such Security in global form or in the Company Order to be delivered to the Trustee pursuant to Section 2.06
or Section 2.08. Subject to the provisions of Section 2.06 and, if applicable, Section 2.08, the Trustee or the Security
Registrar shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the person or
persons specified in such Security in global form or in the applicable Company Order. If a Company Order pursuant to Section 2.06
or Section 2.08 has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery
or redelivery of a Security in global form shall be in writing but need not be represented by a Company Order and need not be accompanied
by an Opinion of Counsel.
The provisions of the last sentence of Section 2.06
shall apply to any Security represented by a Security in global form if such Security was never issued and sold by the Company and the
Company delivers to the Trustee or the Security Registrar the Security in global form together with written instructions (which need not
be represented by a Company Order and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal
amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 2.06.
Notwithstanding the provisions of Section 2.05,
unless otherwise specified as contemplated by Section 2.03(b), payment of principal of and any premium and interest on any Security
in permanent global form shall be made to the persons or persons specified therein.
SECTION
2.05 Denominations; Record Date; Payment of Interest.
(a)
Unless otherwise provided as contemplated by Section 2.03(b) with respect to any series of Securities, any Registered
Securities of a series shall be issuable without coupons in denominations of $1,000 and any Bearer Securities of a series shall be issuable,
with interest coupons attached, in the denomination of $5,000.
(b)
The term “record date” as used with respect to an interest payment date for any series of a Registered Security shall
mean such day or days as shall be specified as contemplated by Section 2.03(b); provided, however, that in the
absence of any such provisions with respect to any series, such term shall mean (1) the last day of the calendar month next preceding
such interest payment date if such interest payment date is the 15th day of a calendar month; or (2) the 15th
day of a calendar month next preceding such interest payment date if such interest payment date is the first day of the calendar month.
Unless otherwise provided as contemplated by Section 2.03(b) with
respect to any series of Securities, the person in whose name any Registered Security is registered at the close of business on the record
date with respect to an interest payment date shall be entitled to receive the interest payable on such interest payment date notwithstanding
the cancellation of such Security upon any registration of transfer or exchange thereof subsequent to such record date and prior to such
interest payment date; provided, however, that if and to the extent the Company shall default in the payment of the interest
due on such interest payment date, such defaulted interest shall be paid to the persons in whose names the Securities are registered on
a subsequent record date established by notice given to the extent and in the manner set forth in Section 15.04 by or on behalf of
the Company to the holders of Securities of the series in default not less than 15 days preceding such subsequent record date, such
record date to be not less than five days preceding the date of payment of such defaulted interest, or in any other lawful manner
acceptable to the Trustee.
(c)
Unless otherwise specified by Board Resolution or Company Order for a particular series of Securities, the principal of, redemption
premium, if any, on and interest, if any, on the Securities of any series shall be payable at the office or agency of the Company maintained
pursuant to Section 4.02 in a Place of Payment for such series, in the coin or currency of the United States of America that at the
time is legal tender for public and private debt; provided, however, that, at the option of the Company, payment of interest
with respect to a Registered Security may be paid by check mailed to the holders of the Registered Securities entitled thereto at their
last addresses as they appear on the Security Register or wired if held in book-entry form at the U.S. Depositary.
SECTION
2.06 Execution, Authentication, Delivery and Dating of Securities.
The Securities shall be signed on behalf of the
Company by its Chief Executive Officer, its President or one of its Vice Presidents under its corporate seal and attested by its Secretary
or one of its Assistant Secretaries. Such signatures may be the manual or facsimile signatures of such then current officers.
The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. Coupons shall bear the facsimile
signature of the Secretary or one of the Assistant Secretaries of the Company or such other officer of the Company as may be specified
pursuant to Section 2.03(b). Any Security or coupon may be signed on behalf of the Company by such persons as, at the actual date
of the execution of such Security, shall be the proper officers of the Company, although at the date of the execution of this Indenture
any such person was not such officer. Securities and coupons bearing the manual or facsimile signatures of individuals who were, at the
actual date of the execution of such Security or coupon, the proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities, or the delivery
of such coupons, as the case may be, or did not hold such offices at the date of such Securities.
Upon the execution and delivery of this Indenture,
the Company shall deliver to the Trustee an Officers’ Certificate as to the incumbency and specimen signatures of officers authorized
to execute and deliver the Securities and coupons and give instructions under this Section and, as long as Securities are Outstanding
under this Indenture, shall deliver a similar Officers’ Certificate each year on the anniversary of the date of the first such Officers’
Certificate. The Trustee may conclusively rely on the documents delivered pursuant to this Section (unless revoked by superseding
comparable documents) and Section 2.03 hereof as to the authorization of the Board of Directors of any Securities delivered hereunder,
and the form and terms thereof, and as to the authority of the instructing officers referred to in this Section so to act.
The Trustee shall at any time, and from time to
time, authenticate Securities for original issue in an unlimited aggregate principal amount upon receipt by the Trustee of a Company Order;
provided, however, that with respect to Securities of a series subject to a Periodic Offering, (a) such Company Order
may be delivered to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the
Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount
not exceeding the aggregate principal amount, if any, established for such series, pursuant to a Company Order or pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by a Company Order, (c) the maturity date or dates, original issue
date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by Company Order or pursuant
to such procedures, and (d) if provided for in such procedures, such Company Order may authorize authentication and delivery pursuant
to oral or electronic instructions from the Company or its duly authorized agent or agents, which oral instructions shall be promptly
confirmed in writing; and provided further, however, that definitive Euro Securities may only be delivered at an office or agency outside
the United States and its possessions in exchange for a portion of a Euro Security in temporary global form of equal aggregate principal
amount and series and only if (x) prior to such delivery, the owner of such Euro Security or a financial institution or clearing
organization through which the owner holds such Euro Security, directly or indirectly, shall have furnished a certificate in the form
set forth in Exhibit A.1 to this Indenture, dated no earlier than 15 days prior to the date on which Euroclear or Clearstream,
Luxembourg, as the case may be, furnishes to the Common Depositary, in accordance with the procedures established in Section 2.08,
a certificate in the form set forth in Exhibit A.2 to this Indenture that relates to all or such portion of such temporary global
Security, and (y) the person to whom such certificate is provided does not know or have reason to know that the information contained
in such certificate is false. If any Euro Security initially represented by a portion of a temporary global Security is exchanged for
a portion of a permanent global Security in equal aggregate principal amount and series, then, for purposes of this Section and Section 2.08,
the notation of a beneficial owner’s interest therein upon exchange shall be deemed to be delivery of definitive Euro Securities
representing such beneficial owner’s interest. Except as permitted by Section 2.09, the Trustee shall not authenticate and
deliver any Bearer Security unless all appurtenant coupons for interest then matured have been detached and cancelled.
Prior to the issuance of a Security of any new
series and any related coupons, and the authentication thereof by the Trustee, the Trustee shall have received and (subject to Section 7.02)
shall be fully protected in relying on:
(i)
The Board Resolution or Officers’ Certificate or indenture supplemental hereto establishing the terms and the form of the
Securities of that series pursuant to Section 2.01 and Section 2.03;
(ii)
An Officers’ Certificate stating that all conditions precedent provided for in this Indenture relating to the authentication
and delivery of Securities in such form have been complied with;
(iii)
An Opinion of Counsel stating that the form and terms of such Securities and coupons, if any, have been established in conformity
with the provisions of this Indenture; provided, however, that with respect to Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to receive such Opinion of Counsel only once at or prior to the time of the first authentication
of Securities of such series.
With respect to Securities of a series offered
in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any of such Securities, the form and terms thereof
and of any coupons and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and other documents
delivered pursuant to this Section in connection with the first authentication of Securities of such series unless and until such
Opinion of Counsel or other documents have been superseded or revoked. In connection with the authentication and delivery of Securities
of a series subject to a Periodic Offering, the Trustee shall be entitled to assume that the Company’s instructions to authenticate
and deliver such Securities do not violate any rules, regulations or orders of any governmental agency or commission having jurisdiction
over the Company.
Each Registered Security shall be dated the date
of its authentication except as otherwise provided by Board Resolution or Officers’ Certificate or indenture supplemental hereto;
and each Bearer Security shall be dated as of the date of original issuance of the first Security of such series to be issued unless otherwise
specified pursuant to Section 2.03(b) hereof.
The aggregate principal amount of Securities of
any series outstanding at any time may not exceed any limit upon the maximum principal amount for such series set forth in or pursuant
to the Board Resolution or Officers’ Certificate or indenture supplemental hereto delivered pursuant to Section 2.03, except
as provided in Section 2.08.
No Security or coupon shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security, or the Security to which
such coupon appertains, a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 2.09
together with a written statement stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of
this Indenture.
SECTION
2.07 Exchange and Registration of Transfer of Securities.
(a)
The Company shall keep, at an office or agency to be designated and maintained by the Company in accordance with Section 4.02
(as such, a “Security Registrar”), registry books (the “Security Register”) in which, subject to
such reasonable regulations as it may prescribe, the Company shall register Registered Securities and shall register the transfer of Registered
Securities of each such series as provided in this Article 2. Such Security Register shall be in written form or in any other form
capable of being converted into written form within a reasonable time. At all reasonable times such Security Register shall be open for
inspection by the Trustee. Upon due presentment for registration of transfer of any Registered Security of a particular series at such
office or agency maintained pursuant to Section 4.02 for such purpose in a Place of Payment, the Company shall execute and register
and the Trustee shall authenticate and make available for delivery in the name of the transferee or transferees a new Registered Security
or Registered Securities of such series of any authorized denominations and for an equal aggregate principal amount and tenor.
(b)
At the option of the holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series
of any authorized denominations and of an equal aggregate principal amount and tenor. Registered Securities to be exchanged shall be surrendered
at any such office or agency maintained pursuant to Section 4.02 for such purpose in a Place of Payment, and the Company shall execute
and register and the Trustee shall authenticate and make available for delivery in exchange therefor the Security or Securities that the
securityholder making the exchange shall be entitled to receive. Registered Securities, including Registered Securities received in exchange
for Bearer Securities, may not be exchanged for Bearer Securities, unless the Company otherwise expressly provides for the issuance, upon
such terms and conditions as may be provided with respect to such series, by the Company of Registered Securities of a series that may
be exchanged, at the option of the securityholder upon such conditions and limitations as may be specified by the Company, for Bearer
Securities of such series.
At the option of the holder, Bearer Securities
of any series may be exchanged for Registered Securities of the same series of any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons (except
as provided below) and with all matured coupons in default appertaining thereto. If the holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal to the face amount of such missing coupon or coupons, or
the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there is furnished to them such security
or indemnity as they may require to save each of them and any paying agent harmless. If thereafter the holder of such Securities shall
surrender to any paying agent any such missing coupon in respect of which such a payment shall have been made, such holder shall be entitled
to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 4.02, interest
represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the
United States and its possessions. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office
or agency in exchange for a Registered Security of the same series and like tenor after the close of business at such office or agency
on (i) any record date and before the opening of business at such office or agency on the relevant interest payment date, or (ii) any
special record date and before the opening of business at such office or agency on the related proposed date for payment of defaulted
interest as set forth in Section 2.05, such Bearer Security shall be surrendered without the coupon relating to such interest payment
date or proposed date for payment, as the case may be, and interest or defaulted interest, as the case may be, will not be payable on
such interest payment date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the holder of such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for
exchange, the Company shall execute and register, and the Trustee shall authenticate and make available for delivery, the Securities which
the holder making the exchange is entitled to receive.
(c)
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration
of transfer or exchange.
All Registered Securities presented for registration
of transfer or for exchange, redemption or payment, as the case may be, shall (if so required by the Company or the Trustee) be duly endorsed
by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Trustee or the Security
Registrar duly executed by, the holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any exchange
or registration of transfer of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith, other than exchanges pursuant to the terms of this Indenture not involving any transfer.
The Company shall not be required (1) to issue,
to exchange or register the transfer of Securities of any series to be redeemed for a period of 15 days next preceding any selection
of such Securities to be redeemed, or (2) to exchange or register the transfer of any Registered Security so selected, called or
being called for redemption, except in the case of any such series to be redeemed in part the portion thereof not to be so redeemed, or
(3) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered
Security of that series and of like tenor, provided that such Registered Security shall be simultaneously surrendered for redemption.
(d)
Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 2.03(b), any permanent global Security
shall be exchangeable pursuant to this Section only as provided in this paragraph. If the beneficial owners of interests in a permanent
global Security are entitled to exchange such interests for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 2.03(b), then without unnecessary delay but in any event
not later than the earliest date on which such interests may be so exchanged, the Company shall deliver to the Trustee or the Security
Registrar definitive Securities of that series in aggregate principal amount equal to the principal amount of such permanent global Security
executed by the Company. On or after the earliest date on which such interests may be so exchanged, in accordance with instructions given
by the Company to the Trustee or the Security Registrar and the Common Depositary or the U.S. Depositary, as the case may be (which instructions
shall be in writing), such permanent global Security shall be surrendered from time to time by the Common Depositary or the U.S. Depositary,
as the case may be, or such other depositary or Common Depositary or U.S. Depositary, as the case may be, as shall be specified in the
Company Order with respect thereto to the Trustee, as the Company’s agent for such purpose, or to the Security Registrar, to be
exchanged, in whole or in part, for definitive Securities of the same series without charge and the Trustee shall authenticate and make
available for delivery in accordance with such instructions, in exchange for each portion of such permanent global Security, a like aggregate
principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such permanent
global Security to be exchanged which (unless the Securities of the series are not issuable both as Bearer Securities and as Registered
Securities, in which case the definitive Securities exchanged for the permanent global Security shall be issuable only in the form in
which the Securities are issuable, as specified as contemplated by Section 2.03(b)), shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the beneficial owner thereof; provided, however,
that no such exchanges may occur for a period of 15 days next preceding any selection of Securities of that series and of like tenor
for redemption; and provided, further, that no Bearer Security delivered in exchange for a portion of a permanent global security
shall be mailed or otherwise delivered to any location in the United States or its possessions. Promptly following any such exchange in
part, such permanent global Security should be returned by the Trustee or the Security Registrar to the Common Depositary or the U.S.
Depositary, as the case may be, or such other depositary or Common Depositary or U.S. Depositary referred to above in accordance with
the instructions of the Company referred to above. If a Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange occurs on (i) any record date and before the opening
of business at such office or agency on the relevant interest payment date, or (ii) any special record date and before the opening
of business at such office or agency on the related proposed date for payment of defaulted interest as provided in Section 2.05,
interest or defaulted interest, as the case may be, will not be payable on such interest payment date or proposed date for payment, as
the case may be, in respect of such Registered Security, but will be payable on such interest payment date or proposed date for payment,
as the case may be, only to the person to whom interest in respect of such portion of such permanent global Security is payable in accordance
with the provisions of this Indenture.
SECTION
2.08 Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute and the Trustee shall, upon Company Order, authenticate and make available for delivery, temporary
Securities of such series (typewritten, printed, lithographed or otherwise produced). Such temporary Securities, in any authorized denominations,
shall be substantially in the form of the definitive Securities in lieu of which they are issued, in registered form or, if authorized,
in bearer form with one or more or without coupons, in the form approved from time to time by or pursuant to a Board Resolution but with
such omissions, insertions, substitutions and other variations as may be appropriate for temporary Securities, all as may be determined
by the Company, but not inconsistent with the terms of this Indenture or any provision of applicable law. In the case of any series issuable
as Bearer Securities, such temporary Securities shall be delivered only in compliance with the conditions set forth in Section 2.06
and may be in global form.
Except in the case of temporary Securities in global
form (which shall be exchanged as hereinafter provided), if temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company maintained pursuant to Section 4.02 in a Place of Payment for such series for
the purpose of exchanges of Securities of such series, without charge to the holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured coupons appertaining thereto), the Company shall execute and the Trustee
shall authenticate and make available for delivery in exchange therefor a like aggregate principal amount of definitive Securities of
the same series and of like tenor of authorized denominations; provided, however, that, except as otherwise expressly provided
by the Company as contemplated in Section 2.07(b), no definitive Bearer Security shall be delivered in exchange for a temporary Registered
Security; and provided further, however, that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 2.06.
All Euro Securities shall be issued initially in
the form of a temporary global Security and any such temporary global Security shall, unless otherwise provided therein, be delivered
to the London office of a depositary or common depositary (the “Common Depositary”), for the benefits of Euroclear
and Clearstream, Luxembourg, for credit to the respective accounts for the beneficial owners of such Securities (or to such other accounts
as they may direct).
Without unnecessary delay but in any event not
later than the date specified in, or determined pursuant to the terms of, any such temporary global Security of a series (the “Exchange
Date”), the Company shall deliver to the Trustee definitive Securities of that series, in aggregate principal amount equal to
the principal amount of such temporary global Security, executed by the Company. On or after the Exchange Date such temporary global Security
shall be presented and surrendered by the Common Depositary to the Trustee, as the Company’s agent for such purpose, or to the Security
Registrar, to be exchanged, in whole or from time to time in part, for definitive Securities of such series without charge, and the Trustee
shall authenticate and make available for delivery, in exchange for each portion of such temporary global Security, a like aggregate principal
amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such temporary global
Security to be exchanged; provided, however, that, unless otherwise specified in such temporary global Security, upon such
presentation by the Common Depositary, such temporary global Security must be accompanied by a certificate dated the Exchange Date or
a subsequent date and signed by Euroclear as to the portion of such temporary global Security held for its account then to be exchanged
and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream, Luxembourg as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form set forth in Exhibit A.2 to this Indenture. The definitive
Securities to be delivered in exchange for any such temporary global Security shall be in bearer form, registered form, permanent global
bearer form or permanent global registered form, or any combination thereof, as specified as contemplated by Section 2.03(b), and,
if any combination thereof is so specified, as requested by the beneficial owner thereof; provided, however, that definitive
Securities shall be delivered in exchange for a portion of a temporary global Security only in compliance with the requirements of Section 2.06.
Unless otherwise specified in such temporary global
Security, the interest of a beneficial owner of Securities of a series in a temporary global Security shall be exchanged for definitive
Securities of the same series and of like tenor upon the receipt by Euroclear or Clearstream, Luxembourg, as the case may be, after the
Exchange Date of a certificate in the form set forth in Exhibit A.1 to this Indenture (whether or not such certificate is delivered
in connection with the payment of interest, as hereinafter provided) signed by the owner of the Security or a financial institution or
clearing organization through which the owner directly or indirectly holds such Security, and dated no earlier than 15 days prior
to the date on which Euroclear or Clearstream, Luxembourg, as the case may be, furnishes to the Common Depositary in accordance with the
preceding paragraph a certificate in the form set forth in Exhibit A.2 to this Indenture that relates to the interest to be exchanged
for definitive Securities. Copies of the certificate in the form set forth in Exhibit A.1 to this Indenture shall be available from
the offices of Euroclear and Clearstream, Luxembourg, the Trustee, any authenticating agent appointed for such series of Securities and
each paying agent. Unless otherwise specified in such temporary global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a person receiving definitive Securities must bear the cost of insurance,
postage, transportation and the like in the event that such person does not take delivery of such definitive Securities in person at the
offices of Euroclear or Clearstream, Luxembourg. Definitive Securities to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States and its possessions.
Until exchanged in full as hereinabove provided,
the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities
of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by
Section 2.03(b), interest payable on a temporary global Security on any interest payment date for Securities of such series occurring
prior to the exchange of such temporary global Security shall be payable to Euroclear and Clearstream, Luxembourg on such interest payment
date upon delivery by Euroclear and Clearstream, Luxembourg to the Trustee or the applicable paying agent of a certificate or certificates
in the form set forth in Exhibit A.3 to this Indenture, for credit without further interest on or after such interest payment date
to the respective accounts of the persons for whom Euroclear or Clearstream, Luxembourg, as the case may be, holds such temporary global
Security on such interest payment date and who have each delivered to Euroclear or Clearstream, Luxembourg, as the case may be, a certificate
in the form set forth in Exhibit A.1 to this Indenture. If such interest payment date occurs on or after the Exchange Date, Euroclear
or Clearstream, Luxembourg, as the case may be, following the receipt of such certificate shall exchange, in accordance with the procedures
hereinabove provided, the portion of the temporary global Security that relates to such certificate for definitive Securities (which,
in the absence of instructions to the contrary, shall be an interest in a permanent global Security). Any interest so received by Euroclear
and Clearstream, Luxembourg and not paid as herein provided shall be returned to the Trustee or the applicable paying agent immediately
prior to the expiration of two years after such interest payment date in order to be repaid to the Company in accordance with Section 12.04.
The terms and form of the certificates to be delivered
hereunder, and procedures established with respect thereto, are intended to ensure that (i) interest payable by the Company on Securities
of a series issuable in bearer form is deductible by the Company under Section 163(f) of the Internal Revenue Code of 1986,
as may be amended from time to time, or any successor provision and (ii) the Company meets the requirements, if any, established
by Euroclear or Clearstream, Luxembourg from time to time, and any such certificates or the procedures with respect thereto may be amended
or modified by the Company upon delivery of a Company Order to the Trustee accompanied by an Opinion of Counsel to the effect that the
proposed modification or amendment will effect continued compliance by the Company with provisions of such Code or Euroclear or Clearstream,
Luxembourg, as the case may be.
Every temporary Security 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.
SECTION
2.09 Mutilated, Destroyed, Lost or Stolen Securities and Coupons.
If any mutilated Security or a Security with a
mutilated coupon appertaining thereto is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and
make available for delivery in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and
the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security or coupon and (ii) such security
or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Company shall, subject to the
following paragraph, execute and the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or
stolen Security or in exchange for the Security to which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or
stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security or coupon; provided, however, that principal of (and premium, if any, on) and any interest on
Bearer Securities shall, except as otherwise provided in Section 4.02, be payable only at an office or agency located outside the
United States and its possessions.
Upon the issuance of any new Security under this
Section, the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with any coupons
appertaining thereto, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security or in exchange for a Security
to which a destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and any coupons appertaining thereto, or the destroyed, lost or stolen coupon shall
be at any time enforceable by anyone, and any such new Security and coupons, if any, shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons.
SECTION
2.10 Cancellation.
All Securities surrendered for payment, redemption,
exchange or registration of transfer or for credit against any sinking fund payment, as the case may be, and any coupons surrendered for
payment, shall, if surrendered to the Company or any agent of the Company or of the Trustee, be delivered to the Trustee. All Registered
Securities and matured coupons so delivered shall be promptly cancelled by the Trustee. All Bearer Securities and unmatured coupons so
delivered shall be held by the Trustee, and upon instruction by a Company Order, shall be cancelled or held for reissuance. All Bearer
Securities and unmatured coupons held by the Trustee pending such cancellation or reissuance shall be deemed to be delivered for cancellation
for all purposes of this Indenture and the Securities. The Company may deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this Section except as expressly provided by this Indenture.
Any cancelled Securities and coupons held by the Trustee shall be delivered to the Company or disposed of as directed by the Company;
provided, however, that the Trustee may, but shall not be required to, destroy such Securities.
SECTION
2.11 Book-Entry Only System.
If specified by the Company pursuant to Section 2.03(b) with
respect to Securities represented by a Security in global form, a series of Securities may be issued initially in book-entry only form
and, if issued in such form, shall be represented by one or more Securities in global form registered in the name of the U.S. or Common
Depositary or other depositary designated with respect thereto. So long as such system of registration is in effect, (a) Securities
of such series so issued in book-entry only form will not be issuable in the form of or exchangeable for Securities in certificated or
definitive registered form, (b) the records of the U.S. or Common Depositary or such other depositary will be determinative for all
purposes and (c) neither the Company, the Trustee nor any paying agent, Security Registrar or transfer agent for such Securities
will have any responsibility or liability for (i) any aspect of the records relating to or payments made on account of owners of
beneficial interests in the Securities of such series, (ii) maintaining, supervising or reviewing any records relating to such beneficial
interests, (iii) receipt of notices, voting and requesting or directing the Trustee to take, or not to take, or consenting to, certain
actions hereunder, or (iv) the records and procedures of the U.S. or Common Depositary, or such other depositary, as the case may
be.
ARTICLE 3
REDEMPTION OF SECURITIES
SECTION
3.01 Redemption of Securities; Applicability of Section.
Redemption of Securities of any series as permitted
or required by the terms thereof shall be made in accordance with the terms of such Securities as specified pursuant to Section 2.03(b) hereof
and this Article; provided, however, that if any provision of any series of Securities shall conflict with any provision
of this Section, the provision of such series of Securities shall govern.
SECTION
3.02 Notice of Redemption; Selection of Securities.
In case the Company shall desire to exercise the
right to redeem all or, as the case may be, any part of a series of Securities pursuant to Section 3.01, it shall fix a date for
redemption. Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company, or, at the
Company’s request, by the Trustee in the name and at the expense of the Company. The Company or the Trustee, as the case may be,
shall give notice of such redemption, in the manner and to the extent set forth in Section 15.04, on that date prior to the date
fixed for a redemption to the holders of such Securities so to be redeemed, as a whole or in part, (a) as set forth in Board Resolutions,
as described in Section 2.03(b), or (b) as determined by the Chief Executive Officer, the Chief Financial Officer, any Senior
or other Vice President or the Treasurer of the Company (each, an “Authorized Officer”) and evidenced by the preparation
of an offering document or an Officer’s Certificate specifying the period of notice of such redemption. If the Board Resolutions
or an Authorized Officer do not specify a period of notice of such redemption, the Company or the Trustee, as the case may be, shall give
notice of such redemption, in the manner and to the extent set forth in Section 15.04, at least 10 Business days and not
more than 60 calendar days prior to the date fixed for a redemption to the holders of such Securities so to be redeemed as a
whole or in part. Notice given in such manner shall be conclusively presumed to have been duly given, whether or not the holder receives
such notice. In any case, failure to give such notice or any defect in the notice to the holder of any such Security designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the redemption of any other such Security. If the Company requests
the Trustee to give any notice of redemption, it shall make such request at least ten days prior to the designated date for delivering
such notice, unless a shorter period is satisfactory to the Trustee.
Each such notice of redemption shall specify the
date fixed for redemption, the redemption price at which such Securities are to be redeemed, the CUSIP numbers of such Securities, the
Place of Payment where such Securities, together, in the case of Bearer Securities, with all coupons appertaining thereto, if any, maturing
after the date of redemption, are to be surrendered for payment of the redemption prices, that payment will be made upon presentation
and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as specified in the notice, and
that on and after the date interest thereon or on the portions thereof to be redeemed will cease to accrue. If less than all of a series
is to be redeemed, the notice of redemption shall specify the numbers of the Securities to be redeemed. In case any Security is to be
redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state
that, upon surrender of such Security, a new Security or Securities of the same series in principal amount equal to the unredeemed portion
thereof will be issued.
On or before the redemption date specified in the
notice of redemption given as provided in this Section, the Company will deposit in trust with the Trustee or with one or more paying
agents an amount of money sufficient to redeem on the redemption date all the Securities or portions of Securities so called for redemption
at the appropriate redemption price, together with accrued interest, if any, to the date fixed for redemption. If less than all of a series
of Securities is to be redeemed, the Company will give the Trustee adequate written notice at least 45 days in advance (unless a
shorter notice shall be satisfactory to the Trustee) as to the aggregate principal amount of Securities to be redeemed.
If less than all the Securities of a series are
to be redeemed, the Trustee shall select, pro rata or by lot or in such other manner is it shall deem appropriate and fair, not more than
60 days prior to the date of redemption, the numbers of such Securities Outstanding not previously called for redemption, to be redeemed
in whole or in part. The portion of principal of Securities so selected for partial redemption shall be equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof. The Trustee shall promptly notify the Company of the Securities
to be redeemed. If, however, less than all the Securities of a series having differing issue dates, interest rates and stated maturities
are to be redeemed, the Company in its sole discretion shall select the particular Securities of such series to be redeemed and shall
notify the Trustee in writing at least 45 days prior to the relevant redemption date.
SECTION
3.03 Payment of Securities Called for Redemption.
If notice of redemption has been given as above
provided, the Securities or portions of Securities with respect to which such notice has been given shall become due and payable on the
date and at the place stated in such notice at the applicable redemption price, together with any interest accrued to the date fixed for
redemption, and on and after that date (unless the Company shall default in the payment of such Securities at the redemption price, together
with interest accrued to that date) interest on such Securities or portions of Securities so called for redemption shall cease to accrue
and the coupons, if any, for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below,
shall be void. On presentation and surrender of such Securities subject to redemption at the Place of Payment and in the manner specified
in such notice, together with all coupons, if any, appertaining thereto and maturing after the date specified in such notice for redemption,
such Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption; provided, however, that installments of interest on Bearer
Securities whose stated maturity date is on or prior to the date of redemption shall be payable only at an office or agency located outside
the United States and its possessions (except as otherwise provided in Section 4.02) and, unless otherwise specified as contemplated
by Section 2.03(b), only upon presentation and surrender of coupons for such interest; and provided, further, that unless otherwise
specified as contemplated by Section 2.03(b), installments of interest on Registered Securities whose stated maturity date is on
or prior to the date of redemption shall be payable to the holders of such Registered Securities, or one or more predecessor Securities,
registered as such at the close of business on the relevant record dates according to their terms and the provisions of Section 2.05.
At the option of the Company, payment with respect
to Registered Securities may be made by check to the holders of such Securities or other persons entitled thereto against presentation
and surrender of such Securities.
If any Bearer Security surrendered for redemption
shall not be accompanied by all appurtenant coupons maturing after the date of redemption, such Security may be paid after deducting from
the redemption price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they may require to save each
of them and any paying agent harmless. If thereafter the holder of such Security shall surrender to the Trustee or any paying agent any
such missing coupon in respect of which a deduction shall have been made from the redemption price, such holder shall be entitled to receive
the amount so deducted; provided, however, that interest represented by coupons shall be payable only at an office or agency
located outside the United States and its possessions (except as otherwise provided in Section 4.02) and, unless otherwise specified
as contemplated by Section 2.03(b), only upon presentation and surrender of those coupons.
Any Security (including any coupons appertaining
thereto) that is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed
by, the holder thereof or such holder’s attorney duly authorized in writing), and upon such presentation, the Company shall execute
and the Trustee shall authenticate and make available for delivery to the holder thereof, at the expense of the Company, a new Security
or Securities of the same series, of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the principal
of the Security so presented. If a temporary global Security or permanent global Security is so surrendered, such new Security so issued
shall be a new temporary global Security or permanent global Security, respectively.
SECTION
3.04 Redemption Suspended During Event of Default.
The Trustee shall not redeem any Securities (unless
all Securities then outstanding are to be redeemed) or commence the giving of any notice of redemption of Securities during the continuance
of any Event of Default of which a Responsible Officer of the Trustee has actual knowledge or notice, except that where the giving of
notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem such Securities, provided funds are
deposited with it for such purpose. Except as aforesaid, any moneys theretofore or thereafter received by the Trustee shall, during the
continuance of such Event of Default, be held in trust for the benefit of the securityholders and applied in the manner set forth in Section 6.06;
provided, however, that in case such Event of Default shall have been waived as provided herein or otherwise cured, such
moneys shall thereafter be held and applied in accordance with the provisions of this Article.
ARTICLE 4
PARTICULAR COVENANTS OF THE COMPANY
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, on) and any interest on each of the Securities of a series at the place, at the respective
times and in the manner provided in the terms of the Securities, any coupons appertaining thereto and this Indenture. Unless otherwise
specified as contemplated by Section 2.03(b) with respect to any series of Securities, any interest due on and any Additional
Amounts payable in respect of Bearer Securities on or before maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they severally mature.
SECTION
4.02 Offices for Notices and Payments, etc.
If Securities of a series are issuable only as
Registered Securities, the Company will maintain in each Place of Payment for such series an office or agency where Securities of that
series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the Company will maintain (A) in the City of Williamsport, Commonwealth
of Pennsylvania (or in such other place or places in the United States as the Company may designate from time to time by Company Order
delivered to the Trustee), an office or agency where any Registered Securities of that series may be presented or surrendered for payment,
where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange, where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture
may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for payment in the circumstances
described below (and not otherwise), (B) subject to any laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States and its possessions, an office or agency where Securities of that series and related coupons
may be presented and surrendered for payment; provided, however, that if the Securities of that series are listed on The
International Stock Exchange of the United Kingdom and the Republic of Ireland, Limited, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and its possessions and such stock exchange shall so require, the Company will maintain a paying
agent for the Securities of that series in London, Luxembourg or any other required city located outside the United States and its possessions,
as the case may be, so long as the Securities of that series are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located outside the United States and its possessions, an office or
agency where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be served.
The Company will give to the Trustee notice of
the location of each such office or agency and of any change in the location thereof. In case the Company shall fail to maintain any such
office or agency as required, or shall fail to give such notice of the location or of any change in the location thereof, presentations
and surrenders of Securities of that series may be made and notices and demands may be served at the principal corporate trust office
of the Trustee, except that Bearer Securities of that series and the related coupons may be presented and surrendered for payment at any
paying agent for such series located outside the United States and its possessions or, if none have been so appointed, then at the London
office of the Trustee, and the Company hereby appoints the same as its agent to receive such respective presentations, surrenders, notices
and demands.
No payment of principal, premium or interest on
Bearer Securities shall be made at any office or agency of the Company in the United States or its possessions or by check mailed to any
address in the United States or its possessions or by transfer to any account maintained with a financial institution located in the United
States or its possessions; provided, however, that, if the Securities of a series are denominated and payable in Dollars,
payment of principal of (and premium, if any) and any interest on any Bearer Security shall be made at the office of the Company’s
paying agent in the City of Williamsport, Commonwealth of Pennsylvania (or in such other place or places in the United States as the Company
may designate from time to time by Company Order delivered to the Trustee), if (but only if) payment in Dollars of the full amount of
such principal, premium, interest or Additional Amounts, as the case may be, at all offices or agencies outside the United States and
its possessions maintained for the purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate
one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt written notice to the Trustee and the holders of any such designation
or rescission and of any change in the location of any such other office or agency.
The Company hereby initially designates the principal
corporate trust office of [____________________] as the office of the Company in the City of Williamsport, Commonwealth of Pennsylvania
where Registered Securities may be presented for payment, for registration of transfer and for exchange as in this Indenture provided
and where notices and demands to or upon the Company in respect of the Securities or of this Indenture may be served.
SECTION
4.03 Provisions as to Paying Agent.
(a)
Whenever the Company shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will
cause 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 sums held by it as such agent for the payment of the principal of (and premium, if any, on) or any interest on
the Securities of such series (whether such sums have been paid to it by the Company or by any other obligor on the Securities of such
series) in trust for the benefit of the persons entitled thereto until such sums shall be paid to such persons or otherwise disposed of
as herein provided and will notify the Trustee of the receipt of sums to be so held;
(2)
that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities of such series) to
make any payment of the principal of (or premium, if any, on) or any interest on the Securities of such series when the same shall be
due and payable; and
(3)
that at any time when any such failure has occurred and is continuing, it will, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying agent.
(b)
If the Company shall act as its own paying agent, it will, on or before each due date of the principal of (and premium, if any)
or any interest on the Securities of any series, set aside, segregate and hold in trust for the benefit of the persons entitled thereto
a sum sufficient to pay such principal (and premium, if any) or any interest so becoming due until such sums shall be paid to such persons
or otherwise disposed of as herein provided. The Company will promptly notify the Trustee of any failure to take such action.
(c)
Whenever the Company shall have one or more paying agents with respect to a series of Securities, it will, on or prior to each
due date of the principal of (and premium, if any, on) or any interest on, any Securities, deposit with a paying agent a sum sufficient
to pay the principal (and premium, if any) or any 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 its action or failure so to act.
(d)
Anything in this Section to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause
to be paid to the Trustee all sums held in trust for such series by it or any paying agent hereunder as required by this Section, such
sums to be held by the Trustee upon the trusts herein contained, 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.
(e)
Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 12.03 and Section 12.04.
SECTION
4.04 Statement as to Compliance.
The Company will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company, commencing with the fiscal year ending in the year during which the first
series of Securities is issued hereunder (but in no event more than one year from the issuance of the first series hereunder), a written
statement signed by the Chief Executive Officer, President or other principal executive officer and by the Treasurer or other principal
financial officer or principal accounting officer of the Company, stating, as to each signer thereof, that:
(a)
a review of the activities of the Company during such year and of performance under this Indenture has been made under his supervision;
and
(b)
to the best of his knowledge, based on such review, the Company has fulfilled all its obligations under this Indenture throughout
such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to him and the
nature and status thereof.
SECTION
4.05 Corporate Existence.
Subject to the provisions of Article 11, the
Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights
(charter and statutory) and franchises and the corporate existence and rights (charter and statutory) and franchises of its subsidiaries;
provided, however, that the Company shall not be required to, or to cause any subsidiary to, preserve any right or franchise
or to keep in full force and effect the corporate existence of any subsidiary if the Company shall determine that the keeping in existence
or preservation thereof is no longer desirable in or consistent with the conduct of the business of the Company.
SECTION
4.06 Reserved.
SECTION
4.07 Waiver of Covenants.
The Company may omit in any particular instance
to comply with any covenant or condition set forth herein if before or after the time for such compliance the holders of a majority in
principal amount of the Securities of all series affected thereby then Outstanding shall either waive such compliance in such instance
or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition
except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties
of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
SECTION
4.08 Notice of Default.
The Company will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers’ Certificate signed by
its Chief Executive Officer, President, Chief Financial Officer or Treasurer stating whether or not to the best knowledge of the signor
thereof, the Company is in default in the performance or observance of any of the terms, provisions and conditions of this Indenture,
and if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
ARTICLE 5
SECURITYHOLDER LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION
5.01 Securityholder Lists.
The Company covenants and agrees that it will furnish
or cause to be furnished to the Trustee (1) semiannually, not later than January 15 and July 15 in each year, when any
Securities of a series are Outstanding, a list, in such form as the Trustee may reasonably require, of all information in the possession
or control of the Company as to the names and addresses of the holders of such Registered Securities as of such date, and (2) at
such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request, a list,
in such form as the Trustee may reasonably require, of all information in the possession or control of the Company as to the names and
addresses of the holders of Registered Securities of a particular series specified by the Trustee as of a date not more than 15 days
prior to the time such information is furnished; provided, however, that if and so long as the Trustee shall be the Security
Registrar with respect to such series, such list shall not be required to be furnished.
SECTION
5.02 Preservation and Disclosure of Lists.
(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 each series of Securities contained in the most recent list furnished to it as provided in Section 5.01 or received
by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 5.01
upon receipt of a new list so furnished.
(b)
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. The Company, the Trustee, the Security Registrar and anyone else
shall have the protection of Section 312(c) of the Trust Indenture Act with respect to the sending of any material pursuant
to a request made pursuant to Section 312(b) of the Trust Indenture Act.
SECTION
5.03 Reports by the Company.
The Company covenants so long as Securities are
Outstanding:
(a)
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 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;
(b)
to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time 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; and
(c)
to transmit by mail to all the holders of Registered Securities of each series, as the names and addresses of such holders appear
on the registry books, 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 with respect to each such series 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)
On or about [____________, __________], so long as any Securities are outstanding hereunder and if there has been any change in
the following, the Trustee shall transmit by mail, first class postage prepared, to the securityholders, as their names appear upon the
Security Register, a brief report dated as of the preceding [____________, __________], if and to the extent required under Section 313(a) of
the Trust Indenture Act, detailing certain events that occurred within the previous 12 months.
(b)
The Trustee shall comply with Sections 313(b) and 313(c) of the Trust Indenture Act.
(c)
A copy of each such report shall, at the time of such transmission to securityholders, be filed by the Trustee with the Company,
with each stock exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees to notify
the Trustee when any Securities become listed on any stock exchange.
ARTICLE 6
REMEDIES
SECTION
6.01 Events of Default; Acceleration of Maturity.
In case one or more of the following Events of
Default with respect to a particular series shall have occurred and be continuing:
(a)
default in (a) the payment of the principal of (or premium, if any, on) any of the Securities of such series as and when the
same shall become due and payable either at maturity, upon redemption, by declaration or otherwise or (b) any payment required by
any sinking or analogous fund established with respect to that series; or
(b)
default in the payment of any installment of interest upon any of the Securities of such series as and when the same shall become
due and payable, and continuance of such default for a period of 90 days; or
(c)
failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company
contained in the Securities or in this Indenture for a period of 90 days after the date on which written notice of such failure,
requiring the Company to remedy the same, shall have been given to the Company by the Trustee, or to the Company and the Trustee by the
holders of at least 25% in aggregate principal amount of the Securities of that series at the time Outstanding; or
(d)
a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or ordering
the winding-up or liquidation of its affairs and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
or
(e)
the Company shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of the Company or
for any substantial part of its property, or shall make any general assignment for the benefit of creditors; or
(f)
any other Event of Default provided with respect to Securities of that series,
then, if an Event of Default described in clause (a), (b), (c),
or (f) shall have occurred and be continuing, and in each and every such case, unless the principal amount of all the Securities
of such series shall have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal
amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by
securityholders) may declare the principal amount of all the Securities (or, with respect to Original Issue Discount Securities, such
lesser amount as may be specified in the terms of such 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, anything in this Indenture or in the Securities of such series
contained to the contrary notwithstanding; or, if an Event of Default described in clause (d) or (e) shall have occurred
and be continuing, and in each and every such case, unless the principal of all the Securities of such series shall have already become
due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of all the Securities of that series
then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by securityholders), may declare the principal
of all the Securities (or, with respect to Original Issue Discount Securities, such lesser amount as may be specified in the terms of
such Securities) to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Securities contained to the contrary notwithstanding.
SECTION
6.02 Rescission and Annulment.
The provisions in Section 6.01 are subject
to the condition that if, at any time after the principal of the Securities of any one or more of all series, as the case may be, shall
have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments
of interest upon all the Securities of such series or of all the Securities, as the case may be, and the principal of (and premium, if
any, on) all Securities of such series or of all the Securities, as the case may be (or, with respect to Original Issue Discount Securities,
such lesser amount as may be specified in the terms of such Securities), which shall have become due otherwise than by acceleration (with
interest upon such principal and premium, if any) and, to the extent that payment of such interest is enforceable under applicable law,
on overdue installments of interest, at the same rate as the rate of interest specified in the Securities of such series or all Securities,
as the case may be (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for
interest on overdue principal thereof upon maturity, redemption or acceleration of such series, as the case may be), to the date of such
payment or deposit, and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its negligence or
bad faith, and any and all defaults under the Indenture, other than the non-payment of the principal of Securities that has become due
by acceleration, shall have been remedied; then and in every such case the holders of a majority in aggregate principal amount of the
Securities of such series (or of all the Securities, as the case may be) then Outstanding, by written notice to the Company and to the
Trustee, may waive all defaults with respect to that series or with respect to all Securities, as the case may be in such case, treated
as a single class and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend
to or shall affect any subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce
any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission and annulment
or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Trustee and
the securityholders, as the case may be, shall be restored respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the securityholders, as the case may be, shall continue as though no such proceedings
had been taken.
SECTION
6.03 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(a)
default is made in the payment of any installment of interest on any Security when such interest becomes due and payable and such
default continues for a period of 90 days, or
(b)
default is made in the payment of the principal or premium, if any, of any Security at the maturity thereof, including any maturity
occurring by reason of a call for redemption or otherwise,
the Company will, upon demand of the Trustee, pay to it, for the benefit
of the holders of such Securities and any coupons appertaining thereto, the whole amount that shall have become due and payable on such
Securities and coupons for principal or premium, if any, and interest, with interest upon the overdue principal and, to the extent that
payment of such interest shall be legally enforceable, upon overdue installments of interest, at the rate borne by such Securities; and,
in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection
of the sums so due and unpaid, and may prosecute such proceedings to judgment or final decree, and may enforce the same against the Company
or any other obligor upon the Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the securityholders by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement
of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION
6.04 Trustee May File Proofs of Claim.
In the case of the pendency of a receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall
be entitled and empowered, by intervention in such proceeding or otherwise:
(a)
to file and prove a claim for the whole amount of principal and premium, if any, and any interest owing and unpaid in respect of
the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and
of the holders of Securities and coupons allowed in such judicial proceeding; and
(b)
to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator or sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by each holder of Securities and coupons to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the holders of Securities and
coupons, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.06. To the extent that such payment of reasonable compensation,
expenses, disbursements, advances and other amounts out of the estate in any such proceedings shall be denied for any reason, payment
of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, moneys, securities and other
property which the holders of the Securities and coupons may be entitled to receive in such proceedings, whether in liquidation or under
any plan or reorganization or arrangements or otherwise.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of the holder of a Security or a coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or coupons or the rights of any holder thereof, or to authorize the Trustee
to vote in respect of the claim of any holder of a Security or a coupon in any such proceeding.
SECTION
6.05 Trustee May Enforce Claims Without Possession of Securities or Coupons.
All rights of action and claims under this Indenture
or the Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or coupons
or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Securities and coupons
in respect of which such judgment has been recovered.
SECTION
6.06 Application of Money Collected.
Any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution
of such money on account of principal or premium, if any, or any interest, upon presentation of the Securities or coupons, or both, as
the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts
due the Trustee under Section 7.06;
SECOND: To the payment of the amounts
then due and unpaid upon the Securities for principal of and premium, if any, and any interest on the Securities and coupons, 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 and coupons, for principal and any interest, respectively; and
THIRD: To the Company or its successors
or assigns, or to whomsoever may be lawfully entitled to receive the same.
SECTION
6.07 Limitation on Suits.
No holder of any Security of any series or any
related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless:
(a)
such holder has previously given written notice to the Trustee of a continuing Event of Default;
(b)
the holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c)
such holder or holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d)
the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such
proceedings; and
(e)
no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the holders of a
majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more such holders of
Securities shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such holders of Securities or to obtain or to seek to obtain priority or preference over any other
of such holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit
of all such holders of Securities.
SECTION
6.08 Unconditional Right of Securityholders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture,
the holder of any Security or coupon shall have the right, which is absolute and unconditional, to receive payment of the principal of
and premium, if any, and (subject to Section 2.05 and Section 3.02) any interest on such Security or payment of such coupon
on the respective stated maturities expressed in such Security or coupon (or, in the case of redemption, on the redemption date) and to
institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such holder.
SECTION
6.09 Restoration of Rights and Remedies.
If the Trustee or any holder of a Security or coupon
has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such holder, then and in every such case the Company, the Trustee
and the holders of Securities and coupons shall, subject to any determination in such proceeding, be restored severally and respectively
to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the holders shall continue as though no
such proceeding has been instituted.
SECTION
6.10 Rights and Remedies Cumulative.
Except as provided in Section 2.09, no right
or remedy herein conferred upon or reserved to the Trustee or to the holders of Securities or coupons is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION
6.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any holder
of any Security or coupon to exercise any right or remedy accruing upon any Default shall impair any such right or remedy or constitute
a waiver of any such Default or acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to
the holders of Securities or coupons may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by
the holders of Securities or coupons, as the case may be.
SECTION
6.12 Control by Securityholders.
The holders of a majority in principal amount of
Outstanding Securities of each series shall have the right to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the Trustee, provided that
(a)
such direction shall not be in conflict with any statute, rule of law or with this Indenture;
(b)
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(c)
the Trustee need not take any action which it in good faith determines might involve it in personal liability or be unjustly prejudicial
to the securityholders not consenting.
Upon receipt by the Trustee of any such direction
with respect to Securities of a series all or part of which is represented by a temporary global Security or a permanent global Security,
the Trustee shall establish a record date for determining holders of Outstanding Securities of such series entitled to join in such direction,
which record date shall be at the close of business on the day the Trustee receives such direction. The holders on such record date, or
their duly designated proxies, and only such persons, shall be entitled to join in such direction, whether or not such holders remain
holders after such record date, provided that, unless such majority in principal amount shall have been obtained prior to the day
which is 90 days after such record date, such direction shall automatically and without further action by any holder be cancelled
and of no further effect. Nothing in this paragraph shall prevent a holder, or a proxy of a holder, from giving, after expiration of such
90-day period, a new direction identical to a direction which has been cancelled pursuant to the proviso to the preceding sentence, in
which event a new record date shall be established pursuant to the provisions of this Section 6.12.
SECTION
6.13 Waiver of Past Defaults.
The holders of a majority in principal amount of
the Securities of each series at the time Outstanding may, on behalf of the holders of all the Securities of that series and any coupons
appertaining thereto, waive any past default hereunder and its consequences, except a default:
(a)
in the payment of the principal of, premium, if any, or any interest on any Security; or
(b)
in respect of a covenant or provision hereof that pursuant to Article 10 cannot be modified or amended without the consent
of the holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Default
or Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture, but no such waiver shall
extend to any subsequent or other default or impair any right consequent thereon.
SECTION
6.14 Undertaking for Costs.
All parties to this Indenture agree, and each holder
of any Security or coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit instituted by any holder, or group of holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any holder of any Securities or
coupons for the enforcement of the payment of the principal of, premium, if any, or any interest on any Security or the payment of any
coupon on or after the respective stated maturities expressed in such Security or coupon (or, in the case of redemption, on or after the
redemption date, except, in the case of a partial redemption, with respect to the portion not so redeemed).
SECTION
6.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension laws wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefits or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been enacted.
ARTICLE 7
CONCERNING THE TRUSTEE
SECTION
7.01 Duties and Responsibilities of Trustee.
(a)
The Trustee, prior to the occurrence of an Event of Default of a particular series and after the curing of all Events of Default
of such series which may have occurred, undertakes to perform such duties and only such duties with respect to such series as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee. In the absence
of bad faith on the part of the Trustee, the Trustee may 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 which by any provision hereof are specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture.
(b)
In case an Event of Default with respect to a particular series has occurred (which has not been cured), the Trustee shall exercise
with respect to such 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.
(c)
No provisions 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 a particular series and after the curing of all Events of Default
with respect to such series which may have occurred, the duties and obligations of the Trustee with respect to such series shall be determined
solely by the express provisions of this Indenture, and the Trustee shall not be liable 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;
(2)
the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(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 Securities pursuant to Section 6.12 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.
(d)
No provision of this Indenture shall be construed as requiring the Trustee to expend or risk its own funds or otherwise to incur
any personal financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
SECTION
7.02 Reliance on Documents, Opinions, etc.
Subject to the provisions of 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, bond, debenture, note, coupon 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 Company Request or
Company Order (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced
to the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of the Company; and whenever in the administration
of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers’ Certificate;
(c)
the Trustee may consult with counsel and the written advice of such counsel and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it 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 holders of any Securities or any related coupons pursuant to the provisions of this Indenture, unless
such holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might
be incurred therein or thereby;
(e)
the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or documents, but
the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
(f)
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; and
(g)
the Trustee shall not be liable for any action taken, suffered 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.
SECTION
7.03 No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities,
other than the Trustee’s certificate of authentication, and in any coupons shall be taken as the statements of the Company, and
the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities or coupons, provided that the Trustee shall not be relieved of its duty to authenticate Securities
only as authorized by this Indenture. The Trustee shall not be accountable for the use or application by the Company of Securities or
the proceeds thereof.
SECTION
7.04 Ownership of Securities.
The Trustee, any authenticating agent, any paying
agent, any Security Registrar or any other agent of the Company or of the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Securities and coupons with the same rights it would have if it were not Trustee, authenticating agent, paying
agent, Security Registrar or such other agent of the Company or of the Trustee.
SECTION
7.05 Moneys to be Held in Trust.
Subject to the provisions of Section 12.04
hereof, all moneys received by the Trustee or any paying agent 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. Neither the Trustee
nor any paying agent shall be under any liability for interest on any moneys received by it hereunder except such as it may agree in writing
with the Company to pay thereon.
SECTION
7.06 Compensation and Expenses of Trustee.
The Company covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such compensation for all services rendered by it hereunder as the Company
and the Trustee shall from time to time agree in writing (which to the extent permitted by law shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust), and, except as otherwise expressly provided, the Company will pay
or reimburse the Trustee forthwith 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. If any property other than cash shall at any time be subject to the lien of this Indenture, the Trustee, if and to the extent
authorized by a receivership or bankruptcy court of competent jurisdiction or by the supplemental instrument subjecting such property
to such lien, shall be entitled to make and to be reimbursed for, advances for the purpose of preserving such property or of discharging
tax liens or other prior liens or encumbrances thereon. The Company also covenants to indemnify the Trustee for, and to hold it harmless
against, any and all loss, damage, claims, liability or expense, including taxes (other than taxes based upon, measured or determined
by, the income of the Trustee) incurred without negligence or bad faith on the part of the Trustee, 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. The
obligations of the Company under this Section 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.
To secure the Company’s obligations under
this Section, the Trustee shall have a senior claim to which the Securities are hereby made subordinate on all money or property held
or collected by the Trustee, except that held in trust to pay principal of (and premium, if any) and interest, if any, on particular Securities.
When the Trustee incurs expenses or renders services
after an Event of Default, the expenses and the compensation for the services are intended to constitute expenses of administration under
any bankruptcy law.
SECTION
7.07 Officers’ Certificate as Evidence.
Subject to the provisions of 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 any action to be taken 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 by it under the
provisions of this Indenture upon the faith thereof.
SECTION
7.08 Disqualifications; Conflicting Interest of Trustee.
If the Trustee has or shall acquire any “conflicting
interest” within the meaning 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 Eligibility of Trustee.
There shall at all times be a Trustee hereunder
which shall be a corporation organized and doing business under the laws of the United States or of any State or Territory thereof or
of the District of Columbia, which (a) is authorized under such laws to exercise corporate trust powers, (b) is subject to supervision
or examination by federal, state, territorial or District of Columbia authority, (c) shall have at all times a combined capital and
surplus of not less than $5,000,000 and (d) shall not be the Company or any person directly or indirectly controlling, controlled
by, or under common control with the Company. 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 at any time shall be deemed to be its combined capital and surplus as set forth in its most recent report
of condition so published. 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 or Removal of Trustee.
(a)
The Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series by
giving written notice of resignation to the Company. Upon receiving such notice of resignation, the Company shall promptly appoint a successor
trustee with respect to the applicable 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. 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 of the following shall occur:
(1)
the Trustee shall fail to comply with the provisions of subsection (a) of Section 7.08 with respect to any series
of Securities after written request therefor by the Company or by any securityholder who has been a bona fide holder of a Security or
Securities of such series for at least six months, or
(2)
the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 with respect to any series of Securities
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 with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver of the Trustee or of its property shall be appointed, 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 the applicable series of Securities and appoint a successor trustee with respect to 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 Trustee so removed and one copy to
the successor trustee, or, subject to the provisions of Section 6.14, any securityholder of such series who has been a bona fide
holder of a Security or Securities of the applicable series for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with
respect to such series. 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 all series (voting as one class) at the time Outstanding
may at any time remove the Trustee with respect to Securities of all series and appoint a successor trustee with respect to the Securities
of all series.
(d)
Any resignation or removal of the Trustee and any appointment of a successor trustee pursuant to any of the provisions of this
Section shall become effective upon the appointment of a successor trustee and the acceptance of appointment by the successor trustee
as provided in Section 7.11.
SECTION
7.11 Acceptance by Successor Trustee.
Any successor trustee appointed as provided in
Section 7.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties
and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Company or of the successor trustee, the predecessor trustee shall, upon payment of any amounts
then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee
all the rights and powers of the predecessor trustee. Upon request of any such successor trustee, the Company shall execute any and all
instruments in writing in order more fully and certainly to vest in and confirm to such successor trustee all such rights and powers.
Any trustee, including the initial Trustee, ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of Section 7.06.
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 predecessor Trustee and each successor trustee
with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in
the predecessor Trustee, and 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 and 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.
No successor trustee shall accept appointment as
provided in this Section unless at the time of such acceptance such successor trustee shall be qualified and eligible under the provisions
of this Article 7.
Upon acceptance of appointment by a successor trustee
as provided in this Section, the Company shall mail notice of the succession of such trustee hereunder to all holders of Securities of
any applicable series as the names and addresses of such holders shall appear on the registry books. If the Company fails to mail such
notice in the prescribed manner within ten days after the acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be so mailed at the expense of the Company.
SECTION
7.12 Successor by Merger, etc.
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 all or substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such corporation shall be qualified and eligible under the provisions of this
Article 7, 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 Limitations on Rights of Trustee as Creditor.
The Trustee shall comply with Section 311(a) of
the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee
who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
SECTION
7.14 Notice of Default.
Within 90 days after the occurrence of any
default on a series of Securities hereunder, the Trustee shall transmit to all securityholders of that series, in the manner and to the
extent provided in Section 15.04, notice of such default hereunder known to the Trustee, unless such default shall have been cured
or waived; provided, however, that except in the case of a default in the payment of the principal of or interest on any
Security or on the payment of any sinking or purchase fund installment, the Trustee shall be protected in withholding such notice if and
so long as the trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of
such notice is in the interests of the security-holders; and provided, further, that in the case of any default of the character
specified in clause (c) of Section 6.01 no such notice to securityholders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities of such series.
SECTION
7.15 Appointment of Authenticating Agent.
The Trustee may appoint an authenticating agent
or agents (which may be an affiliate or affiliates of the Company) with respect to one or more series of Securities which shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue or upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 2.09, 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. Wherever reference
is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an authenticating agent and a certificate
of authentication executed on behalf of the Trustee by an authenticating agent. Each authenticating agent shall be acceptable to the Company
and shall at all times be a corporation organized and doing business under the laws of the United States of America or of any State or
Territory thereof or of the District of Columbia, which (a) is authorized under such laws to exercise corporate trust powers or to
otherwise act as authenticating agent, (b) is subject to supervision or examination by federal, state, territorial or District of
Columbia authority, and (c) shall have at all times a combined capital and surplus of not less than $5,000,000. If such authenticating
agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such authenticating agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any time an authenticating agent shall cease
to be eligible in accordance with the provisions of this Section, such authenticating agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an authenticating agent
may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which such authenticating agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business
of such authenticating agent, shall continue to be an authenticating agent, provided such corporation shall be otherwise eligible under
this Section, without the execution or filing of any paper or any further act on the part of the Trustee or such authenticating agent.
An authenticating agent may resign at any time
by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an authenticating
agent by giving written notice thereof to such authenticating agent and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such authenticating agent shall cease to be eligible in accordance with the provisions
of this Section, the Trustee may appoint a successor authenticating agent which shall be acceptable to the Company and shall promptly
give notice of such appointment to all holders of Securities in the manner and to the extent provided in Section 15.04. Any successor
authenticating agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an authenticating agent. No successor authenticating agent shall be appointed unless
eligible under the provisions of this Section.
The Trustee agrees to pay to each authenticating
agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed
for such payments, subject to the provisions of Section 7.06.
If an appointment with respect to one or more series
is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate
of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
|
[_______________________________], |
|
as Trustee |
|
|
|
By: |
|
|
Authorized Signatory |
If all of the Securities of a series may not be
originally issued at one time, and the Trustee does not have an office capable of authenticating Securities upon original issuance located
in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance, the Trustee, if
so requested by the Company in writing, shall appoint in accordance with this Section an authenticating agent (which, if so requested
by the Company, shall be such affiliate of the Company) having an office in a Place of Payment designated by the Company with respect
to such series of Securities, provided that the terms and conditions of such appointment are acceptable to the Trustee.
ARTICLE 8
CONCERNING THE SECURITYHOLDERS
SECTION
8.01 Action by Securityholders.
Whenever in this Indenture it is provided that
the holders of a specified percentage in aggregate principal amount of the Securities of any or all series may take any action (including
the making of any demand or request, the giving of any authorization, 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 specified percentage have joined therein may be evidenced (a) by
any instrument or any number of instruments of similar tenor executed by securityholders in person or by agent or proxy appointed in writing,
or (b) if Securities of a series are issuable as Bearer Securities, by the record of the holders of Securities voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of securityholders of such series duly called and held in accordance
with the provisions of Article 9, or (c) by a combination of such instrument or instruments and any such record of such a meeting
of securityholders.
In determining whether the holders of a specified
percentage in aggregate principal amount of the Securities of any or all series have taken any action (including the making of any demand
or request, the giving of any authorization, direction, notice, consent or waiver or the taking of any other action), (i) the principal
amount of any Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be outstanding
for such purposes shall be equal to the amount of the principal thereof that could be declared to be due and payable upon an Event of
Default pursuant to the terms of such Original Issue Discount Security at the time the taking of such of such action is evidenced to the
Trustee, and (ii) the principal amount of a Security denominated in a foreign currency or currency unit shall be the U.S. dollar
equivalent, determined as of the date of original issuance of such Security in accordance with Section 2.03(b) hereof, of the
principal amount of such Security.
SECTION
8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01,
Section 7.02 and Section 9.05, proof of the execution of any instrument by a securityholder or its agent or proxy, or of the
holding by any person of a Security, shall be sufficient and conclusive in favor of the Trustee and the Company if made in accordance
with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee.
The principal amount and serial numbers of Registered
Securities held by any person, and the date of holding the same, shall be proved by the Security Register. The principal amount and serial
numbers of Bearer Securities held by any person, and the date of holding the same, may be proved by the production of such Bearer Securities
or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever situated, if such certificate
shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such person had on deposit with such depositary,
or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the person
holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Company
may assume that such ownership of any Bearer Security continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2) such Bearer Security is produced to the Trustee by some other person,
or (3) such Bearer Security is surrendered in exchange for a Registered Security, or (4) such Bearer Security is no longer Outstanding.
The principal amount and serial numbers of Bearer Securities held by any person, and the date of holding the same, may also be provided
in any other manner which the Trustee deems sufficient.
The record of any securityholders’ meeting
shall be proved in the manner provided in Section 9.06.
SECTION
8.03 Who Are Deemed Absolute Owners.
Prior to due presentment of a Registered Security
for registration of transfer, the Company, the Trustee and any agent of the Company or of the Trustee may deem the person in whose name
such Registered Security shall be registered upon the Security Register to be, and may treat him as, the absolute owner of such Registered
Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon), for the
purpose of receiving payment of or on account of the principal of (and premium, if any) and, subject to the provisions of Section 2.05
and Section 2.07, any interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any agent
of the Company or of the Trustee shall be affected by any notice to the contrary. All such payments so made to any holder for the time
being, or upon his order, shall be valid and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability
for moneys payable upon any such Security.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the Company or of the Trustee may treat the bearer of any Bearer
Security and the bearer of any coupon as the owner of such Security or coupon for the purpose of receiving payment thereof or on account
thereof and for all other purposes whatsoever, whether or not such Security or coupon be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to
any temporary or permanent global Security, nothing herein shall prevent the Company, the Trustee, or any agent of the Company or of the
Trustee, from giving effect to any written certification, proxy or other authorization furnished by a Common Depositary or a U.S. Depositary,
as the case may be, or impair, as between a Common Depositary or a U.S. Depositary and holders of beneficial interests in any temporary
or permanent global Security, as the case may be, the operation of customary practices governing the exercise of the rights of the Common
Depositary or the U.S. Depositary as holder of such temporary or permanent global Security.
SECTION
8.04 Company-Owned Securities Disregarded.
In determining whether the holders of the required
aggregate principal amount of Securities have provided any request, demand, authorization, notice, direction, consent or waiver under
this Indenture, Securities which are owned by the Company or any other obligor on the Securities, or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the Company or any other obligor on the Securities, 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 request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows are so owned shall be so disregarded. Securities so owned which 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 to vote 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 the 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 Revocation of Consents; Future Securityholders Bound.
At any time prior to the taking of any action by
the holders of the percentage in aggregate principal amount of the Securities specified in this Indenture in connection with such action,
any holder of a Security, the identifying number of which 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 at its office 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 upon registration
of transfer of or in exchange or substitution therefor in respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, irrespective of whether or not any notation in regard thereto is made upon such Security. Any action taken
by the holders of the percentage in aggregate principal amount of the Securities 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.
SECTION
8.06 Record Date.
The Company may, but shall not be obligated to,
set a record date for purposes of determining the identity of holders of Securities of any series entitled to vote or consent to any action
by vote or consent or to otherwise take any action under this Indenture authorized or permitted by Section 6.12 or Section 6.13
or otherwise under this Indenture. Such record date shall be the later of (i) the date 20 days prior to the first solicitation
of such consent or vote or other action and (ii) the date of the most recent list of holders of such Securities delivered to the
principal corporate trust office of the Trustee pursuant to Section 5.01 prior to such solicitation. If such a record date is fixed,
those persons who were holders of such Securities at the close of business on such record date shall be entitled to vote or consent or
take such other action, or to revoke any such action, whether or not such persons continue to be holders after such record date, and for
that purpose the Outstanding Securities shall be computed as of such record date.
ARTICLE 9
SECURITYHOLDERS’ MEETINGS
SECTION
9.01 Purposes of Meeting.
A meeting of holders of any or all series of Securities
may be called at any time and from time to time pursuant to the provisions of this Article for any of the following purposes:
(a)
to give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to waive any default hereunder
and its consequences, or to take any other action authorized to be taken by securityholders pursuant to any of the provisions of Article 6;
(b)
to remove the Trustee and appoint a successor trustee pursuant to the provisions of Article 7;
(c)
to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02;
or
(d)
to take any other action authorized to be taken by or on behalf of the holders of any specified aggregate principal amount of the
Securities of any or all series, as the case may be, under any other provision of this Indenture or under applicable law.
SECTION
9.02 Call of Meetings by Trustee.
The Trustee may at any time call a meeting of security-holders
of any or all series to take any action specified in Section 9.01, to be held at such time and at such place in Williamsport, Pennsylvania
or Philadelphia, Pennsylvania as the Trustee shall determine. Notice of every meeting of the securityholders of any or all series, setting
forth the time and place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given in the manner
provided in Section 15.04 not less than 20 nor more than 180 days prior to the date fixed for the meeting.
SECTION
9.03 Call of Meetings by Company or Securityholders.
In case at any time the Company, pursuant to a
Board Resolution, or the holders of at least 10% in aggregate principal amount of the Securities of any or all series, as the case may
be, then Outstanding, shall have requested the Trustee to call a meeting of securityholders of any or all series to take any action authorized
in Section 9.01, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee
shall not have provided notice of such meeting in the manner provided in Section 15.04 within 30 days after receipt of such
request, then the Company or the holders of such Securities in the amount above specified may determine the time and the place in Williamsport,
Pennsylvania or Philadelphia, Pennsylvania for such meeting and may call such meeting by giving notice thereof as provided in Section 9.02.
SECTION
9.04 Qualifications for Voting.
To be entitled to vote at any meeting of securityholders
a person shall be a holder of one or more Securities of such series Outstanding with respect to which a meeting is being held or a person
appointed by an instrument in writing as proxy by such a holder or holders. The only persons who shall be entitled to be present or to
speak at any meeting of the securityholders of any series shall be the persons entitled to vote at such meeting and their counsel and
any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
SECTION
9.05 Regulations.
Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for any meeting of securityholders of a series, 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 deems fit. Except as otherwise permitted or required by any such regulations, the holding of Securities shall
be proved in the manner specified in Article 8 and the appointment of any proxy shall be proved in the manner specified in Article 8
or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Article 8 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof specified in Article 8 or other proof.
The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by securityholders as provided
in Section 9.03, in which case the Company or the securityholders 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 holders of a majority
in principal amount of the Securities represented at the meeting and entitled to vote.
Subject to the provisions of Section 8.01
and Section 8.04, at any meeting each securityholder or proxy shall be entitled to one vote for each $1,000 (or the U.S. Dollar
equivalent thereof in connection with Securities issued in a foreign currency or currency unit) Outstanding 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 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 securityholder or proxy. Any meeting of securityholders duly called pursuant to the provisions
of Section 9.02 or Section 9.03 may be adjourned from time to time, and the meeting may be reconvened without further notice.
SECTION
9.06 Voting.
The vote upon any resolution submitted to any meeting
of securityholders shall be by written ballot on which shall be subscribed the signatures of the securityholders or proxies and on which
shall be inscribed the identifying number or numbers or to which shall be attached a list of identifying numbers of the Securities held
or represented by them. The 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 in duplicate of the proceedings of each meeting of securityholders shall be prepared by the
secretary of the meeting and there shall be attached to the 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 the notice was mailed as provided in Section 9.02. The record shall be signed and verified by the chairman and secretary
of the meeting and one of the duplicates shall be delivered to the Company and the other 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 10
SUPPLEMENTAL INDENTURES
SECTION
10.01 Supplemental Indentures without Consent of Securityholders.
Without the consent of any holders of Securities
or coupons, the Company, when authorized by or pursuant to Board Resolution, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as in force at the
date of the execution thereof) for one or more of the following purposes:
(a)
to evidence the succession of another corporation to the Company, or successive successions, pursuant to Article 11 hereof,
and the assumption by the successor corporation of the covenants, agreements and obligations of the Company herein and in the Securities;
(b)
to add to the covenants of the Company such further covenants, restrictions, conditions or provisions as its Board of Directors
shall consider to be for the protection of the holders of Securities, and to make the occurrence, or the occurrence and continuance, of
a default in any of such additional covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement of
all or any of the several remedies provided in this Indenture as herein set forth, with such period of grace, if any, and subject to such
conditions as such supplemental indenture may provide;
(c)
to add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal of or any premium or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities
of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form, provided that any such
action shall not adversely affect the interests of the holders of Securities of any series or any related coupons in any material respect;
(d)
to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification
of this Indenture under the Trust Indenture Act, or under any similar federal statute hereafter enacted, and to add to this Indenture
such other provisions as may be expressly permitted by the Trust Indenture Act, excluding however, the provisions referred to in Section 316(a)(2) of
the Trust Indenture Act or any corresponding provision in any similar federal statute hereafter enacted;
(e)
to modify, eliminate or add to any of the provisions of this Indenture, provided that any such change or elimination (i) shall
become effective only when there is no Security of any series Outstanding and created prior to the execution of such supplemental indenture
that is entitled to the benefit of such provision or (ii) shall not apply to any Security Outstanding;
(f)
to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provisions contained herein or in any supplemental indenture; to convey, transfer, assign, mortgage
or pledge any property to or with the Trustee; or to make such other provisions in regard to matters or questions arising under this Indenture,
provided such other provisions shall not adversely affect in any material respect the interests of the holders of the Securities or any
related coupons, including provisions necessary or desirable to provide for or facilitate the administration of the trusts hereunder;
(g)
to secure any series of Security; and
(h)
to evidence and provide for the acceptance and appointment hereunder by a successor trustee with respect to the Securities of one
or more series and to add or change any provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one trustee, pursuant to Section 7.11.
The Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall
not be obligated to enter into any such supplemental indenture which adversely affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise. No supplemental indenture shall be effective as against the Trustee unless and until the Trustee has
duly executed and delivered the same.
SECTION
10.02 Supplemental Indentures with Consent of Holders.
With the consent (evidenced as provided in Section 8.01)
of the holders of not less than 66⅔% in aggregate principal amount of the Securities of all series at the time Outstanding affected
by such supplemental indenture (voting as one class), the Company, when authorized by a Board Resolution, and the Trustee may from time
to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the
holders of the Securities of such series and any related coupons under this Indenture; provided, however, that no such supplemental
indenture shall (1) extend the fixed maturity of any Securities, or reduce the principal amount thereof or premium, if any, or reduce
the rate or extend the time of payment of interest thereon, without the consent of the holder of each Security so affected, (2) reduce
the aforesaid percentage of Securities, the consent of the holders of which is required for any such supplemental indenture, without the
consent of the holders of all Securities then Outstanding, or (3) modify any of the above provisions.
Upon
the request of the Company, accompanied by a copy of a Board Resolution certified by the Secretary or an Assistant Secretary of
the Company authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent
of securityholders 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.
It shall not be necessary for the consent of the
securityholders 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.
Promptly after the execution by the Company and
the Trustee of any supplemental indenture pursuant to the provisions of this Article 10, the Company shall provide notice, in the
manner and to the extent provided in Section 15.04, setting forth in general terms the substance of such supplemental indenture,
to all holders of Securities of each series so affected. Any failure of the Company so to provide such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such supplemental indenture.
SECTION
10.03 Compliance with Trust Indenture Act; Effect of Supplemental Indentures.
Any supplemental indenture executed pursuant to
the provisions of this Article 10 shall comply with the Trust Indenture Act, as then in effect. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article 10 and subject to the provisions in any supplemental indenture relating to the
prospective application of such instrument, this Indenture shall 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 theretofore or thereafter authenticated and delivered hereunder and of any coupons appertaining thereto 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.
The Trustee, subject to the provisions of Section 7.01
and Section 7.02, shall be entitled to receive and shall be fully protected in relying upon an Opinion of Counsel as conclusive evidence
that any such supplemental indenture complies with the provisions of this Article 10.
SECTION
10.04 Notation on Securities.
Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of this Article 10 may bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental indenture. New Securities of any series so modified as to conform, in
the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture
may be prepared by the Company, authenticated by the Trustee and delivered, without charge to the securityholders, in exchange for the
Securities of such series then Outstanding.
ARTICLE 11
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION
11.01 Company May Consolidate, etc., on Certain Terms.
The Company covenants that it will not merge into
or consolidate with any other corporation or sell or convey all or substantially all of its assets to any person, firm or corporation,
unless (1) either the Company shall be the continuing corporation, or the successor corporation (if other than the Company) shall
be a corporation organized and existing under the laws of the United States of America or a state thereof or the District of Columbia
and such corporation shall expressly assume the due and punctual payment of the principal of (and premium, if any, on) and any interest
on all the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions
of this Indenture to be performed by the Company by supplemental indenture satisfactory to the Trustee, executed and delivered to the
Trustee by such corporation, and (2) the Company or such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition.
SECTION
11.02 Successor Corporation Substituted.
In case of any such consolidation, merger, sale
or conveyance and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted
for, and may exercise every right and power of, the Company, with the same effect as if it had been named herein as the party of the first
part. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of the Company,
any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee;
and, upon the order of such successor corporation, instead of the Company, and subject to all the terms, conditions and limitations in
this Indenture prescribed, the Trustee shall authenticate and shall make available for delivery any Securities which previously shall
have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee for that purpose. All of the Securities so issued shall in
all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such Securities had been issued at the date of the execution thereof.
In case of any such consolidation, merger, sale
or conveyance such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may
be appropriate.
SECTION
11.03 Opinion of Counsel and Officers’ Certificate to be Given Trustee.
The Trustee shall receive an Opinion of Counsel
and Officers’ Certificate as conclusive evidence that any such consolidation, merger, sale or conveyance, and any such assumption,
complies with the provisions of this Article 11 and that all conditions precedent herein provided for relating to such transaction
have been complied with.
ARTICLE 12
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION
12.01 Discharge of Indenture.
If at any time
(a)
the Company shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated and all
coupons, if any, appertaining thereto (other than (i) coupons appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not required or has been waived as provided in Section 2.07, (ii) Securities
and coupons that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.09, (iii) coupons
appertaining to Securities called for redemption and maturing after the relevant Redemption Date, whose surrender has been waived as provided
in Section 3.03, and (iv) Securities and coupons for whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 4.03),
or
(b)
all such Securities of such series and, in the case of (1)(i) or (1)(ii) above, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation (i) shall have become due and payable, or (ii) are by their terms to become
due and payable within one year, or (iii) 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 in the case of (1)(i) or (1)(iii) above shall deposit or cause
to be deposited with the Trustee as trust funds the entire amount (other than moneys repaid by the Trustee or any paying agent to the
Company in accordance with Section 12.04) sufficient to pay at maturity or upon redemption all Securities of such series and coupons
not therefore delivered to the Trustee for cancellation, including principal (and premium, if any) and any interest due or to become due
to such date of maturity or date fixed for redemption, as the case may be, and if in either case the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company with respect to such series, then this Indenture shall cease to be of further
effect with respect to the Securities of such series, and the Trustee, on demand of and at the cost and expense of the Company and subject
to Section 15.05, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture with respect to the
Securities of such series. The Company agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred
by the Trustee in connection with this Indenture or the Securities of such series. Notwithstanding the satisfaction and discharge of this
Indenture with respect to the Securities of any series or of all series, the obligations of the Company to the Trustee under Section 7.06
shall survive.
The Company will deliver to the Trustee an Officers’
Certificate and an Opinion of Counsel which together shall state that all conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
SECTION
12.02 Deposited Moneys to be Held in Trust by Trustee.
Subject
to the provisions of the last paragraph of Section 4.03, all moneys deposited with the Trustee pursuant to Section 12.01 shall
be held in trust and applied by it to the payment, either directly or through any paying agent (including the Company acting as
its own paying agent), to the persons entitled thereto, of all sums due and to become due thereon for principal and interest (and premium,
if any) for which payment of such money has been deposited with the Trustee.
SECTION
12.03 Paying Agent to Repay Moneys Held.
In connection with the satisfaction and discharge
of this Indenture with respect to Securities of any series and the payment of all amounts due to the Trustee under Section 7.06,
all moneys with respect to such Securities then held by any paying agent under the provisions of this Indenture shall, upon demand of
the Company, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION
12.04 Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee
or any paying agent for the payment of the principal of (and premium, if any) or interest on any Security and not applied but remaining
unclaimed for two years after the date upon which such principal (and premium, if any, on) or interest shall have become due and payable,
shall be repaid to the Company by the Trustee or such paying agent on demand, and the holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for any payment which such holder may be entitled to collect and all liability of
the Trustee or any paying agent with respect to such moneys shall thereupon cease.
ARTICLE 13
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION
13.01 Indenture and Securities Solely Corporate Obligations.
No recourse under or upon any obligation, covenant
or agreement contained in this Indenture, or in any Security or coupon, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, or against any past, present or future stockholder, officer or director, as such, of the Company or of any successor
corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities or coupons by the holders thereof and as part of the consideration for the issue
of the Securities.
ARTICLE 14
DEFEASANCE AND COVENANT DEFEASANCE
SECTION
14.01 Applicability of Article.
Unless, as specified pursuant to Section 2.03(b),
provision is made that either or both of (a) defeasance of the Securities of a series under Section 14.02 and (b) covenant
defeasance of the Securities of a series under Section 14.03 shall not apply to the Securities of a series, then the provisions of
such Section 14.02 and Section 14.03, together with Section 14.04 and Section 14.05, shall be applicable to the Outstanding
Securities of all series upon compliance with the conditions set forth below in this Article 14.
SECTION
14.02 Defeasance and Discharge.
Subject to Section 14.05, the Company may
cause itself to be discharged from its obligations with respect to the Outstanding Securities of any series on and after the date the
conditions precedent set forth below are satisfied but subject to satisfaction of the conditions subsequent set forth below (hereinafter,
“defeasance”). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder:
(A) the rights of holders of Outstanding Securities of such series to receive, solely from the trust fund described in Section 14.04
and as more fully set forth in such Section, payments of the principal of and any premium and interest on such Securities when such payments
are due, (B) the Company’s obligations with respect to such Securities under Section 2.07, Section 2.08, Section 2.09,
Section 4.02 and Section 4.03 and such obligations as shall be ancillary thereto, (C) the rights, powers, trusts, duties,
immunities and other provisions in respect of the Trustee hereunder, and (D) this Article 14. Subject to compliance with this
Article 14, defeasance with respect to Securities of a series by the Company is permitted under this Section 14.02 notwithstanding
the prior exercise of its rights under Section 14.03 with respect to the Securities of such series. Following a defeasance, payment
of the Securities of such series may not be accelerated because of an Event of Default.
SECTION
14.03 Covenant Defeasance.
The Company may cause itself to be released from
its obligations under any Sections applicable to Securities of a series that are determined pursuant to Section 2.03(b) to be
subject to this provision with respect to the Outstanding Securities of such series on and after the date the conditions precedent set
forth below are satisfied but subject to satisfaction of the conditions subsequent set forth below (hereinafter, “covenant defeasance”).
For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of such series, the Company may omit
to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section, whether directly
or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION
14.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent
or, as specifically noted below, subsequent to application of either Section 14.02 or Section 14.03 to the Outstanding Securities
of such series:
(a)
The Company shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of such Securities,
(A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, sufficient, without reinvestment, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee to pay and discharge, (i) the principal of and any premium and interest on the Outstanding Securities of such series
to maturity or redemption, as the case may be, and (ii) any mandatory sinking fund payments or analogous payments applicable to the
Outstanding Securities of such series on the due dates thereof. Before such a deposit the Company may make arrangements satisfactory to
the Trustee for the redemption of Securities at a future date or dates in accordance with Article 3 which shall be given effect in
applying the foregoing. For this purpose, “U.S. Government Obligations” means securities that are (x) direct
obligations of the United States of America for the payment of which its full faith and credit is pledged or (y) 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, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government obligation or a specific payment of principal of or interest
on any such U.S. Government Obligation held by such custodian for the account of the holder of such depository receipt, provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such depository receipt;
(b)
No Default, or event that after notice or lapse of time, or both, would become a Default with respect to the Securities of such
series, shall have happened and be continuing (A) on the date of such deposit or (B) insofar as Section 6.01(a) and
Section 6.01(b) are concerned, at any time during the period ending on the 123rd day after the date of such deposit or,
if longer, ending on the day following the expiration of the longest preference period applicable to the Company in respect of such deposit
(it being understood that the condition in this clause (B) is a condition subsequent and shall not be deemed satisfied until the
expiration of such period);
(c)
Such defeasance or covenant defeasance shall not (A) cause the Trustee for the Securities of such series to have a conflicting
interest as defined in Section 7.08 or for purposes of the Trust Indenture Act with respect to any securities of the Company or
(B) result in the trust arising from such deposit to constitute,
unless it is qualified as, a regulated investment company under the Investment Company Act of 1940, as amended;
(d)
Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is a party or by which it is bound;
(e)
Such defeasance or covenant defeasance shall not cause any Securities of such series then listed on any registered national securities
exchange under the Exchange Act to be delisted;
(f)
In the case of a defeasance under Section 14.02, the Company shall have delivered to the Trustee an Opinion of Counsel stating
that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since
the date of this Indenture there has been a change in the applicable federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the holders of the Outstanding Securities of such series will not recognize income, gain or loss
for federal income tax purposes as a result of such defeasance and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such defeasance had not occurred;
(g)
In the case of covenant defeasance under Section 14.03, the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the holders of the Outstanding Securities of such series will not recognize income, gain or loss for federal income
tax purposes as a result of such covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant defeasance had not occurred;
(h)
Such defeasance or covenant defeasance shall be effected in compliance with any additional terms, conditions or limitations which
may be imposed on the Company in connection therewith pursuant to Section 2.03(b); and
(i)
The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all
conditions precedent and subsequent provided for in this Indenture relating to either the defeasance under Section 14.02 or the covenant
defeasance under Section 14.03, as the case may be, have been complied with.
SECTION
14.05 Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee pursuant to Section 14.04 in respect of the Outstanding Securities of
such series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture,
to the payment, either directly or through any paying agent (but not including the Company acting as its own paying agent) as the Trustee
may determine, to the holders of such Securities of all sums due and to become due thereon in respect of principal and any premium and
interest, but such money need not be segregated from other funds except to the extent required by law.
The
Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 14.04 or the principal and interest received in respect thereof.
Anything herein to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held
by it as provided in Section 14.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited
to effect an equivalent defeasance or covenant defeasance, provided that the Trustee shall not be required to liquidate any U.S. Government
Obligations in order to comply with the provisions of this paragraph.
Anything
herein to the contrary notwithstanding, if and to the extent the deposited money or U.S. Government Obligations (or the proceeds
thereof) either (i) cannot be applied by the Trustee in accordance with this Section because of a court order or (ii) are
for any reason insufficient in amount, then the Company’s obligations to pay principal of and any premium and interest on
the Securities of such series shall be reinstated to the extent necessary to cover the deficiency on any due date for payment. In any
such case, the Company’s interest in the deposited money and U.S. Government Obligations (and proceeds thereof) shall be reinstated
to the extent the Company’s payment obligations are reinstated.
ARTICLE 15
MISCELLANEOUS PROVISIONS
SECTION
15.01 Benefits of Indenture Restricted to Parties and Securityholders.
Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors
and assigns and the holders of the Securities, any legal or equitable right, remedy or claim under this Indenture or under any covenant
or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors
and assigns and the holders of the Securities.
SECTION
15.02 Provisions Binding on Company’s Successors.
All the covenants, stipulations, promises and agreements
in this Indenture contained by or in behalf of the Company shall bind its successors and assigns, whether so expressed or not.
SECTION
15.03 Addresses for Notices, etc., to Company and Trustee.
Any notice or demand which by any provisions 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 postage prepaid first class mail addressed (until another address is filed by the Company with the Trustee), as
follows: Penns Woods Bancorp, Inc., 300 Market Street, P.O. Box 967, Williamsport, Pennsylvania 17703 Attn: Chief Financial
Officer. Any notice, direction, request or demand by 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 principal corporate trust office of the Trustee as set forth in Section 4.02.
SECTION
15.04 Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein,
where this Indenture provides for notice of holders of Securities of any event,
(a)
such notice shall be sufficiently given to holders of Registered Securities if in writing and mailed, first-class postage prepaid,
to each holder of a Registered Security affected by such event, at the address of such holder as it appears in the Security Register,
not earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice; and
(b)
such notice shall be sufficiently given to holders of Bearer Securities if published in an Authorized Newspaper in the City of
Williamsport, Commonwealth of Pennsylvania and in such other city or cities as may be specified in such Securities on a Business Day at
least twice, the first such publication to be not earlier than the earliest date, and not later than the latest date, prescribed for the
giving of such notice.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give such notice to holders of Registered Securities by mail,
then such notification as shall be made with the approval of the Trustee shall constitute sufficient notice to such holders for every
purpose hereunder. In any case where notice to holders of Registered Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular holder of a Registered Security shall affect the sufficiency of such notice
with respect to other holders of Registered Securities or the sufficiency of any notice to holders of Bearer Securities given as provided
herein.
In case by reason of the suspension of publication
of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to
holders of Bearer Securities as provided above, then such notification as shall be given with the approval of the Trustee shall constitute
sufficient notice to such holders for every purpose hereunder. Neither the failure to give notice by publication to holders of Bearer
Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice to holders of Registered
Securities given as provided herein.
Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by holders of Securities shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Any request, demand, authorization, direction,
notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice
may be in an official language of the country of publication.
SECTION
15.05 Evidence of Compliance with Conditions Precedent.
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, if any, 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, if any, 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.
Each Officer’s Certificate and Opinion of
Counsel provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for
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
15.06 Legal Holidays.
In any case where the date of maturity of interest
on or principal of the Securities or the date fixed for redemption of any Securities shall be a Saturday or Sunday or a legal holiday
in New York, New York or Philadelphia, Pennsylvania, or in such other place or places as the Company may designate pursuant to Section 4.02,
or a day on which banking institutions in New York, New York or Philadelphia, Pennsylvania, or in such other place or places are authorized
by law or required by executive order to close, then payment of interest or principal (and premium, if any) need not be made on such date
but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed
for redemption, and no interest shall accrue for the period after such date.
SECTION
15.07 Trust Indenture Act to Control.
If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included in this Indenture
by any of Sections 310 to 317, inclusive, of the Trust Indenture Act, such required provision shall control.
SECTION
15.08 Execution in 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. Delivery of an executed signature page by facsimile or an email in PDF format shall have
the same legal effect as the delivery of a signature page containing an original signature.
SECTION
15.09 Governing Law.
This Indenture and each Security shall be deemed
to be a contract made under the laws of the Commonwealth of Pennsylvania, and for all purposes shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
SECTION
15.10 Separability Clause.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
The Trustee, by its execution of this Indenture,
hereby accepts the trusts in this Indenture declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, Penns Woods Bancorp, Inc.
has caused this Indenture to be signed and acknowledged by its Chief Executive Officer or its President or one of its Vice Presidents,
and the same to be attested by its Secretary or an Assistant Secretary; and [___________________] has caused this Indenture to be signed
and acknowledged by one of its Vice Presidents, and the same to be attested by one of its Assistant Secretaries, all as of the day and
year first above written.
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PENNS WOODS BANCORP, INC. |
ATTEST: |
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ATTEST: |
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[_______________________________________] |
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AS TRUSTEE |
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Title: |
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[Corporate Seal] |
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COMMONWEALTH OF [____________] |
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COUNTY OF [●] |
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On the _____ day of [____________, __________]
before me personally came _________________________, to me known, who, being by me duly sworn, did depose and say that (s)he resides at
_________________________ [, [____________, ________]], that (s)he is _________________________ of PENNS WOODS BANCORP, INC. , one
of the parties described in and which executed the above instrument; and that (s)he signed (his)(her) name thereto by like authority.
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Notary Public |
[DATE] |
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[NOTARIAL SEAL] |
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COMMONWEALTH OF |
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COUNTY OF |
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On the ______ day of
[____________, ________] before me personally came _________________________, to me known, who, being by me duly sworn, did depose and
say that (s)he resides at _________________________, that (s)he is ____________________ of [_________________________] as Trustee, one
of the parties described in and which executed the above instrument; and that (s)he signed (his)(her) name thereto by like authority.
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Notary Public |
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EXHIBIT A
[FORMS OF CERTIFICATION]
EXHIBIT A.1
[FORM OF
CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE (1) BEARER SECURITY,
SECURITY INITIALLY REPRESENTED BY A TEMPORARY GLOBAL
SECURITY OR (3) INTEREST ON A TEMPORARY GLOBAL SECURITY]
CERTIFICATE
[Insert title or sufficient description of Securities]
This is to certify that the above-captioned Securities
are being acquired by or on behalf of, (or for offer to resell or for resale to), and if this certificate is being delivered in connection
with a payment of interest, were beneficially owned by or on behalf of, (a) a person (other than a financial institution for purposes
of resale during the restricted period) who is not a United States person; or (b) a United States person (other than a financial
institution for purposes of resale during the restricted period) who is (i) a foreign branch of a United States financial institution
or (ii) a United States person acquiring such Securities through the foreign branch of a United States financial institution and
who for purposes of this certification holds such Securities through such financial institution on the date hereof, and, in the case of
either (i) or (ii), such United States financial institution has agreed, for the benefit of the Company, to comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as from time to time amended, and the regulations
thereunder; or (c) a financial institution for purposes of resale during the restricted period and such financial institution has
not acquired such Securities for purposes of resale directly or indirectly to a United States person or to a person within the United
States or its possessions. If the undersigned is a clearing organization, the undersigned has obtained a similar certificate from its
member organizations on which this certificate is based; provided, however, that if the undersigned has actual knowledge
that the information contained in such a certificate is false (and, absent documentary evidence that the beneficial owner of such Security
is not a United States person, it will be deemed to have actual knowledge that such certificate is false if it has a United States address
for such beneficial owner, other than a financial institution described above), the undersigned will not deliver a Security in temporary
or definitive bearer form to the person who signed such certificate notwithstanding the delivery of such certificate to the undersigned.
As used herein, “United States person”
means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws
of the United States and an estate or trust the income of which is subject to United States federal income taxation regardless of its
source, “United States” means the United States of America (including the States and the District of Columbia), “possessions”
of the United States include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and Northern Mariana Islands,
“restricted period” means the period described in Section 1.163-5(c)(2)(i)(D)(7) of the Treasury Regulations and
“financial institution” means the persons described in Section 1.165-12(c)(1)(v) of the Treasury Regulations.
We undertake to advise you by telex if the above
statement as to beneficial ownership is not correct on the date of delivery of the above-captioned Securities or on the interest payment
date with respect to the above-captioned Securities, as the case may be, as to all of such Securities.
We understand that this certificate may be required
in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof
to any interested party in such proceedings.
Dated: __________________, 20___
[To be dated on or after
__________________, 20___ (the
date determined as provided in the
Indenture)]
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[Name of Person Entitled to Receive
Bearer Security or Interest] |
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(Authorized Signatory) |
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EXHIBIT A.2
[FORM OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR AND CLEARSTREAM, LUXEMBOURG IN
CONNECTION WITH THE EXCHANGE OF A PORTION
OF A TEMPORARY GLOBAL SECURITY] CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that, based on certificates
we have received from each of the persons appearing in our records as persons entitled to a portion of ____________________ principal
amount of the above-captioned Securities (our “Qualified Account Holders”) substantially in the form set out in Exhibit A.1
to the Indenture relating to the above-captioned Securities, such principal amount of Securities (a) is owned by a person (other
than a financial institution for purposes of resale during the restricted period) who is not a United States person; (b) is owned
by a United States person (other than a financial institution for purposes of resale during the restricted period) who is (i) a foreign
branch of a United States financial institution or (ii) a United States person who acquired such Securities through the foreign branch
of a United States financial institution and who for purposes of this certification holds such Securities through such financial institution
on the date hereof and, in either case, such United States financial institution has agreed, for the benefit of the Company, to comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as from time to time amended,
and the regulations thereunder; or (c) is owned by a financial institution for purposes of resale during the restricted period and
such financial institution has certified that it has not acquired such Securities for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
To
the extent that we have knowledge that any of such certificates from a Qualified Account Holder is false and to the extent that we have
not received with respect to any Securities such certificates from Qualified Account Holders, we are not submitting for exchange
any portion of the temporary global Security attributable thereto.
We
further certify that as of the date hereof we have not received any notification from any of our Qualified Account Holders to the
effect that the statements made by such Qualified Account Holders with respect to any portion of the part submitted herewith for exchange
are no longer true and cannot be relied upon as of the date hereof.
As
used herein, “United States person” means a citizen or resident of the United States, a corporation, partnership or
other entity created or organized in or under the laws of the United States and an estate or trust the income of which is subject to United
States federal income taxation regardless of its source, “United States” means the United States of America (including the
States and the District of Columbia), “possessions” of the United States include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and Northern Mariana Islands, “restricted period” means the period described in Section 1.163-5(c)(2)(i)(D)(7) of
the Treasury Regulations and “financial institution” means the persons described in Section 1.165-12(c)(l)(v) of
the Treasury Regulations.
We understand that this certificate is required
in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof
to any interested party in such proceedings.
Dated: _______________, 20___ [To be dated no earlier than the Exchange
Date] |
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[Euroclear Bank] |
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[Clearstream Banking, société anonyme] |
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EXHIBIT A.3
[FORM OF
CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM, LUXEMBOURG TO OBTAIN INTEREST]
CERTIFICATE
[Insert title or sufficient description of Securities]
This is to certify that interest payable on the
interest payment date[s] on [insert date(s)] will be paid with respect to ____________________ principal amount of the above-captioned
Securities with respect to which we have received from the persons appearing in our records as being entitled to interest payable on such
date (our “Qualified Account Holders”) certificates substantially in the form set out in Exhibit A.1 to the Indenture
relating to the above-captioned Securities that such Securities (a) are owned by a person (other than a financial institution for
purposes of resale during the restricted period) who is not a United States person; (b) are owned by a United States person (other
than a financial institution for purposes of resale during the restricted period) who is (i) a foreign branch of a United States
financial institution or (ii) a United States person who acquired such Securities through the foreign branch of a United States financial
institution and who for purposes of this certification holds such Securities through such financial institution on the date hereof and,
in either case, such United States financial institution has agreed, for the benefit of the Company, to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as from time to time amended, and the regulations
thereunder; or (c) are owned by a financial institution for purposes of resale during the restricted period and such financial institution
has certified that it has not acquired such Securities for purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
To
the extent that we have knowledge that any of such certificates from a Qualified Account Holder is false and to the extent that
we have not received with respect to any Securities such certificates from Qualified Account Holders, we are not requesting that payment
be made for interest with respect thereto.
We further certify that as of the date hereof we
have not received any notification from any of our Qualified Account Holders to the effect that the statements made by such Qualified
Account Holders with respect to any interest payment on any portion of the principal amount of the Securities referred to above are no
longer true and cannot be relied upon as of the date hereof.
We undertake that any interest received by us and
not paid as provided above shall be returned to the Trustee for the above-captioned Securities immediately prior to the expiration of
two years after such interest payment date in order to be repaid by such Trustee to the above issuer at the end of two years
after such interest payment date.
As used herein, “United States person”
means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws
of the United States and an estate or trust the income of which is subject to United States federal income taxation regardless of its
source, “United States” means the United States of America (including the States and the District of Columbia), “possessions”
of the United States include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and Northern Mariana Islands,
“restricted period” means the period described in Section 1.163-5(c)(2)(i)(D)(7) of the Treasury Regulations and
“financial institution” means the persons described in Section 1.165-12(c)(l)(v) of the Treasury Regulations.
We understand that this certificate is required
in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof
to any interested party in such proceedings.
Dated: _______________, 20___ |
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[To be dated on or after the most recent relevant |
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interest payment date] |
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[Euroclear Bank] |
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[Clearstream Banking, société anonyme] |
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By: |
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EXHIBIT 4.2
PENNS WOODS BANCORP, INC.
AS ISSUER
AND
[__________________________],
AS TRUSTEE
INDENTURE
DATED AS OF [________________, _______]
SUBORDINATED DEBT SECURITIES
CROSS-REFERENCE SHEET*
Provisions of Sections 310 through 318 of
the Trust Indenture Act of 1939, as amended, and the within Indenture between Penns Woods Bancorp, Inc. and [_________________],
Trustee:
SECTION OF ACT |
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SECTION OF INDENTURE |
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310(a)(1) and (2) |
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7.09 |
310(a)(3) and (4) |
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Not applicable |
310(b) |
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7.08 and 7.10 |
310(c) |
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Not applicable |
311(a) and (b) |
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7.13 |
311(c) |
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Not applicable |
312(a) |
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5.01 and 5.02(a) |
312(b) and (c) |
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5.02(b) and (c) |
313(a) |
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5.04(a) |
313(b)(1) |
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Not applicable |
313(b)(2) |
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5.04(b) |
313(c) |
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5.04(c) |
313(d) |
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5.04(d) |
314(a) |
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5.03 |
314(b) |
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Not applicable |
314(c)(1) and (2) |
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14.04 |
314(c)(3) |
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Not applicable |
314(d) |
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Not applicable |
314(e) |
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15.05 |
314(f) |
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Not applicable |
315(a), (c) and (d) |
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7.01 |
315(b) |
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7.14 |
315(e) |
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6.14 |
316(a)(1) |
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6.12 |
316(a)(2) |
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Omitted |
316(a) last sentence |
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8.04 |
316(b) |
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6.08 |
317(a) |
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6.03 and 6.04 |
317(b) |
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4.03(a) |
318(a) |
|
15.07 |
*This Cross-Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS |
1 |
Section 1.01 |
Definitions. |
1 |
|
|
ARTICLE 2
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
5 |
Section 2.01 |
Amount Unlimited; Issuable in Series |
5 |
Section 2.02 |
Form of Trustee’s Certificate of Authentication |
5 |
Section 2.03 |
Form of Securities Generally; Establishment of
Terms of Series |
5 |
Section 2.04 |
Securities in Global Form |
8 |
Section 2.05 |
Denominations; Record Date; Payment of Interest |
8 |
Section 2.06 |
Execution, Authentication, Delivery and Dating of Securities |
9 |
Section 2.07 |
Exchange and Registration of Transfer of Securities |
11 |
Section 2.08 |
Temporary Securities |
13 |
Section 2.09 |
Mutilated, Destroyed, Lost or Stolen Securities and
Coupons |
15 |
Section 2.10 |
Cancellation |
16 |
Section 2.11 |
Book-Entry Only System |
16 |
|
|
ARTICLE 3
REDEMPTION OF SECURITIES |
16 |
Section 3.01 |
Redemption of Securities; Applicability of Section |
16 |
Section 3.02 |
Notice of Redemption; Selection of Securities |
16 |
Section 3.03 |
Payment of Securities Called for Redemption |
17 |
Section 3.04 |
Redemption Suspended During Event of Default |
18 |
|
|
ARTICLE 4
PARTICULAR COVENANTS OF THE COMPANY |
18 |
Section 4.01 |
Payment of Principal, Premium and Interest |
18 |
Section 4.02 |
Offices for Notices and Payments, etc. |
19 |
Section 4.03 |
Provisions as to Paying Agent |
20 |
Section 4.04 |
Statement as to Compliance |
21 |
Section 4.05 |
Corporate Existence |
21 |
Section 4.06 |
Reserved |
21 |
Section 4.07 |
Waiver of Covenants |
21 |
Section 4.08 |
Notice of Default |
21 |
|
|
ARTICLE 5
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
21 |
Section 5.01 |
Securityholder Lists |
21 |
Section 5.02 |
Preservation and Disclosure of Lists |
22 |
Section 5.03 |
Reports by the Company |
22 |
Section 5.04 |
Reports by the Trustee |
22 |
|
|
ARTICLE 6
REMEDIES |
23 |
Section 6.01 |
Events of Default; Acceleration of Maturity |
23 |
Section 6.02 |
Rescission and Annulment |
24 |
Section 6.03 |
Collection of Indebtedness and Suits for Enforcement
by Trustee |
24 |
Section 6.04 |
Trustee
May File Proofs of Claim |
25 |
Section 6.05 |
Trustee
May Enforce Claims Without Possession of Securities or Coupons |
25 |
Section 6.06 |
Application
of Money Collected |
26 |
Section 6.07 |
Limitation
on Suits |
26 |
Section 6.08 |
Unconditional
Right of Securityholders to Receive Principal and Interest |
26 |
Section 6.09 |
Restoration
of Rights and Remedies |
26 |
Section 6.10 |
Rights
and Remedies Cumulative |
27 |
Section 6.11 |
Delay
or Omission Not Waiver |
27 |
Section 6.12 |
Control
by Securityholders |
27 |
Section 6.13 |
Waiver
of Past Defaults |
28 |
Section 6.14 |
Undertaking
for Costs |
28 |
Section 6.15 |
Waiver
of Stay or Extension Laws |
28 |
|
|
ARTICLE 7
CONCERNING THE TRUSTEE |
28 |
Section 7.01 |
Duties
and Responsibilities of Trustee |
28 |
Section 7.02 |
Reliance
on Documents, Opinions, etc. |
29 |
Section 7.03 |
No
Responsibility for Recitals, etc. |
30 |
Section 7.04 |
Ownership
of Securities |
30 |
Section 7.05 |
Moneys
to be Held in Trust |
30 |
Section 7.06 |
Compensation
and Expenses of Trustee |
30 |
Section 7.07 |
Officers’
Certificate as Evidence |
31 |
Section 7.08 |
Disqualifications;
Conflicting Interest of Trustee |
31 |
Section 7.09 |
Eligibility
of Trustee |
31 |
Section 7.10 |
Resignation
or Removal of Trustee |
31 |
Section 7.11 |
Acceptance
by Successor Trustee |
32 |
Section 7.12 |
Successor
by Merger, etc. |
33 |
Section 7.13 |
Limitations
on Rights of Trustee as Creditor |
33 |
Section 7.14 |
Notice
of Default |
33 |
Section 7.15 |
Appointment
of Authenticating Agent |
33 |
|
|
ARTICLE 8
CONCERNING THE SECURITYHOLDERS |
35 |
Section 8.01 |
Action
by Securityholders |
35 |
Section 8.02 |
Proof
of Execution by Securityholders |
35 |
Section 8.03 |
Who
Are Deemed Absolute Owners |
36 |
Section 8.04 |
Company-Owned
Securities Disregarded |
36 |
Section 8.05 |
Revocation
of Consents; Future Securityholders Bound |
36 |
Section 8.06 |
Record
Date |
37 |
|
|
ARTICLE 9
SECURITYHOLDERS’ MEETINGS |
37 |
Section 9.01 |
Purposes
of Meeting |
37 |
Section 9.02 |
Call
of Meetings by Trustee |
37 |
Section 9.03 |
Call
of Meetings by Company or Securityholders |
37 |
Section 9.04 |
Qualifications
for Voting |
38 |
Section 9.05 |
Regulations |
38 |
Section 9.06 |
Voting |
38 |
ARTICLE 10
SUPPLEMENTAL INDENTURES |
39 |
Section 10.01 |
Supplemental Indentures without
Consent of Securityholders |
39 |
Section 10.02 |
Supplemental Indentures with Consent of Holders |
40 |
Section 10.03 |
Compliance with Trust Indenture Act; Effect of Supplemental
Indentures |
40 |
Section 10.04 |
Notation on Securities |
41 |
|
|
ARTICLE 11
CONSOLIDATION, MERGER, SALE OR CONVEYANCE |
41 |
Section 11.01 |
Company May Consolidate, etc., on Certain
Terms |
41 |
Section 11.02 |
Successor Corporation Substituted |
41 |
Section 11.03 |
Opinion of Counsel and Officers’ Certificate
to be Given Trustee |
41 |
|
|
ARTICLE 12
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS |
42 |
Section 12.01 |
Discharge of Indenture |
42 |
Section 12.02 |
Deposited Moneys to be Held in Trust by Trustee |
42 |
Section 12.03 |
Paying Agent to Repay Moneys Held |
42 |
Section 12.04 |
Return of Unclaimed Moneys |
43 |
|
|
ARTICLE 13
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
43 |
Section 13.01 |
Indenture and Securities Solely Corporate Obligations |
43 |
|
|
ARTICLE 14
DEFEASANCE AND COVENANT DEFEASANCE |
43 |
Section 14.01 |
Applicability of Article |
43 |
Section 14.02 |
Defeasance and Discharge |
43 |
Section 14.03 |
Covenant Defeasance |
44 |
Section 14.04 |
Conditions to Defeasance or Covenant Defeasance |
44 |
Section 14.05 |
Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions |
45 |
|
|
ARTICLE 15
MISCELLANEOUS PROVISIONS |
46 |
Section 15.01 |
Benefits of Indenture Restricted to Parties and Securityholders |
46 |
Section 15.02 |
Provisions Binding on Company’s Successors |
46 |
Section 15.03 |
Addresses for Notices, etc., to Company and Trustee |
46 |
Section 15.04 |
Notice to Holders of Securities; Waiver |
46 |
Section 15.05 |
Evidence of Compliance with Conditions Precedent |
47 |
Section 15.06 |
Legal Holidays |
47 |
Section 15.07 |
Trust Indenture Act to Control |
47 |
Section 15.08 |
Execution in Counterparts |
48 |
Section 15.09 |
Governing Law |
48 |
Section 15.10 |
Separability Clause |
48 |
|
|
ARTICLE 16
SUBORDINATION OF SECURITIES |
48 |
Section 16.01 |
Securities Subordinate to Senior Indebtedness |
48 |
THIS INDENTURE, dated as of [_____________,______]
between Penns Woods Bancorp, Inc. , a corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania
(the “Company”), and [________________] (the “Trustee,” which term shall include any successor
trustee appointed pursuant to Article 7 of this Indenture).
WHEREAS, the Company deems it necessary to issue
from time to time for its lawful purposes securities (the “Securities”) evidencing its unsecured indebtedness and
has duly authorized the execution and delivery of this Indenture to provide for the issuance of the Securities in one or more series,
unlimited as to principal amount, to bear such rates of interest, to mature at such time or times, and to have such other provisions
as shall be fixed as hereinafter provided; and
WHEREAS, the Company represents that all acts
and things necessary to constitute these presents a valid indenture and agreement according to its terms have been done and performed,
and the execution of this Indenture has in all respects been duly authorized, and the Company, in the exercise of legal right and power
in it vested, is executing this Indenture;
NOW, THEREFORE:
In order to declare the terms and conditions upon
which the Securities are authenticated, issued and received, and in consideration of the premises, of the purchase and acceptance of
the Securities by the holders thereof and of the sum of One Dollar to it duly paid by the Trustee at the execution of these presents,
the receipt whereof is hereby acknowledged, the Company covenants and agrees with the Trustee, for the equal and proportionate benefit
of the respective holders from time to time of the Securities, as follows:
ARTICLE 1
DEFINITIONS
SECTION
1.01. Definitions.
The
terms defined in this Section (except as herein 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. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or that are by reference therein defined in the Securities
Act of 1933 shall have the meanings (except as herein otherwise expressly provided or unless the context otherwise requires) assigned
to such terms in the Trust Indenture Act of 1939 and in the Securities Act of 1933 as in force at the date of this Indenture as
originally executed. All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance
with United States generally accepted accounting principles, and the term “generally accepted accounting principles” means
such accounting principles as are generally accepted at the time of any computation. The words “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. The terms defined in this Article have the meanings assigned to them in this Article and include the plural
as well as the singular.
“Additional
Amounts” shall mean any additional amounts to be paid by the Company in respect of Securities of a series, as may be
specified pursuant to Section 2.03(b) hereof and in such Security and under the circumstances specified therein, in respect
of specified taxes, assessments or other governmental charges imposed on certain holders who are United States Aliens.
“Authorized Newspaper” shall
mean a newspaper (which, in the case of the United Kingdom, will, if practicable, be the Financial Times (London Edition) and, in the
case of Luxembourg, will, if practicable, be the Luxemburger Wort) of general circulation in the place of publication, published in an
official language of the country of publication and customarily published at least once a day for at least five days in each calendar
week. Whenever successive weekly publications in an Authorized Newspaper are authorized or required hereunder, they may be made (unless
otherwise provided herein) on the same or different days of the week and in the same or different Authorized Newspapers. If it shall
be impractical in the opinion of the Trustee to make any publication of any notice required hereby in an Authorized Newspaper, any publication
or other notice in lieu thereof which is made or given with the approval of the Trustee shall constitute a sufficient publication of
such notice.
“Authorized Officer” shall
have the meaning set forth in Section 3.02 hereof.
“Bearer Security” shall mean
any Security established pursuant to Section 2.01 and Section 2.03(b) hereof which is payable to bearer (including without
limitation any Security in temporary or permanent global bearer form) and title to which passes by delivery only, but does not include
any coupons.
“Board of Directors” or “Board”
shall mean the Board of Directors of the Company or any duly authorized committee of such Board.
“Board Resolution” shall mean
a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors
or by a committee acting under authority of or appointment by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
“Business Day” shall mean,
unless otherwise specified pursuant to Section 2.03(b), with respect to any Place of Payment or any other particular location referred
to in this Indenture or in the Securities, a day that in the city (or in any one of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, is not a day on which banking institutions are authorized or required by law or regulation
to be closed.
“Capital Stock” shall mean,
as to shares of a particular corporation, outstanding shares of stock of any class, whether now or hereafter authorized, irrespective
of whether such class shall be limited to a fixed sum or percentage in respect of the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary liquidation, dissolution or winding up of such corporation.
“Clearstream, Luxembourg” shall
mean Clearstream Banking, société anonyme, Luxembourg, or any successor thereof.
“Common Depositary” shall have
the meaning set forth in Section 2.08 hereof.
“Commission” shall mean the
Securities and Exchange Commission or any successor agency.
“Company” shall mean the person
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.
“Company
Request,” “Company Order” and “Company Consent” mean, respectively, a written
request, order or consent signed in the name of the Company by its Chief Executive Officer, President, Chief Financial Officer, Vice
President, General Counsel, Deputy or Associate General Counsel or Treasurer and delivered to the Trustee.
“coupon” shall mean any interest
coupon appertaining to a Bearer Security.
“Default” or “default”
shall have the meaning specified in Article 6.
“Dollar” or “$”
shall mean a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
“Euroclear” shall mean Euroclear
Bank, headquartered in Brussels, or any successor thereof, as the operator of the Euroclear System.
“Euro Security” shall mean
any Bearer Security, any Security initially represented by a Security in temporary global form exchangeable for Bearer Securities and
any Security in permanent global form exchangeable for Bearer Securities.
“Event of Default” shall have
the meaning specified in Article 6.
“Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended.
“Exchange Date” shall have
the meaning set forth in Section 2.08.
“holder,” “holder
of Securities,” “securityholder” or other similar term shall mean (a) in the case of any Registered
Security, the person in whose name such Security is registered in the Security Register kept by the Company for that purpose, in accordance
with the terms hereof, and (b) in the case of any Bearer Security, the bearer thereof, and as used with respect to any coupon appertaining
to any Bearer Security, the term “holder” shall mean the bearer thereof.
“Indenture” shall mean this
instrument as originally executed and delivered or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including without limitation, the forms and terms of particular series
of Securities established as contemplated by Article 2.
“Officers’ Certificate”
shall mean a certificate signed by the Chief Executive Officer, President, Chief Financial Officer, Vice President, General Counsel,
Deputy or Assistant General Counsel or Treasurer of the Company and delivered to the Trustee.
“Opinion of Counsel” shall
mean an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company and who shall be reasonably satisfactory
to the Trustee, or who may be other counsel reasonably satisfactory to the Trustee.
“Original Issue Discount Securities”
shall mean any Securities that are initially sold at a discount from the principal amount thereof and that provide upon an Event of Default
for declaration of an amount less than the principal amount thereof to be due and payable upon acceleration thereof.
“Outstanding” or “outstanding,”
when used with reference to Securities, shall, subject to the provisions of Section 7.08, Section 8.01 and Section 8.04,
mean, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:
(a)
Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b)
Securities, or portions thereof, for the payment or redemption of which moneys 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 and held in trust
by the Company (if the Company shall act as its own paying agent) for the holders of such Securities and any coupons appertaining thereto;
provided , that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption
shall have been given as provided in Article 3, or provision satisfactory to the Trustee shall have been made for giving such notice;
(c)
Securities that have been defeased pursuant to Section 14.02 hereof; and
(d)
Securities that have been paid pursuant to Section 2.09, or Securities in exchange for, in lieu of and in substitution for
which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07, unless proof satisfactory
to the Trustee is presented that any such Securities are held by bona fide holders in due course.
“Periodic Offering” shall mean
an offering of Securities of a series, from time to time, the specific terms of which (including, without limitation, the rate or rates
of interest or formula for determining the rate or rates of interest thereon, if any, the maturity date or dates thereof and the redemption
provisions, if any, with respect thereto) are to be determined by the Company upon the issuance of such Securities.
“Person” or “person”
shall mean any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment,” when used
with respect to the Securities of any series, means the place or places where, subject to the provisions of Section 4.02, the principal
of (and premium, if any, on) and any interest on the Securities of that series are payable as specified as contemplated by Section 2.03(b).
“Possessions,” when used with
respect to the United States, shall include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and Northern
Mariana Islands.
“record date” as used with
respect to any interest payment date shall have the meaning specified in Section 2.05.
“Registered Security” shall
mean any Security established pursuant to Section 2.01 and Section 2.03(b) that is registered on the Security Register
of the Company.
“Responsible Officer,” when
used with respect to the Trustee, shall mean any officer within the Corporate Trust Office of the Trustee (or any successor group of
the Trustee), including any Vice President, Assistant Vice President, Assistant Secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated officers and also shall mean, 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” shall have the
meaning set forth in the preamble of this Indenture.
“Securities Act” shall mean
the Securities Act of 1933, as amended.
“Security Register” and “Security
Registrar” shall have the respective meanings set forth in Section 2.07(a) hereof.
“Subsidiary” shall mean, in
respect of any Person, any corporation, association, partnership, limited liability company or other business entity of which more than
50% of the total voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard
to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by (a) such Person, (b) such Person and one or more Subsidiaries of such Person or (c) one or
more Subsidiaries of such Person.
“Trust Indenture Act,” except
as otherwise provided in this Indenture, shall mean the Trust Indenture Act of 1939, as amended, as in force at the date of this Indenture
as originally executed.
“Trustee” shall mean the person
identified as “Trustee” in the first paragraph hereof until the acceptance of appointment of a successor trustee pursuant
to the provisions of Article 7, and thereafter shall mean such successor trustee.
“United States Alien” shall
mean any person who, for United States federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident
alien fiduciary of a foreign estate or trust, or a foreign partnership to the extent that one or more of its members is, for United States
federal income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate
or trust.
“U.S. Depositary” shall
mean, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more permanent global
Securities, the person designated as U.S. Depositary by the Company pursuant to Section 2.03(b), which must be a clearing agency
registered under the Exchange Act, until a successor U.S. Depositary shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “U.S. Depositary” shall mean or include each person who is then a U.S. Depositary
hereunder, and if at any time there is more than one such person, “U.S. Depositary” as used with respect to the Securities
of any series shall mean the U.S. Depositary with respect to the Securities of such series.
“Vice President” when used
with respect to the Company or the Trustee shall mean any vice president, whether or not designated by a number or word or words added
before or after the title “vice president,” including any Executive or Senior Vice President.
ARTICLE 2
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
SECTION
2.01. Amount Unlimited; Issuable in Series.
Upon
the execution of this Indenture, or from time to time thereafter, Securities up to the aggregate principal amount and containing terms
and conditions from time to time authorized by or pursuant to a Board Resolution, or in an indenture supplemental hereto, as set forth
in Section 2.03, may be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and make available for delivery the Securities to or upon Company Order, without any further action by the Company but subject
to the provisions of Section 2.03, or in an indenture supplemental hereto, as set forth in Section 2.03.
The
Securities may be issued in one or more series. The aggregate principal amount of Securities of all series that may be authenticated
and delivered and outstanding under this Indenture is not limited hereunder. The Securities of a particular series may be issued up to
the aggregate principal amount of Securities for such series from time to time authorized by or pursuant to a Board Resolution.
SECTION
2.02. Form of Trustee’s Certificate of Authentication.
The Trustee’s certificate of authentication
shall be in substantially the following form:
[Form of Trustee’s Certificate of
Authentication]
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated: |
[ |
] |
|
as Trustee |
|
|
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By: |
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Authorized Signatory |
SECTION
2.03. Form of Securities Generally; Establishment of Terms of Series.
The
Registered Securities, if any, of each series, the Bearer Securities, if any, of each series and related coupons, if any, the temporary
global Securities of each series, if any, and the permanent global Securities of each series, if any, shall be in the forms established
from time to time in or pursuant to one or more Board Resolutions (and, to the extent established pursuant to rather than set forth in
one or more Board Resolutions, in an Officers’ Certificate (to which shall be attached true and correct copies of the relevant
Board Resolution(s)) detailing such establishment) or established in an indenture supplemental hereto.
The
Securities may be issued in typewritten, printed or engraved form with such letters, numbers or other marks of identification or designation
(including “CUSIP” numbers, if then generally in use) 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 the Securities may be listed, or to conform to usage. Unless otherwise specified as contemplated hereinafter, Securities in
bearer form shall have interest coupons attached.
(a)
At or prior to the initial issuance of Securities of any series, the particular terms of Securities of such series shall be established
in or pursuant to one or more Board Resolutions (and to the extent established pursuant to rather than set forth in one or more Board
Resolutions, in an Officers’ Certificate (to which shall be attached true and correct copies of the relevant Board Resolutions(s))
detailing such establishment) or established in an indenture supplemental hereto, including the following:
(1)
the designation of the particular series (which shall distinguish such series from all other series);
(2)
the aggregate principal amount of such series which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant
to this Indenture and except for any Securities which, pursuant to Section 2.06, are deemed never to have been authenticated and
delivered hereunder);
(3)
whether Securities of the series are to be issuable as Registered Securities, Bearer Securities (with or without coupons) or both,
whether any Securities of the series are to be issuable initially in temporary global form with or without coupons and, if so, the name
of the Common Depositary with respect to any such temporary global Security, and whether any Securities of the series are to be issuable
in permanent global form with or without coupons and, if so, whether beneficial owners of interests in any such permanent global Security
may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner provided in Section 2.06 and the name of the Common Depositary
or the U.S. Depositary with respect to any such permanent global Security;
(4)
the date as of which any Bearer Securities of such series and any temporary Security in global form representing Outstanding Securities
of such series shall be dated, if other than the date of original issuance of the first Securities of the series to be issued;
(5)
the person to whom any interest on any Registered Security of the series shall be payable, if other than the person in whose name
that Security (or one or more predecessor Securities) is registered at the close of business on the regular record date for such interest,
the manner in which, or the person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they severally mature, the extent to which, or the manner in which,
any interest payable on a temporary global Security on an interest payment date will be paid if other than in the manner provided in
Section 2.08 and the extent to which, or the manner in which, any interest payable on a permanent global Security on an interest
payment date will be paid;
(6)
the date or dates on which the principal of the Securities of such series is payable;
(7)
the rate or rates, and if applicable the method used to determine the rate, at which the Securities of such series shall bear
interest, if any, the date or dates from which such interest shall accrue, the date or dates on which such interest shall be payable
and the record date or dates for the interest payable on any Registered Securities on any interest payment date;
(8)
the place or places at which, subject to the provisions of Section 4.02, the principal of (and premium, if any, on) and any
interest on Securities of such series shall be payable, any Registered Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and notices and demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served;
(9)
the obligation, if any, of the Company to redeem or purchase Securities of such series, at the option of the Company or at the
option of a holder thereof, pursuant to any sinking fund or other redemption provisions and 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 so redeemed or purchased, in whole or in part;
(10)
if other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Registered Securities
of such series shall be issuable, and the denomination or denominations in which any Bearer Securities of the series shall be issuable,
if other than the denomination of $5,000;
(11)
if other than the principal amount thereof, the portion of the principal amount of Securities of such series which shall be payable
upon declaration of acceleration of the maturity thereof;
(12)
the currency, currencies or currency units in which payment of the principal of (and premium, if any, on) and any interest on
any Securities of the series shall be payable if other than the currency of the United States of America and the manner of determining
the equivalent thereof in the currency of the United States of America for purposes of the definition of “Outstanding” in
Section 1.01;
(13)
if the principal of (and premium, if any, on) or any interest on the Securities of the series are to be payable, at the election
of the Company or a holder thereof, in one or more currencies or currency units, other than that or those in which the Securities are
stated to be payable, the currency or currencies in which payment of the principal of (and premium, if any, on) and any interest on Securities
of such series as to which such election is made shall be payable, and the periods within which and the terms and conditions upon which
such election is to be made;
(14)
if the amount of payments of principal of (and premium, if any, on) or any interest on the Securities of the series may be determined
with reference to an index, the manner in which such amounts shall be determined;
(15)
whether the Securities will be issued in book-entry only form;
(16)
any interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such series;
(17)
if either or both of Section 14.02 and Section 14.03 do not apply to the Securities of the series;
(18)
whether and under what circumstances the Company will pay Additional Amounts in respect of any series of Securities and whether
the Company has the option to redeem such Securities rather than pay such Additional Amounts;
(19)
any provisions relating to the extension of maturity of, or the renewal of, Securities of such series, or the conversion of Securities
of such series into other securities of the Company;
(20)
any provisions relating to the purchase or redemption of all or any portion of a tranche or series of Securities, including the
period of notice required to redeem those Securities;
(21)
the terms and conditions, if any, pursuant to which the Securities of the series are secured;
(22)
the subordination terms of the Securities of the series; and
(23)
any other terms of the Securities or provisions relating to the payment of principal of, premium (if any), or interest thereon,
including, but not limited to, whether such Securities are issuable at a discount or premium, as amortizable Securities, and if payable
in, convertible or exchangeable for commodities or for the securities of the Company or any third party.
All Securities of any one series need not be issued
at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the
Board Resolution or Officers’ Certificate referred to above or as set forth in an indenture supplemental hereto, and, unless otherwise
provided, the authorized principal amount of any series may be increased to provide for issuances of additional Securities of such series.
If so provided by or pursuant to the Board Resolution or Officers’ Certificate or supplemental indenture referred to above, the
terms of such Securities to be issued from time to time may be determined as set forth in such Board Resolution, Officers’ Certificate
or supplemental indenture, as the case may be. All Securities of any one series shall be substantially identical except as to denomination,
interest rate, maturity and other similar terms and except as may be provided otherwise by or pursuant to such Board Resolution, Officers’
Certificate or supplemental indenture.
SECTION
2.04. Securities in Global Form.
If
Securities of a series are issuable in global form, as specified as contemplated by Section 2.03(b), then, notwithstanding clause (10) of
Section 2.03(b) and the provisions of Section 2.05, any such Security in global form shall represent such of the Securities
of such series Outstanding as shall be specified therein, and any such Security in global form may provide that it shall represent
the aggregate amount of Securities Outstanding from time to time endorsed thereon and that the aggregate amount of Securities Outstanding
represented thereby may from time to time be reduced to reflect any exchanges of beneficial interests in such Security in global form
for Securities of such series as contemplated herein. Any endorsement of a Security in global form to reflect the amount, or any decrease
in the amount, of Securities Outstanding represented thereby shall be made by the Trustee or the Security Registrar in such manner and
upon instructions given by such person or persons as shall be specified in such Security in global form or in the Company Order to be
delivered to the Trustee pursuant to Section 2.06 or Section 2.08. Subject to the provisions of Section 2.06 and, if applicable,
Section 2.08, the Trustee or the Security Registrar shall deliver and redeliver any Security in permanent global form in the manner
and upon instructions given by the person or persons specified in such Security in global form or in the applicable Company Order. If
a Company Order pursuant to Section 2.06 or Section 2.08 has been, or simultaneously is, delivered, any instructions by the
Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not be represented
by a Company Order and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 2.06
shall apply to any Security represented by a Security in global form if such Security was never issued and sold by the Company and the
Company delivers to the Trustee or the Security Registrar the Security in global form together with written instructions (which need
not be represented by a Company Order and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal
amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 2.06.
Notwithstanding the provisions of Section 2.05,
unless otherwise specified as contemplated by Section 2.03(b), payment of principal of and any premium and interest on any Security
in permanent global form shall be made to the persons or persons specified therein.
SECTION
2.05. Denominations; Record Date; Payment of Interest.
(a)
Unless otherwise provided as contemplated by Section 2.03(b) with respect to any series of Securities, any Registered
Securities of a series shall be issuable without coupons in denominations of $1,000 and any Bearer Securities of a series shall be issuable,
with interest coupons attached, in the denomination of $5,000.
(b)
The term “record date” as used with respect to an interest payment date for any series of a Registered Security shall
mean such day or days as shall be specified as contemplated by Section 2.03(b); provided , however , that in
the absence of any such provisions with respect to any series, such term shall mean (1) the last day of the calendar month next
preceding such interest payment date if such interest payment date is the 15th day of a calendar month; or (2) the 15th day
of a calendar month next preceding such interest payment date if such interest payment date is the first day of the calendar month.
Unless otherwise provided as contemplated by Section 2.03(b) with
respect to any series of Securities, the person in whose name any Registered Security is registered at the close of business on the record
date with respect to an interest payment date shall be entitled to receive the interest payable on such interest payment date notwithstanding
the cancellation of such Security upon any registration of transfer or exchange thereof subsequent to such record date prior to such
interest payment date; provided, however, that if and to the extent the Company shall default in the payment of the interest
due on such interest payment date, such defaulted interest shall be paid to the persons in whose names the Securities are registered
on a subsequent record date established by notice given to the extent and in the manner set forth in Section 15.04 by or on behalf
of the Company to the holders of Securities of the series in default not less than 15 days preceding such subsequent record date,
such record date to be not less than five days preceding the date of payment of such defaulted interest, or in any other lawful
manner acceptable to the Trustee.
(c)
Unless otherwise specified by Board Resolution or Company Order for a particular series of Securities, the principal of, redemption
premium, if any, on and interest, if any, on the Securities of any series shall be payable at the office or agency of the Company maintained
pursuant to Section 4.02 in a Place of Payment for such series, in the coin or currency of the United States of America that at
the time is legal tender for public and private debt; provided , however , that, at the option of the Company, payment
of interest with respect to a Registered Security may be paid by check mailed to the holders of the Registered Securities entitled thereto
at their last addresses as they appear on the Security Register or wired if held in book-entry form at the U.S. Depositary.
SECTION
2.06. Execution, Authentication, Delivery and Dating of Securities
The Securities shall be signed on behalf of the
Company by its Chief Executive Officer, its President or one of its Vice Presidents under its corporate seal and attested by its Secretary
or one of its Assistant Secretaries. Such signatures may be the manual or facsimile signatures of such then current officers.
The seal of the Company may be in the form of
a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. Coupons shall bear the facsimile
signature of the Secretary or one of the Assistant Secretaries of the Company or such other officer of the Company as may be specified
pursuant to Section 2.03(b). Any Security or coupon may be signed on behalf of the Company by such persons as, at the actual date
of the execution of such Security, shall be the proper officers of the Company, although at the date of the execution of this Indenture
any such person was not such officer. Securities and coupons bearing the manual or facsimile signatures of individuals who were, at the
actual date of the execution of such Security or coupon, the proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities, or the
delivery of such coupons, as the case may be, or did not hold such offices at the date of such Securities.
Upon the execution and delivery of this Indenture,
the Company shall deliver to the Trustee an Officers’ Certificate as to the incumbency and specimen signatures of officers authorized
to execute and deliver the Securities and coupons and give instructions under this Section and, as long as Securities are Outstanding
under this Indenture, shall deliver a similar Officers’ Certificate each year on the anniversary of the date of the first such
Officers’ Certificate. The Trustee may conclusively rely on the documents delivered pursuant to this Section (unless revoked
by superseding comparable documents) and Section 2.03 hereof as to the authorization of the Board of Directors of any Securities
delivered hereunder, and the form and terms thereof, and as to the authority of the instructing officers referred to in this Section so
to act.
The Trustee shall at any time, and from time to
time, authenticate Securities for original issue in an unlimited aggregate principal amount upon receipt by the Trustee of a Company
Order; provided , however , that with respect to Securities of a series subject to a Periodic Offering, (a) such Company
Order may be delivered to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the
Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount
not exceeding the aggregate principal amount, if any, established for such series, pursuant to a Company Order or pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by a Company Order, (c) the maturity date or dates, original issue
date or dates, interest rate or rates and any other terms of Securities of such series shall be determined by Company Order or pursuant
to such procedures, and (d) if provided for in such procedures, such Company Order may authorize authentication and delivery pursuant
to oral or electronic instructions from the Company or its duly authorized agent or agents, which oral instructions shall be promptly
confirmed in writing; and provided further, however, that definitive Euro Securities may only be delivered at an office or agency outside
the United States and its possessions in exchange for a portion of a Euro Security in temporary global form of equal aggregate principal
amount and series and only if (x) prior to such delivery, the owner of such Euro Security or a financial institution or clearing
organization through which the owner holds such Euro Security, directly or indirectly, shall have furnished a certificate in the form
set forth in Exhibit A.1 to this Indenture, dated no earlier than 15 days prior to the date on which Euroclear or Clearstream,
Luxembourg, as the case may be, furnishes to the Common Depositary, in accordance with the procedures established in Section 2.08,
a certificate in the form set forth in Exhibit A.2 to this Indenture that relates to all or such portion of such temporary global
Security, and (y) the person to whom such certificate is provided does not know or have reason to know that the information contained
in such certificate is false. If any Euro Security initially represented by a portion of a temporary global Security is exchanged for
a portion of a permanent global Security in equal aggregate principal amount and series, then, for purposes of this Section and
Section 2.08, the notation of a beneficial owner’s interest therein upon exchange shall be deemed to be delivery of definitive
Euro Securities representing such beneficial owner’s interest. Except as permitted by Section 2.09, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured have been detached and cancelled.
Prior to the issuance of a Security of any new
series and any related coupons, and the authentication thereof by the Trustee, the Trustee shall have received and (subject to Section 7.02)
shall be fully protected in relying on:
(a)
The Board Resolution or Officers’ Certificate or indenture supplemental hereto establishing the terms and the form of the
Securities of that series pursuant to Section 2.01 and Section 2.03;
(b)
An Officers’ Certificate stating that all conditions precedent provided for in this Indenture relating to the authentication
and delivery of Securities in such form have been complied with;
(c)
An Opinion of Counsel stating that the form and terms of such Securities and coupons, if any, have been established in conformity
with the provisions of this Indenture; provided , however , that with respect to Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to receive such Opinion of Counsel only once at or prior to the time of the first authentication
of Securities of such series.
With respect to Securities of a series offered
in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any of such Securities, the form and terms thereof
and of any coupons and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and other documents
delivered pursuant to this Section in connection with the first authentication of Securities of such series unless and until such
Opinion of Counsel or other documents have been superseded or revoked. In connection with the authentication and delivery of Securities
of a series subject to a Periodic Offering, the Trustee shall be entitled to assume that the Company’s instructions to authenticate
and deliver such Securities do not violate any rules, regulations or orders of any governmental agency or commission having jurisdiction
over the Company.
Each Registered Security shall be dated the date
of its authentication except as otherwise provided by Board Resolution or Officers’ Certificate or indenture supplemental hereto;
and each Bearer Security shall be dated as of the date of original issuance of the first Security of such series to be issued unless
otherwise specified pursuant to Section 2.03(b) hereof.
The aggregate principal amount of Securities of
any series outstanding at any time may not exceed any limit upon the maximum principal amount for such series set forth in or pursuant
to the Board Resolution or Officers’ Certificate or indenture supplemental hereto delivered pursuant to Section 2.03, except
as provided in Section 2.08.
No Security or coupon shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security, or the Security to which
such coupon appertains, a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in
Section 2.09 together with a written statement stating that such Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
SECTION
2.07. Exchange and Registration of Transfer of Securities.
(a)
The Company shall keep, at an office or agency to be designated and maintained by the Company in accordance with Section 4.02
(as such, a “Security Registrar”), registry books (the “Security Register”) in which, subject to
such reasonable regulations as it may prescribe, the Company shall register Registered Securities and shall register the transfer of
Registered Securities of each such series as provided in this Article 2. Such Security Register shall be in written form or in any
other form capable of being converted into written form within a reasonable time. At all reasonable times such Security Register shall
be open for inspection by the Trustee. Upon due presentment for registration of transfer of any Registered Security of a particular series
at such office or agency maintained pursuant to Section 4.02 for such purpose in a Place of Payment, the Company shall execute and
register and the Trustee shall authenticate and make available for delivery in the name of the transferee or transferees a new Registered
Security or Registered Securities of such series of any authorized denominations and for an equal aggregate principal amount and tenor.
(b)
At the option of the holder, Registered Securities of any series may be exchanged for other Registered Securities of the same
series of any authorized denominations and of an equal aggregate principal amount and tenor. Registered Securities to be exchanged shall
be surrendered at any such office or agency maintained pursuant to Section 4.02 for such purpose in a Place of Payment, and the
Company shall execute and register and the Trustee shall authenticate and make available for delivery in exchange therefor the Security
or Securities that the securityholder making the exchange shall be entitled to receive. Registered Securities, including Registered Securities
received in exchange for Bearer Securities, may not be exchanged for Bearer Securities, unless the Company otherwise expressly provides
for the issuance, upon such terms and conditions as may be provided with respect to such series, by the Company of Registered Securities
of a series that may be exchanged, at the option of the securityholder upon such conditions and limitations as may be specified by the
Company, for Bearer Securities of such series.
At the option of the holder, Bearer Securities
of any series may be exchanged for Registered Securities of the same series of any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons (except
as provided below) and with all matured coupons in default appertaining thereto. If the holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected if the Bearer Securities
are accompanied by payment in funds acceptable to the Company in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there is furnished to them such security
or indemnity as they may require to save each of them and any paying agent harmless. If thereafter the holder of such Securities shall
surrender to any paying agent any such missing coupon in respect of which such a payment shall have been made, such holder shall be entitled
to receive the amount of such payment; provided , however , that, except as otherwise provided in Section 4.02, interest
represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside
the United States and its possessions. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and like tenor after the close of business at such office or
agency on (i) any record date and before the opening of business at such office or agency on the relevant interest payment date,
or (ii) any special record date and before the opening of business at such office or agency on the related proposed date for payment
of defaulted interest as set forth in Section 2.05, such Bearer Security shall be surrendered without the coupon relating to such
interest payment date or proposed date for payment, as the case may be, and interest or defaulted interest, as the case may be, will
not be payable on such interest payment date or proposed date for payment, as the case may be, in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the holder of such coupon when due in accordance with the provisions
of this Indenture.
Whenever any Securities are so surrendered for
exchange, the Company shall execute and register, and the Trustee shall authenticate and make available for delivery, the Securities
which the holder making the exchange is entitled to receive.
(c)
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration
of transfer or exchange.
All Registered Securities presented for registration
of transfer or for exchange, redemption or payment, as the case may be, shall (if so required by the Company or the Trustee) be duly
endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Trustee
or the Security Registrar duly executed by, the holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any exchange
or registration of transfer of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith, other than exchanges pursuant to the terms of this Indenture not involving any transfer.
The Company shall not be required (1) to
issue, to exchange or register the transfer of Securities of any series to be redeemed for a period of 15 days next preceding any
selection of such Securities to be redeemed, or (2) to exchange or register the transfer of any Registered Security so selected,
called or being called for redemption, except in the case of any such series to be redeemed in part the portion thereof not to be so
redeemed, or (3) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged
for a Registered Security of that series and of like tenor, provided that such Registered Security shall be simultaneously surrendered
for redemption.
(d)
Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 2.03(b), any permanent global Security
shall be exchangeable pursuant to this Section only as provided in this paragraph. If the beneficial owners of interests in a permanent
global Security are entitled to exchange such interests for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 2.03(b), then without unnecessary delay but in any event
not later than the earliest date on which such interests may be so exchanged, the Company shall deliver to the Trustee or the Security
Registrar definitive Securities of that series in aggregate principal amount equal to the principal amount of such permanent global Security
executed by the Company. On or after the earliest date on which such interests may be so exchanged, in accordance with instructions given
by the Company to the Trustee or the Security Registrar and the Common Depositary or the U.S. Depositary, as the case may be (which
instructions shall be in writing), such permanent global Security shall be surrendered from time to time by the Common Depositary or
the U.S. Depositary, as the case may be, or such other depositary or Common Depositary or U.S. Depositary, as the case may
be, as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for such purpose, or
to the Security Registrar, to be exchanged, in whole or in part, for definitive Securities of the same series without charge and the
Trustee shall authenticate and make available for delivery in accordance with such instructions, in exchange for each portion of such
permanent global Security, a like aggregate principal amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such permanent global Security to be exchanged which (unless the Securities of the series are not
issuable both as Bearer Securities and as Registered Securities, in which case the definitive Securities exchanged for the permanent
global Security shall be issuable only in the form in which the Securities are issuable, as specified as contemplated by Section 2.03(b)),
shall be in the form of Bearer Securities or Registered Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof; provided, however, that no such exchanges may occur for a period of 15 days next preceding any selection
of Securities of that series and of like tenor for redemption; and provided, further, that no Bearer Security delivered
in exchange for a portion of a permanent global security shall be mailed or otherwise delivered to any location in the United States
or its possessions. Promptly following any such exchange in part, such permanent global Security should be returned by the Trustee or
the Security Registrar to the Common Depositary or the U.S. Depositary, as the case may be, or such other depositary or Common Depositary
or U.S. Depositary referred to above in accordance with the instructions of the Company referred to above. If a Registered Security
is issued in exchange for any portion of a permanent global Security after the close of business at the office or agency where such exchange
occurs on (i) any record date and before the opening of business at such office or agency on the relevant interest payment date,
or (ii) any special record date and before the opening of business at such office or agency on the related proposed date for payment
of defaulted interest as provided in Section 2.05, interest or defaulted interest, as the case may be, will not be payable on such
interest payment date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on
such interest payment date or proposed date for payment, as the case may be, only to the person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the provisions of this Indenture.
SECTION
2.08. Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute and the Trustee shall, upon Company Order, authenticate and make available for delivery, temporary
Securities of such series (typewritten, printed, lithographed or otherwise produced). Such temporary Securities, in any authorized denominations,
shall be substantially in the form of the definitive Securities in lieu of which they are issued, in registered form or, if authorized,
in bearer form with one or more or without coupons, in the form approved from time to time by or pursuant to a Board Resolution but with
such omissions, insertions, substitutions and other variations as may be appropriate for temporary Securities, all as may be determined
by the Company, but not inconsistent with the terms of this Indenture or any provision of applicable law. In the case of any series issuable
as Bearer Securities, such temporary Securities shall be delivered only in compliance with the conditions set forth in Section 2.06
and may be in global form.
Except in the case of temporary Securities in
global form (which shall be exchanged as hereinafter provided), if temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company maintained pursuant to Section 4.02 in a Place of Payment
for such series for the purpose of exchanges of Securities of such series, without charge to the holder. Upon surrender for cancellation
of any one or more temporary Securities of any series (accompanied by any unmatured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and make available for delivery in exchange therefor a like aggregate principal amount of
definitive Securities of the same series and of like tenor of authorized denominations; provided, however, that, except
as otherwise expressly provided by the Company as contemplated in Section 2.07(b), no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and provided further, however, that a definitive Bearer Security shall
be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 2.06.
All Euro Securities shall be issued initially
in the form of a temporary global Security and any such temporary global Security shall, unless otherwise provided therein, be delivered
to the London office of a depositary or common depositary (the “Common Depositary”), for the benefits of Euroclear
and Clearstream, Luxembourg, for credit to the respective accounts for the beneficial owners of such Securities (or to such other accounts
as they may direct).
Without unnecessary delay but in any event not
later than the date specified in, or determined pursuant to the terms of, any such temporary global Security of a series (the “Exchange
Date”), the Company shall deliver to the Trustee definitive Securities of that series, in aggregate principal amount equal
to the principal amount of such temporary global Security, executed by the Company. On or after the Exchange Date such temporary global
Security shall be presented and surrendered by the Common Depositary to the Trustee, as the Company’s agent for such purpose, or
to the Security Registrar, to be exchanged, in whole or from time to time in part, for definitive Securities of such series without charge,
and the Trustee shall authenticate and make available for delivery, in exchange for each portion of such temporary global Security, a
like aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion
of such temporary global Security to be exchanged; provided, however, that, unless otherwise specified in such temporary
global Security, upon such presentation by the Common Depositary, such temporary global Security must be accompanied by a certificate
dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream, Luxembourg as
to the portion of such temporary global Security held for its account then to be exchanged, each in the form set forth in Exhibit A.2
to this Indenture. The definitive Securities to be delivered in exchange for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global registered form, or any combination thereof, as specified as contemplated
by Section 2.03(b), and, if any combination thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that definitive Securities shall be delivered in exchange for a portion of a temporary global Security only in compliance
with the requirements of Section 2.06.
Unless otherwise specified in such temporary global
Security, the interest of a beneficial owner of Securities of a series in a temporary global Security shall be exchanged for definitive
Securities of the same series and of like tenor upon the receipt by Euroclear or Clearstream, Luxembourg, as the case may be, after the
Exchange Date of a certificate in the form set forth in Exhibit A.1 to this Indenture (whether or not such certificate is delivered
in connection with the payment of interest, as hereinafter provided) signed by the owner of the Security or a financial institution or
clearing organization through which the owner directly or indirectly holds such Security, and dated no earlier than 15 days prior
to the date on which Euroclear or Clearstream, Luxembourg, as the case may be, furnishes to the Common Depositary in accordance with
the preceding paragraph a certificate in the form set forth in Exhibit A.2 to this Indenture that relates to the interest to be
exchanged for definitive Securities. Copies of the certificate in the form set forth in Exhibit A.1 to this Indenture shall be available
from the offices of Euroclear and Clearstream, Luxembourg, the Trustee, any authenticating agent appointed for such series of Securities
and each paying agent. Unless otherwise specified in such temporary global Security, any such exchange shall be made free of charge to
the beneficial owners of such temporary global Security, except that a person receiving definitive Securities must bear the cost of insurance,
postage, transportation and the like in the event that such person does not take delivery of such definitive Securities in person at
the offices of Euroclear or Clearstream, Luxembourg. Definitive Securities to be delivered in exchange for any portion of a temporary
global Security shall be delivered only outside the United States and its possessions.
Until exchanged in full as hereinabove provided,
the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities
of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by
Section 2.03(b), interest payable on a temporary global Security on any interest payment date for Securities of such series occurring
prior to the exchange of such temporary global Security shall be payable to Euroclear and Clearstream, Luxembourg on such interest payment
date upon delivery by Euroclear and Clearstream, Luxembourg to the Trustee or the applicable paying agent of a certificate or certificates
in the form set forth in Exhibit A.3 to this Indenture, for credit without further interest on or after such interest payment date
to the respective accounts of the persons for whom Euroclear or Clearstream, Luxembourg, as the case may be, holds such temporary global
Security on such interest payment date and who have each delivered to Euroclear or Clearstream, Luxembourg, as the case may be, a certificate
in the form set forth in Exhibit A.1 to this Indenture. If such interest payment date occurs on or after the Exchange Date, Euroclear
or Clearstream, Luxembourg, as the case may be, following the receipt of such certificate shall exchange, in accordance with the procedures
hereinabove provided, the portion of the temporary global Security that relates to such certificate for definitive Securities (which,
in the absence of instructions to the contrary, shall be an interest in a permanent global Security). Any interest so received by Euroclear
and Clearstream, Luxembourg and not paid as herein provided shall be returned to the Trustee or the applicable paying agent immediately
prior to the expiration of two years after such interest payment date in order to be repaid to the Company in accordance with Section 12.04.
The terms and form of the certificates to be delivered hereunder, and procedures established with respect thereto, are intended to ensure
that (i) interest payable by the Company on Securities of a series issuable in bearer form is deductible by the Company under Section 163(f) of
the Internal Revenue Code of 1986, as may be amended from time to time, or any successor provision and (ii) the Company meets the
requirements, if any, established by Euroclear or Clearstream, Luxembourg from time to time, and any such certificates or the procedures
with respect thereto may be amended or modified by the Company upon delivery of a Company Order to the Trustee accompanied by an Opinion
of Counsel to the effect that the proposed modification or amendment will effect continued compliance by the Company with provisions
of such Code or Euroclear or Clearstream, Luxembourg, as the case may be.
Every temporary Security 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.
SECTION
2.09. Mutilated, Destroyed, Lost or Stolen Securities and Coupons
If any mutilated Security or a Security with a
mutilated coupon appertaining thereto is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and
make available for delivery in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and
the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security or coupon and (ii) such security
or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Company shall, subject to
the following paragraph, execute and the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost
or stolen Security or in exchange for the Security to which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons
not destroyed, lost or stolen), a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or
stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security or coupon; provided, however , that principal of (and premium, if any, on) and any interest on Bearer
Securities shall, except as otherwise provided in Section 4.02, be payable only at an office or agency located outside the United
States and its possessions.
Upon the issuance of any new Security under this
Section, the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with any coupons
appertaining thereto, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security or in exchange for a Security
to which a destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and any coupons appertaining thereto, or the destroyed, lost or stolen coupon shall
be at any time enforceable by anyone, and any such new Security and coupons, if any, shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons.
SECTION
2.10. Cancellation.
All Securities surrendered for payment, redemption,
exchange or registration of transfer or for credit against any sinking fund payment, as the case may be, and any coupons surrendered
for payment, shall, if surrendered to the Company or any agent of the Company or of the Trustee, be delivered to the Trustee. All Registered
Securities and matured coupons so delivered shall be promptly cancelled by the Trustee. All Bearer Securities and unmatured coupons so
delivered shall be held by the Trustee, and upon instruction by a Company Order, shall be cancelled or held for reissuance. All Bearer
Securities and unmatured coupons held by the Trustee pending such cancellation or reissuance shall be deemed to be delivered for cancellation
for all purposes of this Indenture and the Securities. The Company may deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this Section except as expressly provided by this Indenture.
Any cancelled Securities and coupons held by the Trustee shall be delivered to the Company or disposed of as directed by the Company;
provided, however, that the Trustee may, but shall not be required to, destroy such Securities.
SECTION
2.11. Book Entry Only System.
If specified by the Company pursuant to Section 2.03(b) with
respect to Securities represented by a Security in global form, a series of Securities may be issued initially in book-entry only form
and, if issued in such form, shall be represented by one or more Securities in global form registered in the name of the U.S. or
Common Depositary or other depositary designated with respect thereto. So long as such system of registration is in effect, (a) Securities
of such series so issued in book-entry only form will not be issuable in the form of or exchangeable for Securities in certificated or
definitive registered form, (b) the records of the U.S. or Common Depositary or such other depositary will be determinative
for all purposes and (c) neither the Company, the Trustee nor any paying agent, Security Registrar or transfer agent for such Securities
will have any responsibility or liability for (i) any aspect of the records relating to or payments made on account of owners of
beneficial interests in the Securities of such series, (ii) maintaining, supervising or reviewing any records relating to such beneficial
interests, (iii) receipt of notices, voting and requesting or directing the Trustee to take, or not to take, or consenting to, certain
actions hereunder, or (iv) the records and procedures of the U.S. or Common Depositary, or such other depositary, as the case
may be.
ARTICLE 3
REDEMPTION OF SECURITIES
SECTION
3.01. Redemption of Securities, Applicability of Section.
Redemption of Securities of any series as permitted
or required by the terms thereof shall be made in accordance with the terms of such Securities as specified pursuant to Section 2.03(b) hereof
and this Article; provided, however , that if any provision of any series of Securities shall conflict with any provision of this
Section, the provision of such series of Securities shall govern.
SECTION
3.02. Notice of Redemption, Selection of Securities.
In case the Company shall desire to exercise the
right to redeem all or, as the case may be, any part of a series of Securities pursuant to Section 3.01, it shall fix a date for
redemption. Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company, or, at the
Company’s request, by the Trustee in the name and at the expense of the Company. The Company or the Trustee, as the case may be,
shall give notice of such redemption, in the manner and to the extent set forth in Section 15.04, on that date prior to the date
fixed for a redemption to the holders of such Securities so to be redeemed, as a whole or in part, (a) as set forth in Board Resolutions,
as described in Section 2.03(b), or (b) as determined by the Chief Executive Officer, the Chief Financial Officer, any Senior
or other Vice President or the Treasurer of the Company (each, an “Authorized Officer”) and evidenced by the preparation
of an offering document or an Officer’s Certificate specifying the period of notice of such redemption. If the Board Resolutions
or an Authorized Officer do not specify a period of notice of such redemption, the Company or the Trustee, as the case may be, shall
give notice of such redemption, in the manner and to the extent set forth in Section 15.04, at least 10 Business Days and not more
than 60 calendar days prior to the date fixed for a redemption to the holders of such Securities so to be redeemed as a whole
or in part. Notice given in such manner shall be conclusively presumed to have been duly given, whether or not the holder receives such
notice. In any case, failure to give such notice or any defect in the notice to the holder of any such Security designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the redemption of any other such Security. If the Company
requests the Trustee to give any notice of redemption, it shall make such request at least ten days prior to the designated date
for delivering such notice, unless a shorter period is satisfactory to the Trustee.
Each such notice of redemption shall specify the
date fixed for redemption, the redemption price at which such Securities are to be redeemed, the CUSIP numbers of such Securities, the
Place of Payment where such Securities, together, in the case of Bearer Securities, with all coupons appertaining thereto, if any, maturing
after the date of redemption, are to be surrendered for payment of the redemption prices, that payment will be made upon presentation
and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as specified in the notice, and
that on and after the date interest thereon or on the portions thereof to be redeemed will cease to accrue. If less than all of a series
is to be redeemed, the notice of redemption shall specify the numbers of the Securities to be redeemed. In case any Security is to be
redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state
that, upon surrender of such Security, a new Security or Securities of the same series in principal amount equal to the unredeemed portion
thereof will be issued.
On or before the redemption date specified in
the notice of redemption given as provided in this Section, the Company will deposit in trust with the Trustee or with one or more paying
agents an amount of money sufficient to redeem on the redemption date all the Securities or portions of Securities so called for redemption
at the appropriate redemption price, together with accrued interest, if any, to the date fixed for redemption. If less than all of a
series of Securities is to be redeemed, the Company will give the Trustee adequate written notice at least 45 days in advance (unless
a shorter notice shall be satisfactory to the Trustee) as to the aggregate principal amount of Securities to be redeemed.
If less than all the Securities of a series are
to be redeemed, the Trustee shall select, pro rata or by lot or in such other manner is it shall deem appropriate and fair, not more
than 60 days prior to the date of redemption, the numbers of such Securities Outstanding not previously called for redemption, to
be redeemed in whole or in part. The portion of principal of Securities so selected for partial redemption shall be equal to the minimum
authorized denomination for Securities of that series or any integral multiple thereof. The Trustee shall promptly notify the Company
of the Securities to be redeemed. If, however, less than all the Securities of a series having differing issue dates, interest rates
and stated maturities are to be redeemed, the Company in its sole discretion shall select the particular Securities of such series to
be redeemed and shall notify the Trustee in writing at least 45 days prior to the relevant redemption date.
SECTION
3.03. Payment of Securities Called for Redemption.
If notice of redemption has been given as above
provided, the Securities or portions of Securities with respect to which such notice has been given shall become due and payable on the
date and at the place stated in such notice at the applicable redemption price, together with any interest accrued to the date fixed
for redemption, and on and after that date (unless the Company shall default in the payment of such Securities at the redemption price,
together with interest accrued to that date) interest on such Securities or portions of Securities so called for redemption shall cease
to accrue and the coupons, if any, for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided
below, shall be void. On presentation and surrender of such Securities subject to redemption at the Place of Payment and in the manner
specified in such notice, together with all coupons, if any, appertaining thereto and maturing after the date specified in such notice
for redemption, such Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable redemption
price, together with interest accrued thereon to the date fixed for redemption; provided, however, that installments of
interest on Bearer Securities whose stated maturity date is on or prior to the date of redemption shall be payable only at an office
or agency located outside the United States and its possessions (except as otherwise provided in Section 4.02) and, unless otherwise
specified as contemplated by Section 2.03(b), only upon presentation and surrender of coupons for such interest; and provided,
further, that unless otherwise specified as contemplated by Section 2.03(b), installments of interest on Registered Securities
whose stated maturity date is on or prior to the date of redemption shall be payable to the holders of such Registered Securities, or
one or more predecessor Securities, registered as such at the close of business on the relevant record dates according to their terms
and the provisions of Section 2.05.
At the option of the Company, payment with respect
to Registered Securities may be made by check to the holders of such Securities or other persons entitled thereto against presentation
and surrender of such Securities.
If any Bearer Security surrendered for redemption
shall not be accompanied by all appurtenant coupons maturing after the date of redemption, such Security may be paid after deducting
from the redemption price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they may require to
save each of them and any paying agent harmless. If thereafter the holder of such Security shall surrender to the Trustee or any paying
agent any such missing coupon in respect of which a deduction shall have been made from the redemption price, such holder shall be entitled
to receive the amount so deducted; provided, however , that interest represented by coupons shall be payable only at an
office or agency located outside the United States and its possessions (except as otherwise provided in Section 4.02) and, unless
otherwise specified as contemplated by Section 2.03(b), only upon presentation and surrender of those coupons.
Any Security (including any coupons appertaining
thereto) that is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed
by, the holder thereof or such holder’s attorney duly authorized in writing), and upon such presentation, the Company shall execute
and the Trustee shall authenticate and make available for delivery to the holder thereof, at the expense of the Company, a new Security
or Securities of the same series, of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the principal
of the Security so presented. If a temporary global Security or permanent global Security is so surrendered, such new Security so issued
shall be a new temporary global Security or permanent global Security, respectively.
SECTION
3.04. Redemption Suspended During Event of Default.
The Trustee shall not redeem any Securities (unless
all Securities then outstanding are to be redeemed) or commence the giving of any notice of redemption of Securities during the continuance
of any Event of Default of which a Responsible Officer of the Trustee has actual knowledge or notice, except that where the giving of
notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem such Securities, provided funds are
deposited with it for such purpose. Except as aforesaid, any moneys theretofore or thereafter received by the Trustee shall, during the
continuance of such Event of Default, be held in trust for the benefit of the securityholders and applied in the manner set forth in
Section 6.06; provided, however, that in case such Event of Default shall have been waived as provided herein or otherwise
cured, such moneys shall thereafter be held and applied in accordance with the provisions of this Article.
ARTICLE 4
PARTICULAR COVENANTS OF THE COMPANY
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, on) and any interest on each of the Securities of a series at the place, at the respective
times and in the manner provided in the terms of the Securities, any coupons appertaining thereto and this Indenture. Unless otherwise
specified as contemplated by Section 2.03(b) with respect to any series of Securities, any interest due on and any Additional
Amounts payable in respect of Bearer Securities on or before maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they severally mature.
SECTION
4.02. Offices for Notices and Payments, etc.
If Securities of a series are issuable only as
Registered Securities, the Company will maintain in each Place of Payment for such series an office or agency where Securities of that
series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the Company will maintain (a) in the City of Williamsport, Commonwealth
of Pennsylvania (or in such other place or places in the United States as the Company may designate from time to time by Company Order
delivered to the Trustee), an office or agency where any Registered Securities of that series may be presented or surrendered for payment,
where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange, where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture
may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for payment in the circumstances
described below (and not otherwise), (b) subject to any laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States and its possessions, an office or agency where Securities of that series and related coupons
may be presented and surrendered for payment; provided, however, that if the Securities of that series are listed on The
International Stock Exchange of the United Kingdom and the Republic of Ireland, Limited, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and its possessions and such stock exchange shall so require, the Company will maintain a
paying agent for the Securities of that series in London, Luxembourg or any other required city located outside the United States and
its possessions, as the case may be, so long as the Securities of that series are listed on such exchange, and (c) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series which is located outside the United States and its possessions,
an office or agency where any Registered Securities of that series may be surrendered for registration of transfer, where Securities
of that series may be surrendered for exchange and where notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served.
The Company will give to the Trustee notice of
the location of each such office or agency and of any change in the location thereof. In case the Company shall fail to maintain any
such office or agency as required, or shall fail to give such notice of the location or of any change in the location thereof, presentations
and surrenders of Securities of that series may be made and notices and demands may be served at the principal corporate trust office
of the Trustee, except that Bearer Securities of that series and the related coupons may be presented and surrendered for payment at
any paying agent for such series located outside the United States and its possessions or, if none have been so appointed, then at the
London office of the Trustee, and the Company hereby appoints the same as its agent to receive such respective presentations, surrenders,
notices and demands.
No payment of principal, premium or interest on
Bearer Securities shall be made at any office or agency of the Company in the United States or its possessions or by check mailed to
any address in the United States or its possessions or by transfer to any account maintained with a financial institution located in
the United States or its possessions; provided, however, that, if the Securities of a series are denominated and payable
in Dollars, payment of principal of (and premium, if any) and any interest on any Bearer Security shall be made at the office of the
Company’s paying agent in the City of Williamsport, Commonwealth of Pennsylvania (or in such other place or places in the United
States as the Company may designate from time to time by Company Order delivered to the Trustee), if (but only if) payment in Dollars
of the full amount of such principal, premium, interest or Additional Amounts, as the case may be, at all offices or agencies outside
the United States and its possessions maintained for the purpose by the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate
one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office or agency in accordance with the requirements set forth
above for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee and the holders of any
such designation or rescission and of any change in the location of any such other office or agency.
The Company hereby initially designates the principal
corporate trust office of [___________________________] as the office of the Company in the City of Williamsport, Commonwealth of Pennsylvania
where Registered Securities may be presented for payment, for registration of transfer and for exchange as in this Indenture provided
and where notices and demands to or upon the Company in respect of the Securities or of this Indenture may be served.
SECTION
4.03. Provisions as to Paying Agent.
(a)
Whenever the Company shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will
cause 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 sums held by it as such agent for the payment of the principal of (and premium, if any, on) or any interest
on the Securities of such series (whether such sums have been paid to it by the Company or by any other obligor on the Securities of
such series) in trust for the benefit of the persons entitled thereto until such sums shall be paid to such persons or otherwise disposed
of as herein provided and will notify the Trustee of the receipt of sums to be so held;
(2)
that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities of such series)
to make any payment of the principal of (or premium, if any, on) or any interest on the Securities of such series when the same shall
be due and payable; and
(3)
that at any time when any such failure has occurred and is continuing, it will, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying agent.
(b)
If the Company shall act as its own paying agent, it will, on or before each due date of the principal of (and premium, if any)
or any interest on the Securities of any series, set aside, segregate and hold in trust for the benefit of the persons entitled thereto
a sum sufficient to pay such principal (and premium, if any) or any interest so becoming due until such sums shall be paid to such persons
or otherwise disposed of as herein provided. The Company will promptly notify the Trustee of any failure to take such action.
(c)
Whenever the Company shall have one or more paying agents with respect to a series of Securities, it will, on or prior to each
due date of the principal of (and premium, if any, on) or any interest on, any Securities, deposit with a paying agent a sum sufficient
to pay the principal (and premium, if any) or any 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 its action or failure so to act.
(d)
Anything in this Section to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to one or more or all series of Securities hereunder, or for any other reason,
pay or cause to be paid to the Trustee all sums held in trust for such series by it or any paying agent hereunder as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained, 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.
(e)
Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 12.03 and Section 12.04.
SECTION
4.04. Statement as to Compliance.
The Company will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company, commencing with the fiscal year ending in the year during which the first
series of Securities is issued hereunder (but in no event more than one year from the issuance of the first series hereunder), a written
statement signed by the Chief Executive Officer, President or other principal executive officer and by the Treasurer or other principal
financial officer or principal accounting officer of the Company, stating, as to each signer thereof, that:
(a)
a review of the activities of the Company during such year and of performance under this Indenture has been made under his supervision;
and
(b)
to the best of his knowledge, based on such review, the Company has fulfilled all its obligations under this Indenture throughout
such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to him and the
nature and status thereof.
SECTION
4.05. Corporate Existence.
Subject
to the provisions of Article 11, the Company will do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence, rights (charter and statutory) and franchises and the corporate existence and rights (charter
and statutory) and franchises of its subsidiaries; provided, however, that the Company shall not be required to, or to
cause any subsidiary to, preserve any right or franchise or to keep in full force and effect the corporate existence of any subsidiary
if the Company shall determine that the keeping in existence or preservation thereof is no longer desirable in or consistent with the
conduct of the business of the Company.
SECTION
4.06. Reserved.
SECTION
4.07. Waiver of Covenants.
The Company may omit in any particular instance
to comply with any covenant or condition set forth herein if before or after the time for such compliance the holders of a majority in
principal amount of the Securities of all series affected thereby then Outstanding shall either waive such compliance in such instance
or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition
except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties
of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
SECTION
4.08. Notice of Default.
The Company will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers’ Certificate signed by
its Chief Executive Officer, President, Chief Financial Officer or Treasurer stating whether or not to the best knowledge of the signor
thereof, the Company is in default in the performance or observance of any of the terms, provisions and conditions of this Indenture,
and if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
ARTICLE 5
SECURITYHOLDER LISTS AND
REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION
5.01. Securityholder Lists.
The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee (1) semiannually, not later than January 15 and July 15 in each year,
when any Securities of a series are Outstanding, a list, in such form as the Trustee may reasonably require, of all information in the
possession or control of the Company as to the names and addresses of the holders of such Registered Securities as of such date, and
(2) at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request,
a list, in such form as the Trustee may reasonably require, of all information in the possession or control of the Company as to the
names and addresses of the holders of Registered Securities of a particular series specified by the Trustee as of a date not more than
15 days prior to the time such information is furnished; provided, however, that if and so long as the Trustee shall
be the Security Registrar with respect to such series, such list shall not be required to be furnished.
SECTION
5.02. Preservation and Disclosure of Lists.
(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 each series of Securities contained in the most recent list furnished to it as provided in Section 5.01 or received
by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 5.01
upon receipt of a new list so furnished.
(b)
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. The Company, the Trustee, the Security Registrar and anyone
else shall have the protection of Section 312(c) of the Trust Indenture Act with respect to the sending of any material pursuant
to a request made pursuant to Section 312(b) of the Trust Indenture Act.
SECTION
5.03. Reports by the Company.
The Company covenants so long as Securities are
Outstanding:
(a)
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 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;
(b)
to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time 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; and
(c)
to transmit by mail to all the holders of Registered Securities of each series, as the names and addresses of such holders appear
on the registry books, 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 with respect to each such series 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)
On or about [________________, _______], so long as any Securities are outstanding hereunder and if there has been any change
in the following, the Trustee shall transmit by mail, first class postage prepared, to the securityholders, as their names appear upon
the Security Register, a brief report dated as of the preceding [________________, _______], if and to the extent required under Section 313(a) of
the Trust Indenture Act, detailing certain events that occurred within the previous 12 months.
(b)
The Trustee shall comply with Sections 313(b) and 313(c) of the Trust Indenture Act.
(c)
A copy of each such report shall, at the time of such transmission to securityholders, be filed by the Trustee with the Company,
with each stock exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees to notify
the Trustee when any Securities become listed on any stock exchange.
ARTICLE 6
REMEDIES
SECTION
6.01. Events of Default; Acceleration of Maturity.
In case one or more of the following Events of
Default with respect to a particular series shall have occurred and be continuing:
(a)
default in (a) the payment of the principal of (or premium, if any, on) any of the Securities of such series as and when
the same shall become due and payable either at maturity, upon redemption, by declaration or otherwise or (b) any payment required
by any sinking or analogous fund established with respect to that series; or
(b)
default in the payment of any installment of interest upon any of the Securities of such series as and when the same shall become
due and payable, and continuance of such default for a period of 90 days; or
(c)
failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company
contained in the Securities or in this Indenture for a period of 90 days after the date on which written notice of such failure,
requiring the Company to remedy the same, shall have been given to the Company by the Trustee, or to the Company and the Trustee by the
holders of at least 25% in aggregate principal amount of the Securities of that series at the time Outstanding; or
(d)
a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or ordering
the winding-up or liquidation of its affairs and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
or
(e)
the Company shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of the Company or
for any substantial part of its property, or shall make any general assignment for the benefit of creditors; or
(f)
any other Event of Default provided with respect to Securities of that series;
then, if an Event of Default described in clause (a), (b), (c),
or (f) shall have occurred and be continuing, and in each and every such case, unless the principal amount of all the Securities
of such series shall have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal
amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given
by securityholders) may declare the principal amount of all the Securities (or, with respect to Original Issue Discount Securities, such
lesser amount as may be specified in the terms of such 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, anything in this Indenture or in the Securities of such series
contained to the contrary notwithstanding; or, if an Event of Default described in clause (d) or (e) shall have occurred and
be continuing, and in each and every such case, unless the principal of all the Securities of such series shall have already become due
and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of all the Securities of that series
then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by securityholders), may declare the principal
of all the Securities (or, with respect to Original Issue Discount Securities, such lesser amount as may be specified in the terms of
such Securities) to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due
and payable, anything in this Indenture or in the Securities contained to the contrary notwithstanding.
SECTION
6.02. Rescission and Annulment
The provisions in Section 6.01 are subject
to the condition that if, at any time after the principal of the Securities of any one or more of all series, as the case may be, shall
have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments
of interest upon all the Securities of such series or of all the Securities, as the case may be, and the principal of (and premium, if
any, on) all Securities of such series or of all the Securities, as the case may be (or, with respect to Original Issue Discount Securities,
such lesser amount as may be specified in the terms of such Securities), which shall have become due otherwise than by acceleration (with
interest upon such principal and premium, if any) and, to the extent that payment of such interest is enforceable under applicable law,
on overdue installments of interest, at the same rate as the rate of interest specified in the Securities of such series or all Securities,
as the case may be (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for
interest on overdue principal thereof upon maturity, redemption or acceleration of such series, as the case may be), to the date of such
payment or deposit, and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its negligence
or bad faith, and any and all defaults under the Indenture, other than the non-payment of the principal of Securities that has become
due by acceleration, shall have been remedied; then and in every such case the holders of a majority in aggregate principal amount of
the Securities of such series (or of all the Securities, as the case may be) then Outstanding, by written notice to the Company and to
the Trustee, may waive all defaults with respect to that series or with respect to all Securities, as the case may be in such case, treated
as a single class and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend
to or shall affect any subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce
any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission and annulment
or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Trustee
and the securityholders, as the case may be, shall be restored respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the securityholders, as the case may be, shall continue as though no such proceedings
had been taken.
SECTION
6.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(a)
default is made in the payment of any installment of interest on any Security when such interest becomes due and payable and such
default continues for a period of 90 days, or
(b)
default is made in the payment of the principal or premium, if any, of any Security at the maturity thereof, including any maturity
occurring by reason of a call for redemption or otherwise,
the Company will, upon demand of the Trustee, pay to it, for the benefit
of the holders of such Securities and any coupons appertaining thereto, the whole amount that shall have become due and payable on such
Securities and coupons for principal or premium, if any, and interest, with interest upon the overdue principal and, to the extent that
payment of such interest shall be legally enforceable, upon overdue installments of interest, at the rate borne by such Securities; and,
in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection
of the sums so due and unpaid, and may prosecute such proceedings to judgment or final decree, and may enforce the same against the Company
or any other obligor upon the Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever situated.
If
an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and
the rights of the securityholders by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce
any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION
6.04. Trustee May File Proofs of Claim.
In the case of the pendency of a receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall
be entitled and empowered, by intervention in such proceeding or otherwise:
(a)
to file and prove a claim for the whole amount of principal and premium, if any, and any interest owing and unpaid in respect
of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and
of the holders of Securities and coupons allowed in such judicial proceeding; and
(b)
to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator or sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by each holder of Securities and coupons to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the holders of Securities
and coupons, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.06. To the extent that such payment of reasonable
compensation, expenses, disbursements, advances and other amounts out of the estate in any such proceedings shall be denied for any reason,
payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, moneys, securities
and other property which the holders of the Securities and coupons may be entitled to receive in such proceedings, whether in liquidation
or under any plan or reorganization or arrangements or otherwise.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of the holder of a Security or a coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or coupons or the rights of any holder thereof, or to authorize the Trustee
to vote in respect of the claim of any holder of a Security or a coupon in any such proceeding.
SECTION
6.05. Trustee May Enforce Claims Without Possession of Securities or Coupons.
All rights of action and claims under this Indenture
or the Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or coupons
or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Securities and coupons
in respect of which such judgment has been recovered.
SECTION
6.06. Application of Money Collected.
Any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution
of such money on account of principal or premium, if any, or any interest, upon presentation of the Securities or coupons, or both, as
the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 7.06;
SECOND: To the payment of all senior indebtedness
of the Company if and to the extent required by Article 16;
THIRD: To the payment of the amounts then due and
unpaid upon the Securities for principal of and premium, if any, and any interest on the Securities and coupons, 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 and coupons, for principal and any interest, respectively; and
FOURTH: To the Company or its successors or assigns,
or to whomsoever may be lawfully entitled to receive the same.
SECTION
6.07. Limitation on Suits.
No holder of any Security of any series or any
related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless:
(1)
such holder has previously given written notice to the Trustee of a continuing Event of Default;
(2)
the holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3)
such holder or holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4)
the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such
proceedings; and
(5)
no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the holders of
a majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more such holders
of Securities shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such holders of Securities or to obtain or to seek to obtain priority or preference over
any other of such holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such holders of Securities.
SECTION
6.08. Unconditional Right of Securityholders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture,
the holder of any Security or coupon shall have the right, which is absolute and unconditional, to receive payment of the principal of
and premium, if any, and (subject to Section 2.05 and Section 3.02) any interest on such Security or payment of such coupon
on the respective stated maturities expressed in such Security or coupon (or, in the case of redemption, on the redemption date) and
to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such holder.
SECTION
6.09. Restoration of Rights and Remedies.
If
the Trustee or any holder of a Security or coupon has instituted any proceeding to enforce any right or remedy under this Indenture and
such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such holder,
then and in every such case the Company, the Trustee and the holders of Securities and coupons shall, subject to any determination in
such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies
of the Trustee and the holders shall continue as though no such proceeding has been instituted.
SECTION
6.10. Rights and Remedies Cumulative.
Except as provided in Section 2.09, no right
or remedy herein conferred upon or reserved to the Trustee or to the holders of Securities or coupons is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION
6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any
holder of any Security or coupon to exercise any right or remedy accruing upon any Default shall impair any such right or remedy or constitute
a waiver of any such Default or any acquiescence therein. Every right and remedy given by this Article or by law to the Trustee
or to the holders of Securities or coupons may be exercised from time to time, and as often as may be deemed expedient, by the Trustee
or by the holders of Securities or coupons, as the case may be.
SECTION
6.12. Control by Securityholders.
The holders of a majority in principal amount
of Outstanding Securities of each series shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on the Trustee, provided that
(1)
such direction shall not be in conflict with any statute, rule of law or with this Indenture;
(2)
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(3)
the Trustee need not take any action which it in good faith determines might involve it in personal liability or be unjustly prejudicial
to the securityholders not consenting.
Upon receipt by the Trustee of any such direction
with respect to Securities of a series all or part of which is represented by a temporary global Security or a permanent global Security,
the Trustee shall establish a record date for determining holders of Outstanding Securities of such series entitled to join in such direction,
which record date shall be at the close of business on the day the Trustee receives such direction. The holders on such record date,
or their duly designated proxies, and only such persons, shall be entitled to join in such direction, whether or not such holders remain
holders after such record date, provided that, unless such majority in principal amount shall have been obtained prior to the day which
is 90 days after such record date, such direction shall automatically and without further action by any holder be cancelled and
of no further effect. Nothing in this paragraph shall prevent a holder, or a proxy of a holder, from giving, after expiration of such
90-day period, a new direction identical to a direction which has been cancelled pursuant to the proviso to the preceding sentence, in
which event a new record date shall be established pursuant to the provisions of this Section 6.12.
SECTION
6.13. Waiver of Past Defaults.
The holders of a majority in principal amount
of the Securities of each series at the time Outstanding may, on behalf of the holders of all the Securities of that series and any coupons
appertaining thereto, waive any past default hereunder and its consequences, except a default:
(1)
in the payment of the principal of, premium, if any, or any interest on any Security; or
(2)
in respect of a covenant or provision hereof that pursuant to Article 10 cannot be modified or amended without the consent
of the holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Default
or Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture, but no such waiver shall
extend to any subsequent or other default or impair any right consequent thereon.
SECTION
6.14. Undertaking for Costs.
All parties to this Indenture agree, and each
holder of any Security or coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant
in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any holder, or group of holders,
holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by
any holder of any Securities or coupons for the enforcement of the payment of the principal of, premium, if any, or any interest on any
Security or the payment of any coupon on or after the respective stated maturities expressed in such Security or coupon (or, in the case
of redemption, on or after the redemption date, except, in the case of a partial redemption, with respect to the portion not so redeemed).
SECTION
6.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension laws wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefits or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been enacted.
ARTICLE 7
CONCERNING THE TRUSTEE
SECTION
7.01. Duties and Responsibilities of Trustee.
(a)
The Trustee, prior to the occurrence of an Event of Default of a particular series and after the curing of all Events of Default
of such series which may have occurred, undertakes to perform such duties and only such duties with respect to such series as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee. In the absence
of bad faith on the part of the Trustee, the Trustee may 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 which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of
this Indenture.
(b)
In case an Event of Default with respect to a particular series has occurred (which has not been cured), the Trustee shall exercise
with respect to such 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.
(c)
No provisions 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 a particular series and after the curing of all Events of Default
with respect to such series which may have occurred, the duties and obligations of the Trustee with respect to such series shall be determined
solely by the express provisions of this Indenture, and the Trustee shall not be liable 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;
(2)
the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(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 Securities pursuant to Section 6.12 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.
(d)
No provision of this Indenture shall be construed as requiring the Trustee to expend or risk its own funds or otherwise to incur
any personal financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
SECTION
7.02. Reliance on Documents, Opinions, etc.
Subject to the provisions of 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, bond, debenture, note, coupon 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 Company Request or
Company Order (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced
to the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of the Company; and whenever in the administration
of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers’ Certificate;
(c)
the Trustee may consult with counsel and the written advice of such counsel and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it 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 holders of any Securities or any related coupons pursuant to the provisions of this Indenture, unless
such holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might
be incurred therein or thereby;
(e)
the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or documents, but
the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
(f)
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; and
(g)
the Trustee shall not be liable for any action taken, suffered 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.
SECTION
7.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities,
other than the Trustee’s certificate of authentication, and in any coupons shall be taken as the statements of the Company, and
the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities or coupons, provided that the Trustee shall not be relieved of its duty to authenticate Securities
only as authorized by this Indenture. The Trustee shall not be accountable for the use or application by the Company of Securities or
the proceeds thereof.
SECTION
7.04. Ownership of Securities.
The Trustee, any authenticating agent, any paying
agent, any Security Registrar or any other agent of the Company or of the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Securities and coupons with the same rights it would have if it were not Trustee, authenticating agent, paying
agent, Security Registrar or such other agent of the Company or of the Trustee.
SECTION
7.05. Moneys to be Held in Trust.
Subject to the provisions of Section 12.04
hereof, all moneys received by the Trustee or any paying agent 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. Neither
the Trustee nor any paying agent shall be under any liability for interest on any moneys received by it hereunder except such as it may
agree in writing with the Company to pay thereon.
SECTION
7.06. Compensation and Expenses of Trustee.
The Company covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such compensation for all services rendered by it hereunder as the Company
and the Trustee shall from time to time agree in writing (which to the extent permitted by law shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust), and, except as otherwise expressly provided, the Company will
pay or reimburse the Trustee forthwith 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. If any property other than cash shall at any time be subject to the lien of this Indenture, the Trustee, if
and to the extent authorized by a receivership or bankruptcy court of competent jurisdiction or by the supplemental instrument subjecting
such property to such lien, shall be entitled to make and to be reimbursed for, advances for the purpose of preserving such property
or of discharging tax liens or other prior liens or encumbrances thereon. The Company also covenants to indemnify the Trustee for, and
to hold it harmless against, any and all loss, damage, claims, liability or expense, including taxes (other than taxes based upon, measured
or determined by, the income of the Trustee) incurred without negligence or bad faith on the part of the Trustee, 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. The obligations of the Company under this Section 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.
To secure the Company’s obligations under
this Section, the Trustee shall have a senior claim to which the Securities are hereby made subordinate on all money or property held
or collected by the Trustee, except that held in trust to pay principal of (and premium, if any) and interest, if any, on particular
Securities.
When the Trustee incurs expenses or renders services
after an Event of Default, the expenses and the compensation for the services are intended to constitute expenses of administration under
any bankruptcy law.
SECTION 7.07.
Subject to the provisions of 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 any action to be taken 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 by it under the
provisions of this Indenture upon the faith thereof.
SECTION
7.08. Disqualifications; Conflicting Interest of Trustee.
If the Trustee has or shall acquire any “conflicting
interest” within the meaning 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. Eligibility of Trustee.
There shall at all times be a Trustee hereunder
which shall be a corporation organized and doing business under the laws of the United States or of any State or Territory thereof or
of the District of Columbia, which (a) is authorized under such laws to exercise corporate trust powers, (b) is subject to
supervision or examination by federal, state, territorial or District of Columbia authority, (c) shall have at all times a combined
capital and surplus of not less than $5,000,000 and (d) shall not be the Company or any person directly or indirectly controlling,
controlled by, or under common control with the Company. 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 at any time shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. 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 or Removal of Trustee.
(a)
The Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series
by giving written notice of resignation to the Company. Upon receiving such notice of resignation, the Company shall promptly appoint
a successor trustee with respect to the applicable 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. 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 of the following shall occur:
(1)
the Trustee shall fail to comply with the provisions of subsection (a) of Section 7.08 with respect to any series of
Securities after written request therefor by the Company or by any securityholder who has been a bona fide holder of a Security or Securities
of such series for at least six months, or
(2)
the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 with respect to any series of Securities
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 with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver of the Trustee or of its property shall be appointed, 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 the applicable series of Securities and appoint a successor trustee with respect to 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 Trustee so removed and one copy to
the successor trustee, or, subject to the provisions of Section 6.14, any securityholder of such series who has been a bona fide
holder of a Security or Securities of the applicable series for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with
respect to such series. 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 all series (voting as one class) at the time Outstanding
may at any time remove the Trustee with respect to Securities of all series and appoint a successor trustee with respect to the Securities
of all series.
(d)
Any resignation or removal of the Trustee and any appointment of a successor trustee pursuant to any of the provisions of this
Section shall become effective upon the appointment of a successor trustee and the acceptance of appointment by the successor trustee
as provided in Section 7.11.
SECTION
7.11. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in
Section 7.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties
and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee herein;
but, nevertheless, on the written request of the Company or of the successor trustee, the predecessor trustee shall, upon payment of
any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor
trustee all the rights and powers of the predecessor trustee. Upon request of any such successor trustee, the Company shall execute any
and all instruments in writing in order more fully and certainly to vest in and confirm to such successor trustee all such rights and
powers. Any trustee, including the initial Trustee, ceasing to act shall, nevertheless, retain a lien upon all property or funds held
or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 7.06.
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 predecessor Trustee and each successor trustee
with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested
in the predecessor Trustee, and 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 and 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.
No successor trustee shall accept appointment
as provided in this Section unless at the time of such acceptance such successor trustee shall be qualified and eligible under the
provisions of this Article 7.
Upon acceptance of appointment by a successor
trustee as provided in this Section, the Company shall mail notice of the succession of such trustee hereunder to all holders of Securities
of any applicable series as the names and addresses of such holders shall appear on the registry books. If the Company fails to mail
such notice in the prescribed manner within ten days after the acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be so mailed at the expense of the Company.
SECTION
7.12. Successor by Merger, etc.
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 all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be qualified and eligible under the provisions
of this Article 7, 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. Limitations on Rights of Trustee as Creditor.
The Trustee shall comply with Section 311(a) of
the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee
who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
SECTION
7.14. Notice of Default.
Within 90 days after the occurrence of any
default on a series of Securities hereunder, the Trustee shall transmit to all securityholders of that series, in the manner and to the
extent provided in Section 15.04, notice of such default hereunder known to the Trustee, unless such default shall have been cured
or waived; provided , however , that except in the case of a default in the payment of the principal of or interest on
any Security or on the payment of any sinking or purchase fund installment, the Trustee shall be protected in withholding such notice
if and so long as the trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interests of the security-holders; and provided , further , that in the case of any default of
the character specified in clause (c) of Section 6.01 no such notice to securityholders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the term “default” means any event which is, or after notice
or lapse of time or both would become, an Event of Default with respect to Securities of such series.
SECTION
7.15. Appointment of Authenticating Agent.
The Trustee may appoint an authenticating agent
or agents (which may be an affiliate or affiliates of the Company) with respect to one or more series of Securities which shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue or upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 2.09, 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. Wherever reference
is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an authenticating agent and a certificate
of authentication executed on behalf of the Trustee by an authenticating agent. Each authenticating agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business under the laws of the United States of America or of any
State or Territory thereof or of the District of Columbia, which (a) is authorized under such laws to exercise corporate trust powers
or to otherwise act as authenticating agent, (b) is subject to supervision or examination by federal, state, territorial or District
of Columbia authority, and (c) shall have at all times a combined capital and surplus of not less than $5,000,000. If such authenticating
agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such authenticating agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any time an authenticating agent shall cease
to be eligible in accordance with the provisions of this Section, such authenticating agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an authenticating agent
may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which such authenticating agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business
of such authenticating agent, shall continue to be an authenticating agent, provided such corporation shall be otherwise eligible under
this Section, without the execution or filing of any paper or any further act on the part of the Trustee or such authenticating agent.
An authenticating agent may resign at any time
by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an authenticating
agent by giving written notice thereof to such authenticating agent and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such authenticating agent shall cease to be eligible in accordance with the provisions
of this Section, the Trustee may appoint a successor authenticating agent which shall be acceptable to the Company and shall promptly
give notice of such appointment to all holders of Securities in the manner and to the extent provided in Section 15.04. Any successor
authenticating agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an authenticating agent. No successor authenticating agent shall be appointed unless
eligible under the provisions of this Section.
The Trustee agrees to pay to each authenticating
agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed
for such payments, subject to the provisions of Section 7.06.
If an appointment with respect to one or more
series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s
certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[ ], |
|
as Trustee |
|
|
By: |
|
|
|
Authorized Signatory |
If all of the Securities of a series may not be
originally issued at one time, and the Trustee does not have an office capable of authenticating Securities upon original issuance located
in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance, the Trustee, if
so requested by the Company in writing, shall appoint in accordance with this Section an authenticating agent (which, if so requested
by the Company, shall be such affiliate of the Company) having an office in a Place of Payment designated by the Company with respect
to such series of Securities, provided that the terms and conditions of such appointment are acceptable to the Trustee.
ARTICLE 8
CONCERNING THE SECURITYHOLDERS
SECTION
8.01. Action by Securityholders.
Whenever in this Indenture it is provided that
the holders of a specified percentage in aggregate principal amount of the Securities of any or all series may take any action (including
the making of any demand or request, the giving of any authorization, 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 specified percentage have joined therein may be evidenced (a) by
any instrument or any number of instruments of similar tenor executed by securityholders in person or by agent or proxy appointed in
writing, or (b) if Securities of a series are issuable as Bearer Securities, by the record of the holders of Securities voting in
favor thereof, either in person or by proxies duly appointed in writing, at any meeting of securityholders of such series duly called
and held in accordance with the provisions of Article 9, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of securityholders.
In
determining whether the holders of a specified percentage in aggregate principal amount of the Securities of any or all series
have taken any action (including the making of any demand or request, the giving of any authorization, direction, notice, consent or
waiver or the taking of any other action), (i) the principal amount of any Original Issue Discount Security that may be counted
in making such determination and that shall be deemed to be outstanding for such purposes shall be equal to the amount of the principal
thereof that could be declared to be due and payable upon an Event of Default pursuant to the terms of such Original Issue Discount Security
at the time the taking of such of such action is evidenced to the Trustee, and (ii) the principal amount of a Security denominated
in a foreign currency or currency unit shall be the U.S. dollar equivalent, determined as of the date of original issuance of such
Security in accordance with Section 2.03(b) hereof, of the principal amount of such Security.
SECTION
8.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01,
Section 7.02 and Section 9.05, proof of the execution of any instrument by a securityholder or its agent or proxy, or of the
holding by any person of a Security, shall be sufficient and conclusive in favor of the Trustee and the Company if made in accordance
with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee.
The principal amount and serial numbers of Registered
Securities held by any person, and the date of holding the same, shall be proved by the Security Register. The principal amount and serial
numbers of Bearer Securities held by any person, and the date of holding the same, may be proved by the production of such Bearer Securities
or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever situated, if such certificate
shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such person had on deposit with such depositary,
or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the person
holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Company
may assume that such ownership of any Bearer Security continues until (1) another certificate or affidavit bearing a later date
issued in respect of the same Bearer Security is produced, or (2) such Bearer Security is produced to the Trustee by some other
person, or (3) such Bearer Security is surrendered in exchange for a Registered Security, or (4) such Bearer Security is no
longer Outstanding. The principal amount and serial numbers of Bearer Securities held by any person, and the date of holding the same,
may also be provided in any other manner which the Trustee deems sufficient.
The record of any securityholders’ meeting
shall be proved in the manner provided in Section 9.06.
SECTION
8.03. Who Are Deemed Absolute Owners.
Prior to due presentment of a Registered Security
for registration of transfer, the Company, the Trustee and any agent of the Company or of the Trustee may deem the person in whose name
such Registered Security shall be registered upon the Security Register to be, and may treat him as, the absolute owner of such Registered
Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon), for
the purpose of receiving payment of or on account of the principal of (and premium, if any) and, subject to the provisions of Section 2.05
and Section 2.07, any interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any agent
of the Company or of the Trustee shall be affected by any notice to the contrary. All such payments so made to any holder for the time
being, or upon his order, shall be valid and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability
for moneys payable upon any such Security.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the Company or of the Trustee may treat the bearer of any Bearer
Security and the bearer of any coupon as the owner of such Security or coupon for the purpose of receiving payment thereof or on account
thereof and for all other purposes whatsoever, whether or not such Security or coupon be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to
any temporary or permanent global Security, nothing herein shall prevent the Company, the Trustee, or any agent of the Company or of
the Trustee, from giving effect to any written certification, proxy or other authorization furnished by a Common Depositary or a U.S. Depositary,
as the case may be, or impair, as between a Common Depositary or a U.S. Depositary and holders of beneficial interests in any temporary
or permanent global Security, as the case may be, the operation of customary practices governing the exercise of the rights of the Common
Depositary or the U.S. Depositary as holder of such temporary or permanent global Security.
SECTION
8.04. Company-Owned Securities Disregarded.
In determining whether the holders of the required
aggregate principal amount of Securities have provided any request, demand, authorization, notice, direction, consent or waiver under
this Indenture, Securities which are owned by the Company or any other obligor on the Securities, or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the Company or any other obligor on the Securities, 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 request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows are so owned shall be so disregarded. Securities so owned which 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 to vote 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 the 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. Revocation of Consents; Future Securityholders Bound.
At any time prior to the taking of any action
by the holders of the percentage in aggregate principal amount of the Securities specified in this Indenture in connection with such
action, any holder of a Security, the identifying number of which 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 at its office 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 upon registration of transfer of or in exchange or substitution therefor in respect of anything done, omitted or suffered to be
done by the Trustee or the Company in reliance thereon, irrespective of whether or not any notation in regard thereto is made upon such
Security. Any action taken by the holders of the percentage in aggregate principal amount of the Securities 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.
SECTION
8.06. Record Date.
The Company may, but shall not be obligated to,
set a record date for purposes of determining the identity of holders of Securities of any series entitled to vote or consent to any
action by vote or consent or to otherwise take any action under this Indenture authorized or permitted by Section 6.12 and Section 6.13
or otherwise under this Indenture. Such record date shall be the later of (i) the date 20 days prior to the first solicitation
of such consent or vote or other action and (ii) the date of the most recent list of holders of such Securities delivered to the
principal corporate trust office of the Trustee pursuant to Section 5.01 prior to such solicitation. If such a record date is fixed,
those persons who were holders of such Securities at the close of business on such record date shall be entitled to vote or consent or
take such other action, or to revoke any such action, whether or not such persons continue to be holders after such record date, and
for that purpose the Outstanding Securities shall be computed as of such record date.
ARTICLE 9
SECURITYHOLDERS’ MEETINGS
SECTION
9.01. Purposes of Meeting.
A meeting of holders of any or all series of Securities
may be called at any time and from time to time pursuant to the provisions of this Article for any of the following purposes:
(a)
to give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to waive any default hereunder
and its consequences, or to take any other action authorized to be taken by securityholders pursuant to any of the provisions of Article 6;
(b)
to remove the Trustee and appoint a successor trustee pursuant to the provisions of Article 7;
(c)
to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02;
or
(d)
to take any other action authorized to be taken by or on behalf of the holders of any specified aggregate principal amount of
the Securities of any or all series, as the case may be, under any other provision of this Indenture or under applicable law.
SECTION
9.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of
security-holders of any or all series to take any action specified in Section 9.01, to be held at such time and at such place in
Williamsport, Pennsylvania or Philadelphia, Pennsylvania as the Trustee shall determine. Notice of every meeting of the securityholders
of any or all series, setting forth the time and place of such meeting and in general terms the action proposed to be taken at such meeting,
shall be given in the manner provided in Section 15.04 not less than 20 nor more than 180 days prior to the date fixed for
the meeting.
SECTION
9.03. Call of Meetings by Company or Securityholders.
In case at any time the Company, pursuant to a
Board Resolution, or the holders of at least 10% in aggregate principal amount of the Securities of any or all series, as the case may
be, then Outstanding, shall have requested the Trustee to call a meeting of securityholders of any or all series to take any action authorized
in Section 9.01, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee
shall not have provided notice of such meeting in the manner provided in Section 15.04 within 30 days after receipt of such
request, then the Company or the holders of such Securities in the amount above specified may determine the time and the place in Williamsport,
Pennsylvania or Philadelphia, Pennsylvania for such meeting and may call such meeting by giving notice thereof as provided in Section 9.02.
SECTION
9.04. Qualifications for Voting.
To be entitled to vote at any meeting of securityholders
a person shall be a holder of one or more Securities of such series Outstanding with respect to which a meeting is being held or a person
appointed by an instrument in writing as proxy by such a holder or holders. The only persons who shall be entitled to be present or to
speak at any meeting of the securityholders of any series shall be the persons entitled to vote at such meeting and their counsel and
any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
SECTION
9.05. Regulations.
Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for any meeting of securityholders of a series, 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 deems fit. Except as otherwise permitted or required by any such regulations, the holding of Securities
shall be proved in the manner specified in Article 8 and the appointment of any proxy shall be proved in the manner specified in
Article 8 or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Article 8 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the proof specified in Article 8 or other proof.
The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by securityholders as provided
in Section 9.03, in which case the Company or the securityholders 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 holders of
a majority in principal amount of the Securities represented at the meeting and entitled to vote.
Subject to the provisions of Section 8.01
and Section 8.04, at any meeting each securityholder or proxy shall be entitled to one vote for each $1,000 (or the U.S. Dollar
equivalent thereof in connection with Securities issued in a foreign currency or currency unit) Outstanding 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 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 securityholder or proxy. Any meeting of securityholders duly called pursuant to the
provisions of Section 9.02 or Section 9.03 may be adjourned from time to time, and the meeting may be reconvened without further
notice.
SECTION
9.06. Voting.
The vote upon any resolution submitted to any
meeting of securityholders shall be by written ballot on which shall be subscribed the signatures of the securityholders or proxies and
on which shall be inscribed the identifying number or numbers or to which shall be attached a list of identifying numbers of the Securities
held or represented by them. The 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 in duplicate of the proceedings of each meeting of securityholders shall be prepared
by the secretary of the meeting and there shall be attached to the 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 the notice was mailed as provided in Section 9.02. The record shall be signed and verified by the chairman
and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other 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 10
SUPPLEMENTAL INDENTURES
SECTION
10.01. Supplemental Indentures without Consent of Securityholders.
Without the consent of any holders of Securities
or coupons, the Company, when authorized by or pursuant to Board Resolution, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as in force at
the date of the execution thereof) for one or more of the following purposes:
(a)
to evidence the succession of another corporation to the Company, or successive successions, pursuant to Article 11 hereof,
and the assumption by the successor corporation of the covenants, agreements and obligations of the Company herein and in the Securities;
(b)
to add to the covenants of the Company such further covenants, restrictions, conditions or provisions as its Board of Directors
shall consider to be for the protection of the holders of Securities, and to make the occurrence, or the occurrence and continuance,
of a default in any of such additional covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement
of all or any of the several remedies provided in this Indenture as herein set forth, with such period of grace, if any, and subject
to such conditions as such supplemental indenture may provide;
(c)
to add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal of or any premium or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities
of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form, provided that any such
action shall not adversely affect the interests of the holders of Securities of any series or any related coupons in any material respect;
(d)
to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification
of this Indenture under the Trust Indenture Act, or under any similar federal statute hereafter enacted, and to add to this Indenture
such other provisions as may be expressly permitted by the Trust Indenture Act, excluding however, the provisions referred to in Section 316(a)(2) of
the Trust Indenture Act or any corresponding provision in any similar federal statute hereafter enacted;
(e)
to modify, eliminate or add to any of the provisions of this Indenture, provided that any such change or elimination (i) shall
become effective only when there is no Security of any series Outstanding and created prior to the execution of such supplemental indenture
that is entitled to the benefit of such provision or (ii) shall not apply to any Security Outstanding;
(f)
to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provisions contained herein or in any supplemental indenture; to convey, transfer, assign, mortgage
or pledge any property to or with the Trustee; or to make such other provisions in regard to matters or questions arising under this
Indenture, provided such other provisions shall not adversely affect in any material respect the interests of the holders of the
Securities or any related coupons, including provisions necessary or desirable to provide for or facilitate the administration of the
trusts hereunder;
(g)
to secure any series of Security; and
(h)
to evidence and provide for the acceptance and appointment hereunder by a successor trustee with respect to the Securities of
one or more series and to add or change any provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one trustee, pursuant to Section 7.11.
The Trustee is hereby authorized to join with
the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may
be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee
shall not be obligated to enter into any such supplemental indenture which adversely affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise. No supplemental indenture shall be effective as against the Trustee unless and until the
Trustee has duly executed and delivered the same.
SECTION
10.02. Supplemental Indentures with Consent of Holders.
With the consent (evidenced as provided in Section 8.01)
of the holders of not less than 66⅔% in aggregate principal amount of the Securities of all series at the time Outstanding affected
by such supplemental indenture (voting as one class), the Company, when authorized by a Board Resolution, and the Trustee may from time
to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the
holders of the Securities of such series and any related coupons under this Indenture; provided , however , that no such
supplemental indenture shall (1) extend the fixed maturity of any Securities, or reduce the principal amount thereof or premium,
if any, or reduce the rate or extend the time of payment of interest thereon, without the consent of the holder of each Security so affected,
(2) reduce the aforesaid percentage of Securities, the consent of the holders of which is required for any such supplemental indenture,
without the consent of the holders of all Securities then Outstanding, (3) modify the subordination provisions in a manner adverse
to the holders of such Securities, or (4) modify any of the above provisions
Upon the request of the Company, accompanied by
a copy of a Board Resolution certified by the Secretary or an Assistant Secretary of the Company authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of the consent of securityholders 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.
It shall not be necessary for the consent of the
securityholders 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.
Promptly after the execution by the Company and
the Trustee of any supplemental indenture pursuant to the provisions of this Article 10, the Company shall provide notice, in the
manner and to the extent provided in Section 15.04, setting forth in general terms the substance of such supplemental indenture,
to all holders of Securities of each series so affected. Any failure of the Company so to provide such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such supplemental indenture.
SECTION
10.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures.
Any supplemental indenture executed pursuant to
the provisions of this Article 10 shall comply with the Trust Indenture Act, as then in effect. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article 10 and subject to the provisions in any supplemental indenture relating to
the prospective application of such instrument, this Indenture shall 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 theretofore or thereafter authenticated and delivered hereunder and of any coupons appertaining thereto
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.
The Trustee, subject to the provisions of Section 7.01
and Section 7.02, shall be entitled to receive and shall be fully protected in relying upon an Opinion of Counsel as conclusive
evidence that any such supplemental indenture complies with the provisions of this Article 10.
SECTION
10.04. Notation on Securities.
Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of this Article 10 may bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental indenture. New Securities of any series so modified as to conform,
in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture
may be prepared by the Company, authenticated by the Trustee and delivered, without charge to the securityholders, in exchange for the
Securities of such series then Outstanding.
ARTICLE 11
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION
11.01. Company May Consolidate, etc., on Certain Terms.
The Company covenants that it will not merge into
or consolidate with any other corporation or sell or convey all or substantially all of its assets to any person, firm or corporation,
unless (1) either the Company shall be the continuing corporation, or the successor corporation (if other than the Company) shall
be a corporation organized and existing under the laws of the United States of America or a state thereof or the District of Columbia
and such corporation shall expressly assume the due and punctual payment of the principal of (and premium, if any, on) and any interest
on all the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions
of this Indenture to be performed by the Company by supplemental indenture satisfactory to the Trustee, executed and delivered to the
Trustee by such corporation, and (2) the Company or such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition.
SECTION
11.02. Successor Corporation Substituted.
In case of any such consolidation, merger, sale
or conveyance and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted
for, and may exercise every right and power of, the Company, with the same effect as if it had been named herein as the party of the
first part. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of the Company,
any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee;
and, upon the order of such successor corporation, instead of the Company, and subject to all the terms, conditions and limitations in
this Indenture prescribed, the Trustee shall authenticate and shall make available for delivery any Securities which previously shall
have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee for that purpose. All of the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such Securities had been issued at the date of the execution thereof.
In case of any such consolidation, merger, sale
or conveyance such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may
be appropriate.
SECTION
11.03. Opinion of Counsel and Officers’ Certificate to be Given Trustee.
The Trustee shall receive an Opinion of Counsel
and Officers’ Certificate as conclusive evidence that any such consolidation, merger, sale or conveyance, and any such assumption,
complies with the provisions of this Article 11 and that all conditions precedent herein provided for relating to such transaction
have been complied with.
ARTICLE 12
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION
12.01. Discharge of Indenture.
If at any time
(a)
the Company shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated and all
coupons, if any, appertaining thereto (other than (i) coupons appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not required or has been waived as provided in Section 2.07, (ii) Securities
and coupons that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.09, (iii) coupons
appertaining to Securities called for redemption and maturing after the relevant Redemption Date, whose surrender has been waived as
provided in Section 3.03, and (iv) Securities and coupons for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 4.03),
or
(b)
all such Securities of such series and, in the case of (1)(i) or (1)(ii) above, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation (i) shall have become due and payable, or (ii) are by their terms to
become due and payable within one year, or (iii) 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 in the case of (1)(i) or (1)(iii) above shall deposit
or cause to be deposited with the Trustee as trust funds the entire amount (other than moneys repaid by the Trustee or any paying agent
to the Company in accordance with Section 12.04) sufficient to pay at maturity or upon redemption all Securities of such series
and coupons not therefore delivered to the Trustee for cancellation, including principal (and premium, if any) and any interest due or
to become due to such date of maturity or date fixed for redemption, as the case may be, and if in either case the Company shall also
pay or cause to be paid all other sums payable hereunder by the Company with respect to such series, then this Indenture shall cease
to be of further effect with respect to the Securities of such series, and the Trustee, on demand of and at the cost and expense of the
Company and subject to Section 15.05, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture
with respect to the Securities of such series. The Company agrees to reimburse the Trustee for any costs or expenses thereafter reasonably
and properly incurred by the Trustee in connection with this Indenture or the Securities of such series. Notwithstanding the satisfaction
and discharge of this Indenture with respect to the Securities of any series or of all series, the obligations of the Company to the
Trustee under Section 7.06 shall survive.
The Company will deliver to the Trustee an Officers’
Certificate and an Opinion of Counsel which together shall state that all conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
SECTION
12.02. Deposited Moneys to be Held in Trust by Trustee.
Subject
to the provisions of the last paragraph of Section 4.03, all moneys deposited with the Trustee pursuant to Section 12.01
shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Company acting as
its own paying agent), to the persons entitled thereto, of all sums due and to become due thereon for principal and interest (and premium,
if any) for which payment of such money has been deposited with the Trustee.
SECTION
12.03. Paying Agent to Repay Moneys Held.
In connection with the satisfaction and discharge
of this Indenture with respect to Securities of any series and the payment of all amounts due to the Trustee under Section 7.06,
all moneys with respect to such Securities then held by any paying agent under the provisions of this Indenture shall, upon demand of
the Company, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION
12.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee
or any paying agent for the payment of the principal of (and premium, if any) or interest on any Security and not applied but remaining
unclaimed for two years after the date upon which such principal (and premium, if any, on) or interest shall have become due and payable,
shall be repaid to the Company by the Trustee or such paying agent on demand, and the holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for any payment which such holder may be entitled to collect and all liability of
the Trustee or any paying agent with respect to such moneys shall thereupon cease.
ARTICLE 13
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION
13.01. Indenture and Securities Solely Corporate Obligations.
No recourse under or upon any obligation, covenant
or agreement contained in this Indenture, or in any Security or coupon, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, or against any past, present or future stockholder, officer or director, as such, of the Company or of any
successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities or coupons by the holders thereof and as part of the consideration for the issue
of the Securities.
ARTICLE 14
DEFEASANCE AND COVENANT DEFEASANCE
SECTION
14.01. Applicability of Article.
Unless, as specified pursuant to Section 2.03(b),
provision is made that either or both of (a) defeasance of the Securities of a series under Section 14.02 and (b) covenant
defeasance of the Securities of a series under Section 14.03 shall not apply to the Securities of a series, then the provisions
of such Section 14.02 and Section 14.03, together with Section 14.04 and Section 14.05, shall be applicable to the
Outstanding Securities of all series upon compliance with the conditions set forth below in this Article 14.
SECTION
14.02. Defeasance and Discharge.
Subject to Section 14.05, the Company may
cause itself to be discharged from its obligations with respect to the Outstanding Securities of any series on and after the date the
conditions precedent set forth below are satisfied but subject to satisfaction of the conditions subsequent set forth below (hereinafter,
“defeasance”). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder:
(a) the rights of holders of Outstanding Securities of such series to receive, solely from the trust fund described in Section 14.04
and as more fully set forth in such Section, payments of the principal of and any premium and interest on such Securities when such payments
are due, (b) the Company’s obligations with respect to such Securities under Section 2.07, Section 2.08, Section 2.09,
Section 4.02 and Section 4.03 and such obligations as shall be ancillary thereto, (c) the rights, powers, trusts, duties,
immunities and other provisions in respect of the Trustee hereunder, and (D) this Article 14. Subject to compliance with this
Article 14, defeasance with respect to Securities of a series by the Company is permitted under this Section 14.02 notwithstanding
the prior exercise of its rights under Section 14.03 with respect to the Securities of such series. Following a defeasance, payment
of the Securities of such series may not be accelerated because of an Event of Default.
SECTION
14.03. Covenant Defeasance.
The Company may cause itself to be released from
its obligations under any Sections applicable to Securities of a series that are determined pursuant to Section 2.03(b) to
be subject to this provision with respect to the Outstanding Securities of such series on and after the date the conditions precedent
set forth below are satisfied but subject to satisfaction of the conditions subsequent set forth below (hereinafter, “covenant
defeasance”). For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of such series,
the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such
Section, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference
in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
SECTION
14.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent
or, as specifically noted below, subsequent to application of either Section 14.02 or Section 14.03 to the Outstanding Securities
of such series:
(a)
The Company shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of such Securities,
(a) money in an amount, or (b) U.S. Government Obligations which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an
amount, or (c) a combination thereof, sufficient, without reinvestment, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee to pay and discharge, (i) the principal of and any premium and interest on the Outstanding Securities of such series
to maturity or redemption, as the case may be, and (ii) any mandatory sinking fund payments or analogous payments applicable to
the Outstanding Securities of such series on the due dates thereof. Before such a deposit the Company may make arrangements satisfactory
to the Trustee for the redemption of Securities at a future date or dates in accordance with Article 3 which shall be given effect
in applying the foregoing. For this purpose, “U.S. Government Obligations” means securities that are (x) direct
obligations of the United States of America for the payment of which its full faith and credit is pledged or (y) 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, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government obligation or a specific payment of principal of or interest
on any such U.S. Government Obligation held by such custodian for the account of the holder of such depository receipt, provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such depository receipt;
(b)
No Default, or event that after notice or lapse of time, or both, would become a Default with respect to the Securities of such
series, shall have happened and be continuing (a) on the date of such deposit or (b) insofar as Section 6.01(a) and
Section 6.01(b) are concerned, at any time during the period ending on the 123rd day after the date of such deposit or,
if longer, ending on the day following the expiration of the longest preference period applicable to the Company in respect of such deposit
(it being understood that the condition in this clause (b) is a condition subsequent and shall not be deemed satisfied until the
expiration of such period);
(c)
Such defeasance or covenant defeasance shall not (a) cause the Trustee for the Securities of such series to have a
conflicting interest as defined in Section 7.08 or for purposes of the Trust Indenture Act with respect to any securities of the
Company or (b) result in the trust arising from such deposit to constitute, unless it is qualified as, a regulated investment company
under the Investment Company Act of 1940, as amended;
(d)
Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is a party or by which it is bound;
(e)
Such defeasance or covenant defeasance shall not cause any Securities of such series then listed on any registered national securities
exchange under the Exchange Act to be delisted;
(f)
In the case of a defeasance under Section 14.02, the Company shall have delivered to the Trustee an Opinion of Counsel stating
that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since
the date of this Indenture there has been a change in the applicable federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the holders of the Outstanding Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such defeasance had not occurred;
(g)
In the case of covenant defeasance under Section 14.03, the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the holders of the Outstanding Securities of such series will not recognize income, gain or loss for federal income
tax purposes as a result of such covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant defeasance had not occurred;
(h)
Such defeasance or covenant defeasance shall be effected in compliance with any additional terms, conditions or limitations which
may be imposed on the Company in connection therewith pursuant to Section 2.03(b); and
(i)
The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all
conditions precedent and subsequent provided for in this Indenture relating to either the defeasance under Section 14.02 or the
covenant defeasance under Section 14.03, as the case may be, have been complied with.
SECTION
14.05. Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee pursuant to Section 14.04 in respect of the Outstanding Securities of
such series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture,
to the payment, either directly or through any paying agent (but not including the Company acting as its own paying agent) as the Trustee
may determine, to the holders of such Securities of all sums due and to become due thereon in respect of principal and any premium and
interest, but such money need not be segregated from other funds except to the extent required by law.
The
Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 14.04 or the principal and interest received in respect thereof.
Anything herein to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 14.04 which, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect an equivalent defeasance or covenant defeasance, provided that the Trustee shall not be required to liquidate
any U.S. Government Obligations in order to comply with the provisions of this paragraph.
Anything herein to the contrary notwithstanding,
if and to the extent the deposited money or U.S. Government Obligations (or the proceeds thereof) either (i) cannot be applied
by the Trustee in accordance with this Section because of a court order or by operation of Article 16 or (ii) are for
any reason insufficient in amount, then the Company’s obligations to pay principal of and any premium and interest on the Securities
of such series shall be reinstated to the extent necessary to cover the deficiency on any due date for payment. In any such case, the
Company’s interest in the deposited money and U.S. Government Obligations (and proceeds thereof) shall be reinstated to the
extent the Company’s payment obligations are reinstated.
ARTICLE 15
MISCELLANEOUS PROVISIONS
SECTION
15.01. Benefits of Indenture Restricted to Parties and Securityholders.
Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their
successors and assigns and the holders of the Securities (and, with respect to the provisions of Article 16, the holders of senior
indebtedness), any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained,
all such covenants and provisions being for the sole benefit of the parties hereto and their successors and assigns and the holders of
the Securities (and, with respect to the provisions of Article 16, the holders of senior indebtedness).
SECTION
15.02. Provisions Binding on Company’s Successors.
All
the covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION
15.03. Addresses for Notices, etc., to Company and Trustee.
Any notice or demand which by any provisions 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 postage prepaid first class mail addressed (until another address is filed by the Company with the Trustee), as
follows: Penns Woods Bancorp, Inc., 300 Market Street, P.O. Box 967, Williamsport, Pennsylvania 17703, Attn: Chief Financial
Officer. Any notice, direction, request or demand by 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 principal corporate trust office of the Trustee as set forth in Section 4.02.
SECTION
15.04. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein,
where this Indenture provides for notice of holders of Securities of any event,
(a)
such notice shall be sufficiently given to holders of Registered Securities if in writing and mailed, first-class postage prepaid,
to each holder of a Registered Security affected by such event, at the address of such holder as it appears in the Security Register,
not earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice; and
(b)
such notice shall be sufficiently given to holders of Bearer Securities if published in an Authorized Newspaper in the City of
Williamsport, Commonwealth of Pennsylvania and in such other city or cities as may be specified in such Securities on a Business Day
at least twice, the first such publication to be not earlier than the earliest date, and not later than the latest date, prescribed for
the giving of such notice.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give such notice to holders of Registered Securities by mail,
then such notification as shall be made with the approval of the Trustee shall constitute sufficient notice to such holders for every
purpose hereunder. In any case where notice to holders of Registered Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular holder of a Registered Security shall affect the sufficiency of such notice
with respect to other holders of Registered Securities or the sufficiency of any notice to holders of Bearer Securities given as provided
herein.
In case by reason of the suspension of publication
of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice
to holders of Bearer Securities as provided above, then such notification as shall be given with the approval of the Trustee shall constitute
sufficient notice to such holders for every purpose hereunder. Neither the failure to give notice by publication to holders of Bearer
Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice to holders of Registered
Securities given as provided herein.
Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by holders of Securities shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Any request, demand, authorization, direction,
notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice
may be in an official language of the country of publication.
SECTION
15.05. Evidence of Compliance with Conditions Precedent.
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, if any, 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, if any, 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.
Each Officer’s Certificate and Opinion of
Counsel provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided
for 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
15.06. Legal Holidays.
In any case where the date of maturity of interest
on or principal of the Securities or the date fixed for redemption of any Securities shall be a Saturday or Sunday or a legal holiday
in New York, New York or Philadelphia, Pennsylvania or in such other place or places as the Company may designate pursuant to Section 4.02,
or a day on which banking institutions in New York, New York or Philadelphia, Pennsylvania or in such other place or places are authorized
by law or required by executive order to close, then payment of interest or principal (and premium, if any) need not be made on such
date but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date
fixed for redemption, and no interest shall accrue for the period after such date.
SECTION
15.07. Trust Indenture Act to Control.
If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included in this Indenture
by any of Sections 310 to 317, inclusive, of the Trust Indenture Act, such required provision shall control.
SECTION
15.08. Execution in 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. Delivery of an executed signature page by facsimile or an email in PDF format shall have
the same legal effect as the delivery of a signature page containing an original signature.
SECTION
15.09. Governing Law.
This Indenture and each Security shall be deemed
to be a contract made under the laws of the Commonwealth of Pennsylvania, and for all purposes shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
SECTION
15.10. Separability Clause.
In case any provision in this Indenture or in
the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
The Trustee, by its execution of this Indenture,
hereby accepts the trusts in this Indenture declared and provided, upon the terms and conditions hereinabove set forth.
ARTICLE 16
SUBORDINATION OF SECURITIES
SECTION
16.01. Securities Subordinate to Senior Indebtedness.
The payment by the Company of the principal of
and any premium and interest on any series of Securities issued hereunder shall be subordinated to the extent set forth in an indenture
supplemental hereto relating to such Securities.
IN WITNESS WHEREOF, PENNS WOODS BANCORP, INC.
has caused this Indenture to be signed and acknowledged by its Chief Executive Officer or its President or one of its Vice Presidents,
and the same to be attested by its Secretary or an Assistant Secretary; and [_____________________] has caused this Indenture to be signed
and acknowledged by one of its Vice Presidents, and the same to be attested by one of its Assistant Secretaries, all as of the day and
year first above written.
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Title: |
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ATTEST: |
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[_______________________________________] |
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AS TRUSTEE |
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By: |
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Name: |
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Title: |
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COMMONWEALTH
OF [____________] |
) |
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) ss |
COUNTY OF [·] |
) |
On
the _____ day of [__________________, __________] before me personally came ______________________________, to me known, who, being by
me duly sworn, did depose and say that (s)he resides at _______________________________ [, [ · ],
[ · ]], that (s)he is ____________________ of Penns Woods Bancorp, Inc. , one
of the parties described in and which executed the above instrument; and that (s)he signed (his)(her) name thereto by like authority.
[DATE]
[NOTARIAL
SEAL]
COMMONWEALTH
OF [____________] |
) |
|
) ss |
COUNTY OF [·] |
) |
On the _______ day of [__________________, __________]
before me personally came _________________________, to me known, who, being by me duly sworn, did depose and say that (s)he resides
at _________________________, that (s)he is ____________________ of [_________________________] as Trustee, one of the parties described
in and which executed the above instrument; and that(s)he signed (his)(her) name thereto by like authority.
[DATE]
[NOTARIAL SEAL]
Expires:
EXHIBIT A
[FORMS
OF CERTIFICATION]
EXHIBIT A.1
[FORM OF
CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE (1) BEARER SECURITY,
SECURITY INITIALLY REPRESENTED BY A TEMPORARY GLOBAL
SECURITY OR (3) INTEREST ON A TEMPORARY GLOBAL SECURITY]
CERTIFICATE
[Insert title or sufficient description of Securities]
This is to certify that the above-captioned Securities
are being acquired by or on behalf of, (or for offer to resell or for resale to), and if this certificate is being delivered in connection
with a payment of interest, were beneficially owned by or on behalf of, (a) a person (other than a financial institution for purposes
of resale during the restricted period) who is not a United States person; or (b) a United States person (other than a financial
institution for purposes of resale during the restricted period) who is (i) a foreign branch of a United States financial institution
or (ii) a United States person acquiring such Securities through the foreign branch of a United States financial institution and
who for purposes of this certification holds such Securities through such financial institution on the date hereof, and, in the case
of either (i) or (ii), such United States financial institution has agreed, for the benefit of the Company, to comply with the requirements
of Section 165(j)(3)(A), (b) or (c) of the Internal Revenue Code of 1986, as from time to time amended, and the regulations
thereunder; or (c) a financial institution for purposes of resale during the restricted period and such financial institution has
not acquired such Securities for purposes of resale directly or indirectly to a United States person or to a person within the United
States or its possessions. If the undersigned is a clearing organization, the undersigned has obtained a similar certificate from its
member organizations on which this certificate is based; provided , however , that if the undersigned has actual knowledge
that the information contained in such a certificate is false (and, absent documentary evidence that the beneficial owner of such Security
is not a United States person, it will be deemed to have actual knowledge that such certificate is false if it has a United States address
for such beneficial owner, other than a financial institution described above), the undersigned will not deliver a Security in temporary
or definitive bearer form to the person who signed such certificate notwithstanding the delivery of such certificate to the undersigned.
As used herein, “United States person”
means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws
of the United States and an estate or trust the income of which is subject to United States federal income taxation regardless of its
source, “United States” means the United States of America (including the States and the District of Columbia), “possessions”
of the United States include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and Northern Mariana Islands,
“restricted period” means the period described in Section 1.163-5(c)(2)(i)(D)(7) of the Treasury Regulations and
“financial institution” means the persons described in Section 1.165-12(c)(1)(v) of the Treasury Regulations.
We undertake to advise you by telex if the above
statement as to beneficial ownership is not correct on the date of delivery of the above-captioned Securities or on the interest payment
date with respect to the above-captioned Securities, as the case may be, as to all of such Securities.
We understand that this certificate may be required
in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof
to any interested party in such proceedings.
Dated: __________________, 20___
[To be dated on or after
__________________, 20___ (the
date determined as provided in the
Indenture)]
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[Name of Person Entitled to Receive
Bearer Security or Interest] |
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(Authorized Signatory) |
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Name: |
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Title: |
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EXHIBIT A.2
[FORM OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR AND CLEARSTREAM, LUXEMBOURG IN
CONNECTION WITH THE EXCHANGE OF A PORTION
OF A TEMPORARY GLOBAL SECURITY] CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that, based on certificates
we have received from each of the persons appearing in our records as persons entitled to a portion of _______________________ principal
amount of the above-captioned Securities (our “Qualified Account Holders”) substantially in the form set out in Exhibit A.1
to the Indenture relating to the above-captioned Securities, such principal amount of Securities (a) is owned by a person (other
than a financial institution for purposes of resale during the restricted period) who is not a United States person; (b) is owned
by a United States person (other than a financial institution for purposes of resale during the restricted period) who is (i) a
foreign branch of a United States financial institution or (ii) a United States person who acquired such Securities through the
foreign branch of a United States financial institution and who for purposes of this certification holds such Securities through such
financial institution on the date hereof and, in either case, such United States financial institution has agreed, for the benefit of
the Company, to comply with the requirements of Section 165(j)(3)(A), (b) or (c) of the Internal Revenue Code of 1986,
as from time to time amended, and the regulations thereunder; or (c) is owned by a financial institution for purposes of resale
during the restricted period and such financial institution has certified that it has not acquired such Securities for purposes of resale
directly or indirectly to a United States person or to a person within the United States or its possessions.
To the extent that we have knowledge that any
of such certificates from a Qualified Account Holder is false and to the extent that we have not received with respect to any Securities
such certificates from Qualified Account Holders, we are not submitting for exchange any portion of the temporary global Security attributable
thereto.
We further certify that as of the date hereof
we have not received any notification from any of our Qualified Account Holders to the effect that the statements made by such Qualified
Account Holders with respect to any portion of the part submitted herewith for exchange are no longer true and cannot be relied upon
as of the date hereof.
As used herein, “United States person”
means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws
of the United States and an estate or trust the income of which is subject to United States federal income taxation regardless of its
source, “United States” means the United States of America (including the States and the District of Columbia), “possessions”
of the United States include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and Northern Mariana Islands,
“restricted period” means the period described in Section 1.163-5(c)(2)(i)(D)(7) of the Treasury Regulations and
“financial institution” means the persons described in Section 1.165-12(c)(l)(v) of the Treasury Regulations.
We understand that this certificate is required
in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof
to any interested party in such proceedings.
Dated: _____________________, 20___
[To be dated no earlier than the Exchange Date]
|
[Euroclear Bank] |
|
[Clearstream Banking, société anonyme] |
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By: |
|
EXHIBIT A.3
[FORM OF
CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM, LUXEMBOURG TO OBTAIN INTEREST]
CERTIFICATE
[Insert title or sufficient description of Securities]
This is to certify that interest payable on the
interest payment date[s] on [insert date(s)] will be paid with respect to __________________________ principal amount of the above-captioned
Securities with respect to which we have received from the persons appearing in our records as being entitled to interest payable on
such date (our “Qualified Account Holders”) certificates substantially in the form set out in Exhibit A.1 to the Indenture
relating to the above-captioned Securities that such Securities (a) are owned by a person (other than a financial institution for
purposes of resale during the restricted period) who is not a United States person; (b) are owned by a United States person (other
than a financial institution for purposes of resale during the restricted period) who is (i) a foreign branch of a United States
financial institution or (ii) a United States person who acquired such Securities through the foreign branch of a United States
financial institution and who for purposes of this certification holds such Securities through such financial institution on the date
hereof and, in either case, such United States financial institution has agreed, for the benefit of the Company, to comply with the requirements
of Section 165(j)(3)(A), (b) or (c) of the Internal Revenue Code of 1986, as from time to time amended, and the regulations
thereunder; or (c) are owned by a financial institution for purposes of resale during the restricted period and such financial institution
has certified that it has not acquired such Securities for purposes of resale directly or indirectly to a United States person or to
a person within the United States or its possessions.
To the extent that we have knowledge that any
of such certificates from a Qualified Account Holder is false and to the extent that we have not received with respect to any Securities
such certificates from Qualified Account Holders, we are not requesting that payment be made for interest with respect thereto.
We further certify that as of the date hereof
we have not received any notification from any of our Qualified Account Holders to the effect that the statements made by such Qualified
Account Holders with respect to any interest payment on any portion of the principal amount of the Securities referred to above are no
longer true and cannot be relied upon as of the date hereof.
We undertake that any interest received by us
and not paid as provided above shall be returned to the Trustee for the above-captioned Securities immediately prior to the expiration
of two years after such interest payment date in order to be repaid by such Trustee to the above issuer at the end of two years after
such interest payment date.
As used herein, “United States person”
means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws
of the United States and an estate or trust the income of which is subject to United States federal income taxation regardless of its
source, “United States” means the United States of America (including the States and the District of Columbia), “possessions”
of the United States include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and Northern Mariana Islands,
“restricted period” means the period described in Section 1.163-5(c)(2)(i)(D)(7) of the Treasury Regulations and
“financial institution” means the persons described in Section 1.165-12(c)(l)(v) of the Treasury Regulations.
We understand that this certificate is required
in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof
to any interested party in such proceedings.
Dated: _____________________, 20___
[To be dated on or after the most recent relevant
interest payment date]
|
|
[Euroclear Bank] |
|
[Clearstream Banking, société anonyme] |
|
|
By: |
|
Exhibit 5.1
111 N. Sixth Street
P.O. Box 679
Reading, PA 19603
(610) 478-2000
www.stevenslee.com
June 28, 2023
Board of Directors
Penns Woods Bancorp, Inc.
300 Market Street, P.O. Box 967
Williamsport, Pennsylvania 17703
Re: Form S-3 Registration Statement
Ladies and Gentlemen:
We have acted as counsel to Penns Woods Bancorp, Inc.
(the “Company”) in connection with the registration by the Company of up to an aggregate of $85,000,000 of securities
(the “Securities”), consisting of any of the following: (i) shares of common stock, $5.55 par value per share,
of the Company (“Common Stock”); (ii) shares of preferred stock, no par value, of the Company (“Preferred
Stock”); (iii) debt securities of the Company, whether senior or subordinated (collectively, “Debt Securities”);
(iv) Preferred Stock represented by depositary receipts (the “Depositary Shares”); (v) warrants to purchase
other Securities (“Warrants”); and (vi) subscription rights to purchase other Securities (the “Subscription
Rights”). The Securities are being registered under a Registration Statement on Form S-3 (the “Registration Statement”),
filed by the Company on June [__], 2023 with the Securities and Exchange Commission (the “Commission”) pursuant
to the Securities Act of 1933, as amended (the “Act”). This opinion letter is Exhibit 5.1 to the Registration
Statement and is being furnished in connection with the requirements of Item 601(b)(5) of Commission Regulation S-K.
The Securities are to be issued, separately or
together, in one or more series and are to be sold from time to time pursuant to Rule 415 under the Act as set forth in the Registration
Statement, the Prospectus contained therein (the “Prospectus”), and any amendments or supplements thereto.
We have examined originals, or copies certified
or otherwise identified to our satisfaction, of such corporate records, documents, agreements, instruments and certificates of public
officials of the Commonwealth of Pennsylvania and of officers of the Company as we deemed necessary or appropriate to express the opinions
set forth herein.
Allentown
• Bergen County • Bala
Cynwyd • Cleveland • Fort
Lauderdale • Harrisburg • Lancaster
• New York
Philadelphia • Princeton • Reading
• Rochester • Scranton
• Valley Forge • Wilkes-Barre
• Wilmington
A PROFESSIONAL CORPORATION
Board of Directors
June 28, 2023
Page 2
Based upon the foregoing, and subject to the assumptions,
exceptions, qualifications and limitations stated herein, it is our opinion that, as of the date hereof:
1. When
the necessary corporate action on the part of the Company has been taken to authorize the issuance and sale of such shares of Common
Stock proposed to be sold by the Company, and when such shares of Common Stock shall have been issued and delivered in accordance with
the applicable underwriting or other agreement against payment therefor, or upon conversion or exercise of any security offered under
the Registration Statement (the “Offered Security”) in accordance with terms of such Offered Security or the instrument
governing such Offered Security providing for such conversion or exercise as approved by the Company’s board of directors, for
the consideration approved by the Company’s board of directors, such shares of Common Stock will be validly issued, fully-paid
and nonassessable.
2. Upon
designation of the relative rights, preferences and limitations of any series of Preferred Stock by the Company’s board of directors
and the proper filing with the Department of State of the Commonwealth of Pennsylvania of an amendment to the Company’s articles
of incorporation relating to such series of Preferred Stock, all necessary corporate action on the part of the Company shall have been
taken to authorize the issuance and sale of shares of such series of Preferred Stock proposed to be sold by the Company, and when such
shares of Preferred Stock are issued and delivered in accordance with the applicable underwriting or other agreement against payment
therefor, such shares of Preferred Stock will be validly issued, fully paid and nonassessable.
3. When
(i) any indenture between the Company and a trustee, and any supplemental indenture thereto, to be entered into in connection with
the issuance of any Debt Securities shall have been duly authorized, executed, and delivered by a trustee and the Company, (ii) the
specific terms of a particular series of Debt Securities shall have been duly authorized and established in accordance with the applicable
indenture, and (iii) such Debt Securities shall have been duly authorized, executed, authenticated, issued, and delivered in accordance
with such 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.
4. When
(i) a deposit agreement (a “Deposit Agreement”) relating to Depositary Shares shall have been duly authorized
by all necessary corporate action of the Company, and duly executed and delivered, (ii) the specific terms establishing the depositary
receipts representing the Depositary Shares (the “Depositary Receipts”) shall have been duly established in accordance
with the terms of the Deposit Agreement, (iii) a series of Preferred Stock with respect to which Depositary Shares are issued shall
have been duly established in accordance with the Company’s articles of incorporation, including an amendment to the Company’s
articles of incorporation relating to such series of Preferred Stock, and all necessary corporate action on the part of the Company shall
have been taken to authorize such series of Preferred Stock, and (iv) such Depositary Shares have been duly executed, authenticated,
issued and delivered against payment therefor in accordance with such Depositary Agreement and in the manner contemplated by the Registration
Statement and by such corporate action, the Depositary Shares will be validly issued, and will entitle the holders thereof to the rights
specified in the Depositary Receipts and such Deposit Agreement for such Depositary Receipts.
Board of Directors
June 28, 2023
Page 3
5. When
(i) a warrant agreement (a “Warrant Agreement”) shall have been duly authorized by all necessary corporate action
of the Company, and duly executed and delivered, (ii) the specific terms of a particular Warrant shall have been duly established
in accordance with such Warrant Agreement, and authorized by all necessary corporate action of the Company, and (iii) such Warrant
shall have been duly executed, authenticated, issued, and delivered against payment therefor in accordance with such Warrant Agreement,
such Warrant will be a legally valid and binding obligation of the Company, enforceable against the Company in accordance with the terms
thereof.
6. With
respect to any Subscription Rights, when (i) the Company’s board of directors has taken all necessary corporate action to
approve the issuance and terms of such Subscription Rights, the terms, execution and delivery of the subscription agreement relating
to the Subscription Rights (a “Subscription Rights Agreement”), and other matters relating thereto, (ii) the
Subscription Rights Agreement has been duly authorized and validly executed and delivered, and (c) such Subscription Rights shall
have been duly executed, issued and delivered in accordance with the provisions of the applicable Subscription Rights Agreement and the
applicable purchase, underwriting, or similar agreement approved by the Company’s board of directors, upon payment of the consideration
payable therefor, such Subscription Rights will constitute valid and binding obligations of the Company, enforceable against the Company
in accordance with the terms thereof.
In
addition to any other assumptions, comments, qualifications, limitations and exceptions set forth above, the opinions set forth
herein are further limited by, subject to and based upon the following:
Our opinions herein reflect only the application
of applicable laws of the Commonwealth of Pennsylvania and, with respect to the opinions expressed in opinion paragraphs (3) and
(4) above, the State of New York that, in our experience, are normally applicable to transactions of the type contemplated by the
Registration Statement. The opinions set forth herein are made as of the date hereof and are subject to, and may be limited by, future
changes in the factual matters set forth herein, and we undertake no duty to advise you of the same. The opinions expressed herein are
based upon the law in effect (and published or otherwise generally available) on the date hereof, which laws are subject to change with
possible retroactive effect, and we assume no obligation to revise or supplement these opinions should such law be changed by legislative
action, judicial decision or otherwise. In delivering this opinion, we have not considered, and hereby disclaim any opinion as to,
the application or impact of any laws, cases, decisions, rules or regulations of any other jurisdiction, court or administrative
agency.
The opinions set forth above are subject to and
may be limited by: (i) applicable bankruptcy, insolvency, reorganization, receivership, moratorium, receivership, rearrangement,
liquidation, conservatorship and other similar laws or equitable principles affecting or related to the rights and remedies of creditors
generally, including, without limitation, laws relating to fraudulent conveyances, preferences and equitable subordination;
(ii) general principles of equity (regardless of whether considered in a proceeding in equity or at law); (iii) public policy
considerations which may limit the rights of parties to obtain remedies; (iv) an implied covenant of good faith and fair dealing;
and (v) the availability of equitable remedies, including, without limitation, specific performance or injunctive relief.
Board of Directors
June 28, 2023
Page 4
We have assumed that, at or prior to the time
of the delivery of any such Security, (i) the board of directors shall have duly established the terms of such Security and
duly authorized the issuance and sale of such Security and such authorization shall not have been modified or rescinded;
(ii) the Company shall remain validly existing as a corporation in good standing under the laws of the Commonwealth of
Pennsylvania; (iii) the Registration Statement shall have been declared effective and such effectiveness shall not have been
terminated or rescinded, and that a prospectus supplement shall have been prepared and filed with the Commission describing the
Securities offered thereby; (iv) the indentures and the Debt Securities 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 assumed that the execution, delivery and
performance by the Company of any Security whose terms are established subsequent to the date hereof (i) require no action by or
in respect of, or filing with, any governmental body, agency or official, except as set forth in opinion paragraph (2) and (ii) do
not contravene, or constitute a default under, any public policy, any provision of applicable law or regulation or any judgment, injunction,
order or decree or any agreement or other instrument binding upon the Company.
You have informed us that you intend to issue
the Securities from time to time on a delayed or continuous basis, and this opinion is limited to the laws, including the rules and
regulations, as in effect on the date hereof.
In our review, we have assumed (i) the legal
capacity of all natural persons, (ii) the genuineness of all signatures, (iii) the authenticity of all documents submitted
to us as originals, (iv) the conformity to original documents of all documents submitted to us as facsimile, electronic, certified
or photostatic copies, and the authenticity of the originals of such copies, (v) the proper filing or recording of all notices,
certificates, and documents where such filing and recording is necessary, and (vi) all statements in certificates of public officials
and officers of the Company that we reviewed were and are accurate
As to any facts material to the opinions provided
herein that we did not independently establish or verify, we have relied upon certificates of public officials and statements and representations
of officers and other representatives of the Company, all of which we assume to be true, correct and complete. We have also assumed that
all records and other information made available to us by the Company, and upon which we relied, are complete in all respects.
The opinions set forth herein are limited to the
matters expressly set forth herein and no opinion may be inferred or implied beyond the matters expressly stated herein, and such opinions
must be read in conjunction with the assumptions, limitations, exceptions, and qualifications set forth above.
Board of Directors
June 28, 2023
Page 5
We hereby consent to be named in the Registration
Statement and in the Prospectus as attorneys who passed upon the legality of the Securities and to the filing of a copy of this opinion
as an exhibit to the Registration Statement. By giving such consent, we do not hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Act or the rules and regulations of the Commission.
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Very truly yours, |
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STEVENS & LEE, P.C. |
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/s/ Stevens & Lee, P.C. |
/aml
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We consent to the incorporation by reference in
this registration statement on Form S-3 and the related prospectus of Penns Woods Bancorp, Inc. and subsidiaries for the registration
of common shares, preferred shares, depository shares, warrants, debt securities, and subscription rights of our report dated March 15,
2023, relating to the consolidated financial statements and the effectiveness of internal controls over financial reporting of Penns Woods
Bancorp, Inc. and subsidiaries appearing in the 2022 Annual Report to Shareholders and incorporated by reference in the Annual Report
on Form 10-K of Penns Woods Bancorp, Inc. and subsidiaries for the year ended December 31, 2022.
We also consent to the reference to us under the
heading “Experts” in the prospectus and proxy statement, which is part of this registration statement.
/s/S.R. Snodgrass, P.C.
Cranberry Township, Pennsylvania
June 29, 2023
PITTSBURGH,
PA |
PHILADELPHIA,
PA |
WHEELING,
WV |
STEUBENVILLE,
OH |
|
|
|
|
2009 Mackenzie Way •
Suite 340 |
2100 Renaissance Blvd.
• Suite 110 |
980 National Road |
511 N. Fourth Street |
Cranberry Township, PA
16066 |
King of Prussia, PA 19406 |
Wheeling, WV 26003 |
Steubenville, OH 43952 |
(724) 934-0344 |
(610) 278-9800 |
(304) 233-5030 |
(304) 233-5030 |
S.R. Snodgrass, P.C. d/b/a S.R.
Snodgrass, A.C. in West Virginia
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Penns Woods Bancorp, Inc.
(Exact Name of Registrants 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(1) |
|
Proposed
Maximum
Offering
Price Per
Unit(1) |
|
Maximum
Aggregate
Offering
Price(1)(2) |
|
Fee
Rate |
|
Amount of
Registration
Fee(1)(2) |
|
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 |
|
Common Stock, $5.55 par
value per share |
|
457(o) |
|
- |
|
- |
|
- |
|
- |
|
- |
|
|
|
|
|
|
|
|
|
|
Equity |
|
Preferred Stock, no par
value per share |
|
457(o) |
|
- |
|
- |
|
- |
|
- |
|
- |
|
|
|
|
|
|
|
|
|
|
Equity |
|
Depositary Shares |
|
457(o) |
|
- |
|
- |
|
- |
|
- |
|
- |
|
|
|
|
|
|
|
|
|
|
Debt |
|
Debt Securities(3) |
|
457(o) |
|
- |
|
- |
|
- |
|
- |
|
- |
|
|
|
|
|
|
|
|
|
|
Other |
|
Warrants |
|
457(o) |
|
- |
|
- |
|
- |
|
- |
|
- |
|
|
|
|
|
|
|
|
|
|
Other |
|
Subscription
Rights |
|
457(o) |
|
- |
|
- |
|
- |
|
- |
|
- |
|
|
|
|
|
|
|
|
|
|
Other |
|
Unallocated
(Universal) Shelf |
|
457(o) |
|
- |
|
- |
|
$85,000,000 |
|
0.0001102 |
|
$9,367 |
|
|
|
|
|
|
|
|
Fees
Previously Paid |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
|
|
- |
|
|
|
|
|
|
|
|
|
|
Total Offering Amounts |
|
|
|
$85,000,000 |
|
|
|
$9,367 |
|
|
|
|
|
|
|
|
|
|
Total Fees Previously Paid |
|
|
|
|
|
|
|
- |
|
|
|
|
|
|
|
|
|
|
Total Fee Offsets |
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- |
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Net Fee Due |
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$9,367 |
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(1) |
There are being registered hereunder such indeterminate number of securities as may be sold by the registrant from time to time, which together shall have an aggregate initial offering price not to exceed $85,000,000. Any securities registered hereunder may be sold separately or as units with the other securities registered hereunder. The proposed maximum offering price per unit will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the securities registered hereunder. The securities registered hereunder also include such indeterminate number of shares of common stock and preferred stock as may be issued upon conversion of or exchange for preferred stock or other securities that provide for conversion or exchange or pursuant to the antidilution provisions of any of such securities. In addition, pursuant to Rule 416 of the rules and regulations under the Securities Act, the shares being registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions. |
(2) |
Estimated solely for the purpose of determining the registration fee in accordance with Rule 457(o) of the rules and regulations under the Securities Act and based upon the maximum aggregate offering price of all securities being registered. |
(3) |
The debt securities covered by this registration statement may be senior and/or subordinated debt securities of Penns Woods Bancorp, Inc. |
Penns Woods Bancorp (NASDAQ:PWOD)
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Penns Woods Bancorp (NASDAQ:PWOD)
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