Table of Contents
As filed with the Securities and Exchange Commission
on November 3, 2023.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
___________________________
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
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SONOMA PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware |
(State or other jurisdiction of incorporation or organization) |
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68-0423298 |
(I.R.S. Employer Identification Number) |
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5445 Conestoga Court, Suite 150
Boulder, CO 80301
(800) 759-9305 |
(Address, including zip code, and telephone number,
including area code, of registrant’s principal
executive offices) |
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Amy Trombly
Chief Executive Officer
5445 Conestoga Court, Suite 150
Boulder, CO 80301
(800) 759-9305 |
(Name, address, including zip code, and telephone number,
including area code, of agent for service) |
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Approximate date of commencement of proposed
sale to the public: From time to time after this registration statement becomes effective, as determined by market conditions and
other factors.
If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
If any of the securities being registered on
this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box: ☒
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to
a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ |
Accelerated filer ☐ |
Non-accelerated filer ☒ |
Smaller reporting company ☒ |
Emerging growth company ☐ |
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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 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The information in this prospectus
is not complete and may be changed. We may not sell these securities until the Registration Statement filed with the Securities and Exchange
Commission is declared effective. This prospectus is not an offer to sell these securities, and we are not soliciting offers to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED NOVEMBER
3, 2023.
PROSPECTUS
$51,300,000
SONOMA PHARMACEUTICALS, INC.
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
We may, from time to time, offer and sell common
stock, preferred stock, debt securities or warrants, either separately or in units, in one or more offerings. The preferred stock and
warrants may be convertible into or exercisable or exchangeable for common or preferred stock. We will specify in the accompanying prospectus
supplement more specific information about any such offering. The aggregate initial offering price of all securities sold under this prospectus
will not exceed $51,300,000, including the U.S. dollar equivalent if the public offering of any such securities is denominated in
one or more foreign currencies, foreign currency units or composite currencies.
We may offer these securities independently or
together in any combination for sale directly to investors or through underwriters, dealers or agents. We will set forth the names of
any underwriters, dealers or agents and their compensation in the accompanying prospectus supplement.
This prospectus may not be used to sell any of
these securities unless accompanied by a prospectus supplement.
Our common stock is traded on the Nasdaq Capital
Market under the symbol “SNOA.” On October 30, 2023, the last reported sale price for our common stock was $0.18 per share.
The aggregate market value of our outstanding voting and non-voting equity held by non-affiliates on October 30, 2023 was $2,417,832 based
on a share price of $0.18. As of the date hereof, during the prior 12 calendar month period, we have offered $3,051,726 of securities
pursuant to a previously filed Form S-3 pursuant to General Instruction I.B.6. Pursuant to General Instruction I.B.6 of Form S-3, in no
event will we sell securities registered on this registration statement in a public primary offering with a value exceeding more than
one-third of the aggregate market value of the voting and non-voting common equity in any 12 month period so long as our public float
remains below $75 million.
Investing in our securities involves a
high degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk
Factors” contained in this prospectus beginning on page 4 and any applicable prospectus supplement, and under similar
headings in the other documents that are incorporated by reference into this prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon
the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
Subject to completion, the date of this prospectus
is , 2023.
TABLE OF CONTENTS
You should rely only on the information incorporated
by reference or provided in this prospectus, any prospectus supplement and the registration statement. We have not authorized anyone else
to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it.
We are not making an offer to sell these securities in any state where the offer or sale is not permitted. You should assume that the
information in this prospectus and any prospectus supplement, or incorporated by reference, is accurate only as of the dates of those
documents. Our business, financial condition, results of operations and prospects may have changed since those dates.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
that we filed with the Securities and Exchange Commission, or SEC, using a “shelf” registration, or continuous offering, process.
Under this shelf registration process, we may, from time to time, issue and sell any combination of preferred stock, common stock or warrants,
either separately or in units, in one or more offerings with a maximum aggregate offering price of $51,300,000, including the U.S. dollar
equivalent if the public offering of any such securities is denominated in one or more foreign currencies, foreign currency units or composite
currencies.
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 that will contain specific information
about the terms of that offering and the offered securities. Any prospectus supplement may also add, update or change information contained
in this prospectus. Any statement that we make in this prospectus will be modified or superseded by any inconsistent statement made by
us in a prospectus supplement. The registration statement we filed with the SEC includes exhibits that provide more detail of the matters
discussed in this prospectus. You should read this prospectus and the related exhibits filed with the SEC and any prospectus supplement,
together with additional information described under the heading “Where You Can Find More Information,” before making
your investment decision.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE
A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
Neither we, nor any agent, underwriter or dealer
has authorized any person to give any information or to make any representation other than those contained or incorporated by reference
in this prospectus, any applicable prospectus supplement prepared by or on behalf of us or to which we have referred you. This prospectus
or any applicable supplement to this prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities
other than the registered securities to which they relate, nor do this prospectus or any applicable supplement to this prospectus constitute
an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction.
You should not assume that the information contained
in this prospectus or any applicable prospectus supplement is accurate on any date subsequent to the date set forth on the front of the
document or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated
by reference, even though this prospectus or any applicable prospectus supplement is delivered, or securities are sold, on a later date.
We may sell the securities directly to or through underwriters, dealers
or agents. We, and our underwriters or agents, reserve the right to accept or reject all or part of any proposed purchase of securities.
If we do offer securities through underwriters, dealers or agents, we will include in any applicable prospectus supplement:
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the names of those underwriters, dealers or agents; |
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applicable fees, discounts, and commissions to be paid to them; |
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details regarding over-allotment options, if any; and |
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the net proceeds to us. |
PROSPECTUS SUMMARY
This summary highlights information contained
elsewhere in this prospectus or incorporated by reference. This summary does not contain all of the information you should consider before
buying shares of our common stock, preferred stock, warrants, or units or any combination of these securities. You should read the entire
prospectus carefully, especially the risks of investing in our securities that we describe under “Risk Factors” and our consolidated
financial statements appearing in our annual and periodic reports incorporated in this prospectus by reference, before deciding to invest
in our securities. Unless the context requires otherwise, references to “Sonoma,” “the Company,” “the Registrant,”
“we,” “our” and “us” refer to Sonoma Pharmaceuticals, Inc.
Company Overview
We are a global healthcare leader for developing
and producing stabilized hypochlorous acid, or HOCl, products for a wide range of applications, including wound care, eye care, oral care,
dermatological conditions, podiatry, animal health care and non-toxic disinfectants. Our products reduce infections, itch, pain, scarring
and harmful inflammatory responses in a safe and effective manner. In-vitro and clinical studies of HOCl show it to have impressive antipruritic,
antimicrobial, antiviral and anti-inflammatory properties. Our stabilized HOCl immediately relieves itch and pain, kills pathogens and
breaks down biofilm, does not sting or irritate skin and oxygenates the cells in the area treated assisting the body in its natural healing
process. We sell our products either directly or via partners in 55 countries worldwide.
We originally incorporated as Micromed Laboratories,
Inc. in 1999 under the laws of the State of California. We changed our name to Oculus Innovative Sciences, Inc. in 2001. In December 2006
we reincorporated under the laws of the State of Delaware, and in December 2016 we changed our name to Sonoma Pharmaceuticals, Inc. In
2022, we relocated our principal executive offices from 645 Molly Lane, Suite 150, Woodstock, Georgia, 30189 to 5445 Conestoga Court,
Suite 150, Boulder, Colorado 80301. We have two active wholly-owned subsidiaries: Oculus Technologies of Mexico, S.A. de C.V., and Sonoma
Pharmaceuticals Netherlands, B.V. Our fiscal year end is March 31. Our corporate telephone number is (800) 759-9305. Our websites are
www.sonomapharma.com and www.sonomapharma.eu. The websites and any information contained therein or connected thereto is not intended
to be incorporated into this report.
The Securities We May Offer
We may offer and sell, from time to time, in one
or more offerings, any combination of shares of our common stock, preferred stock, debt securities and warrants to purchase any of such
securities, up to a total aggregate offering price of $51,300,000 under this prospectus, together with any applicable prospectus supplement,
at prices and on terms to be determined by market conditions at the time of the relevant offering. This prospectus provides you with a
general description of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide
a prospectus supplement that will describe the specific amounts, prices and other important terms of the securities, including, to the
extent applicable:
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designation or classification; |
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aggregate offering price; |
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rates and times of payment of dividends, if any; |
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redemption, conversion, exchange or sinking fund terms, if any; |
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conversion or exchange prices or rates, if any, and, if applicable, any provisions for changes to or adjustments in the conversion or exchange prices or rates and in the securities or other property receivable upon conversion or exchange; |
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ranking, if applicable; |
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restrictive covenants, if any; |
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voting or other rights, if any; and |
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important United States federal income tax considerations. |
The prospectus supplement may also add, update
or change information contained in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement
will offer a security that is not registered and described in this prospectus at the time of the effectiveness of the registration statement
of which this prospectus is a part.
This prospectus may not be used to consummate
a sale of securities unless it is accompanied by a prospectus supplement.
We may sell the securities directly to investors
or through underwriters, dealers or agents. We, and our underwriters or agents, reserve the right to accept or reject all or part of any
proposed purchase of securities. If we do offer securities through underwriters or agents, we will include in the applicable prospectus
supplement:
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the names of those underwriters or agents; |
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applicable fees, discounts and commissions to be paid to them; |
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details regarding over-allotment options, if any; and |
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the estimated net proceeds to us. |
RISK FACTORS
Investing in our securities involves a high degree
of risk. You should carefully review the risks and uncertainties described herein and under the heading “Risk Factors” contained
in the applicable prospectus supplement, and under similar headings in our Annual Report on Form 10-K for the fiscal year ended March
31, 2023, as updated by our quarterly and other reports and documents that are incorporated by reference into this prospectus, before
deciding whether to purchase any of the securities being registered pursuant to the registration statement of which this prospectus is
a part. Each of the risk factors could adversely affect our business, operating results and financial condition, as well as adversely
affect the value of an investment in our securities, and the occurrence of any of these risks might cause you to lose all or part of your
investment. Additional risks not presently known to us or that we currently believe are immaterial may also significantly impair our business
operations.
Our failure to maintain compliance with
Nasdaq’s continued listing requirements could result in the delisting of our common stock.
On September 22, 2023, we received a letter from
The Nasdaq Stock Market LLC (“Nasdaq”) indicating that we are not in compliance with Nasdaq Listing Rule 5550(a)(2), which
requires companies listed on The Nasdaq Stock Market to maintain a minimum bid price of $1 per share for continued listing. Nasdaq’s
letter has no immediate impact on the listing of our common stock, which will continue to be listed and traded on Nasdaq, subject to our
compliance with the other continued listing requirements. Nasdaq has granted us a period of 180 calendar days, or until March 20, 2024,
to regain compliance with the rule. We may regain compliance at any time during this compliance period if the minimum bid price for our
common stock is at least $1 for a minimum of ten consecutive business days.
Until Nasdaq has reached a final determination
that we have regained compliance with all of the applicable continued listing requirements, there can be no assurances regarding the continued
listing of our common stock or warrants on Nasdaq. The delisting of our common stock and warrants from Nasdaq would have a material adverse
effect on our access to capital markets, and any limitation on market liquidity or reduction in the price of its common stock as a result
of that delisting would adversely affect our ability to raise capital on terms acceptable to the Company, if at all.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
When used in this prospectus, the words “expect,”
“believe,” “anticipate,” “estimate,” “may,” “could,” “intend,”
and similar expressions are intended to identify forward-looking statements. These statements are subject to known and unknown risks and
uncertainties that could cause actual results to differ materially from those projected or otherwise implied by the forward-looking statements.
These forward-looking statements speak only as of the date of this prospectus. Given these risks and uncertainties, you should not place
undue reliance on these forward-looking statements. We have discussed many of these risks and uncertainties in greater detail in this
prospectus under the heading “Risk Factors.” Additional cautionary statements or discussions of risks and uncertainties that
could affect our results or the achievement of the expectations described in forward-looking statements may also be contained in the documents
we incorporate by reference into this prospectus.
These forward-looking statements speak only as
of the date of this prospectus. We expressly disclaim any obligation or undertaking to release publicly any updates or revisions to any
forward-looking statements contained herein to reflect any change in our expectations with regard thereto or any change in events, conditions
or circumstances on which any such statement is based. You should, however, review additional disclosures we make in our Annual Report
on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K filed with the SEC.
USE OF PROCEEDS
Unless we state otherwise in the accompanying
prospectus supplement, we intend to use the net proceeds from the sale of the securities offered by this prospectus for general corporate
purposes. General corporate purposes may include additions to working capital, research and development, financing of capital expenditures,
and future acquisitions and strategic investment opportunities. Pending the application of net proceeds, we expect to invest the net proceeds
in interest-bearing securities.
DILUTION
We will set forth in a prospectus supplement the
following information regarding any material dilution of the equity interests of investors purchasing securities in an offering under
this prospectus:
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the net tangible book value per share of our equity securities before and after the offering; |
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the amount of the increase in such net tangible book value per share attributable to the cash payments made by purchasers in the offering; and |
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the amount of the immediate dilution from the public offering price
which will be absorbed by such purchasers.
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DIVIDEND POLICY
We have not declared or paid dividends to stockholders since inception
and do not plan to pay cash dividends in the foreseeable future. We currently intend to retain earnings, if any, to finance our growth.
PLAN OF DISTRIBUTION
We may sell the securities offered by this prospectus
to one or more underwriters or dealers for public offering and sale by them or to investors directly or through agents. The accompanying
prospectus supplement will set forth the terms of the offering and the method of distribution and will identify any firms acting as underwriters,
dealers or agents in connection with the offering, including:
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the name or names of any underwriters, dealers or agents; |
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the purchase price of the securities and the proceeds to us from the sale; |
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any underwriting discounts and other items constituting compensation to underwriters, dealers or agents; |
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any public offering price; |
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any discounts or concessions allowed or re-allowed or paid to dealers; and |
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any securities exchange or market on which the securities offered in the prospectus supplement may be listed. |
Only those underwriters identified in such
prospectus supplement are deemed to be underwriters in connection with the securities offered in the prospectus supplement.
The distribution of the securities may be effected
from time to time in one or more transactions at a fixed price or prices, which may be changed, or at prices determined as the applicable
prospectus supplement specifies. The securities may be sold through a rights offering, forward contracts or similar arrangements. In connection
with the sale of the securities, underwriters, dealers or agents may be deemed to have received compensation from us in the form of underwriting
discounts or commissions and also may receive commissions from securities purchasers for whom they may act as agent. Underwriters may
sell the securities to or through dealers, and the dealers may receive compensation in the form of discounts, concessions or commissions
from the underwriters or commissions from the purchasers for whom they may act as agent. Some of the underwriters, dealers or agents who
participate in the securities distribution may engage in other transactions with, and perform other services for, us or our subsidiaries
in the ordinary course of business.
We will provide in the applicable prospectus supplement
information regarding any underwriting discounts or other compensation that we pay to underwriters or agents in connection with the securities
offering, and any discounts, concessions or commissions which underwriters allow to dealers. Underwriters, dealers and agents participating
in the securities distribution may be deemed to be underwriters, and any discounts and commissions they receive and any profit they realize
on the resale of the securities may be deemed to be underwriting discounts and commissions under the Securities Act of 1933. Underwriters
and their controlling persons, dealers and agents may be entitled, under agreements entered into with us, to indemnification against and
contribution toward specific civil liabilities, including liabilities under the Securities Act.
The securities may or may not be listed on a national
securities exchange. In connection with an 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 bids or purchases made for the purpose of preventing or retarding a decline in the market price of the securities while an offering
is in progress. The underwriters also may impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a
portion of the underwriting discount received by it because the underwriters have repurchased securities sold by or for the account of
that underwriter in stabilizing or short-covering transactions. 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.
DESCRIPTION OF COMMON STOCK
This section describes the general terms and provisions
of the shares of our common stock. This description is only a summary and is qualified in its entirety by reference to the description
of our common stock incorporated by reference in this prospectus. A copy of our restated certificate of incorporation, as amended, and
our amended and restated bylaws, as amended, has been incorporated by reference from our filings with the SEC as exhibits to the registration
statement of which this prospectus forms a part. Our common stock and the rights of the holders of our common stock are subject to the
applicable provisions of the Delaware General Corporation Law, which we refer to as “Delaware law,” our restated certificate
of incorporation, as amended, our amended and restated bylaws, as amended, the rights of the holders of our preferred stock, if any, as
well as some of the terms of our outstanding indebtedness. See “Where You Can Find More Information.”
We have 24,000,000 shares of authorized common
stock, par value $0.0001 per share. As of October 30, 2023, there were 13,677,889 shares of common stock issued and outstanding. All outstanding
shares of common stock are fully paid and nonassessable, and the shares of common stock offered, when issued, will be fully paid and nonassessable.
The following description of our common stock,
and any description of our common stock in a prospectus supplement, may not be complete and is subject to, and qualified in its entirety
by reference to, Delaware law and the actual terms and provisions contained in our restated certificate of incorporation and our amended
and restated bylaws, each as amended from time to time.
Voting Rights: Unless otherwise
provided by law or provided in our restated certificate of incorporation, as amended, each holder of common stock is entitled to one vote
for each share of common stock held on all matters submitted to a vote of stockholders. At a meeting of stockholders at which a quorum
is present, an affirmative vote of the majority of the shares entitled to vote on a matter and that are represented either in person or
by proxy decides all questions, unless the question is one upon which by express provision of law or our restated certificate of incorporation
or of our amended and restated bylaws, a different vote is required.
Dividends: Dividends upon the
capital stock of the corporation may be declared by our board of directors at any regular or special meeting or by unanimous written consent,
subject to any restrictions contained under Delaware law or the provisions of the restated certificate of incorporation, as amended, if
any. However, before payment of any dividend, the board of directors may set aside out of the funds of the corporation available for dividends
such sum or sums that the directors from time to time think proper as a reserve or reserves. If and when a dividend is declared by the
board of directors, the holders of shares of common stock shall be entitled to receive out of the assets of the corporation which are
by law available, dividends payable in cash, in property or in shares of capital stock, subject to the preferential rights of the holders
of preferred stock.
Preemptive Rights: The holders
of common stock do not have preemptive or conversion rights or other subscription rights.
Redemption: Shares of our common
stock are not subject to redemption by operation of a sinking fund or otherwise.
Liquidation Rights: Upon our
liquidation, dissolution or winding-up, and after distribution in full of preferential amounts, if any, to be distributed to the holders
of shares of preferred stock, the holders of common stock are entitled, unless otherwise provided by law or provided in our restated certificate
of incorporation, as amended, to receive all of the remaining assets of the corporation of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of common stock held by them respectively.
Listing: Our common stock is
traded on the Nasdaq Capital Market under the symbol “SNOA.”
Transfer Agent and Registrar: The
transfer agent for our common stock is Computershare, Inc. located at 462 South 4th Street, Suite 1600, Louisville, KY
40202. Its telephone number is 1-888-647-8901.
DESCRIPTION
OF PREFERRED STOCK
This section describes the general terms of our
preferred stock to which any prospectus supplement may relate. A prospectus supplement will describe the terms relating to any preferred
stock to be offered by us in greater detail and may provide information that is different from terms described in this prospectus. A copy
of our restated certificate of incorporation, as amended, and our amended and restated bylaws, as amended, has been incorporated by reference
from our filings with the SEC as exhibits to the registration statement of which this prospectus forms a part. A certificate of designation
or amendment to the restated certificate of incorporation, as amended, will specify the terms of the preferred stock being offered, and
will be filed or incorporated by reference as an exhibit to the registration statement before the preferred stock is issued. The following
description of our preferred stock, and any description of the preferred stock in a prospectus supplement may not be complete and is subject
to, and qualified in its entirety by reference to, Delaware law and the actual terms and provisions contained in our restated certificate
of incorporation and our amended and restated bylaws, each as amended from time to time.
Under our restated certificate of incorporation,
as amended, we have the authority to issue 714,286 shares of preferred stock, par value $0.0001 per share, which are issuable in series
on terms to be determined by our board of directors. Accordingly, our board of directors is authorized, without action by the stockholders,
to issue preferred stock from time to time with such dividend, liquidation, conversion, voting, redemption, sinking fund and other rights
and restrictions as it may determine. All shares of any one series of our preferred stock will be identical, except that shares of any
one series issued at different times may differ as to the dates from which dividends may be cumulative, as described in the applicable
prospectus supplement. As of the date of this prospectus, there were no outstanding shares of our preferred stock.
Terms of Preferred Stock: Unless
provided in a prospectus supplement, the shares of our preferred stock to be issued will have no preemptive rights. Any prospectus supplement
offering our preferred stock will furnish the following information with respect to the preferred stock offered by that prospectus supplement:
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the distinctive designation of each series and the number of shares that will constitute the series; |
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the voting rights, if any, of shares of the series and the terms and conditions of the voting rights; |
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the dividend rate on the shares of the series, the dates on which dividends are payable, any restriction, limitation or condition upon the payment of dividends, whether dividends will be cumulative, and the dates from and after which dividends shall accumulate; |
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the prices at which, and the terms and conditions on which, the shares of the series may be redeemed, if the shares are redeemable; |
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the terms and conditions of a sinking or purchase fund for the purchase or redemption of shares of the series, if such a fund is provided; |
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any preferential amount payable upon shares of the series in the event of the liquidation, dissolution or winding up of, or upon the distribution of any of our assets; and |
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the prices or rates of conversion or exchange at which, and the terms and conditions on which, the shares of the series may be converted or exchanged into other securities, if the shares are convertible or exchangeable. |
If our board of directors decides to issue any
shares of preferred stock, it may discourage or make more difficult a merger, tender offer, business combination or proxy contest, assumption
of control by a holder of a large block of our securities, or the removal of incumbent management, even if these events were favorable
to the interests of stockholders. Our board of directors, without stockholder approval, may issue preferred stock with voting and conversion
rights and dividend and liquidation preferences that may adversely affect the holders of our other equity or debt securities.
The particular terms of any series of preferred
stock, and the transfer agent and registrar for that series, will be described in a prospectus supplement. All preferred stock offered,
when issued, will be fully paid and nonassessable. Any material United States federal income tax consequences and other special
considerations with respect to any preferred stock offered under this prospectus will also be described in the applicable prospectus supplement.
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities from time to time,
in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized
below will apply generally to any debt securities that we may offer under this prospectus, we will describe the particular terms of any
debt securities that we may offer in more detail in the applicable prospectus supplement. The terms of any debt securities offered under
a prospectus supplement may differ from the terms described below. Unless the context requires otherwise, whenever we refer to the indenture,
we also are referring to any supplemental indentures that specify the terms of a particular series of debt securities.
We will issue the debt securities under the indenture
that we will enter into with the trustee named in the indenture. The indenture will be qualified under the Trust Indenture Act of 1939,
as amended, or the Trust Indenture Act. We have filed the form of indenture as an exhibit to the registration statement of which this
prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered
will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports
that we file with the SEC.
The following summary of material provisions of
the debt securities and the indenture is subject to, and qualified in its entirety by reference to, all of the provisions of the indenture
applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related free writing
prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete indenture that contains the
terms of the debt securities.
General
The indenture does not limit the amount of debt
securities that we may issue. It provides that we may issue debt securities up to the principal amount that we may authorize and may be
in any currency or currency unit that we may designate. Except for the limitations on consolidation, merger and sale of all or substantially
all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or other provisions designed to
give holders of any debt securities protection against changes in our operations, financial condition or transactions involving us.
We may issue the debt securities issued under
the indenture as “discount securities,” which means they may be sold at a discount below their stated principal amount. These
debt securities, as well as other debt securities that are not issued at a discount, may be issued with “original issue discount,”
or OID, for U.S. federal income tax purposes because of interest payment and other characteristics or terms of the debt securities. Material
U.S. federal income tax considerations applicable to debt securities issued with OID will be described in more detail in any applicable
prospectus supplement.
We will describe in the applicable prospectus
supplement the terms of the series of debt securities being offered, including:
| · | the title of the series of debt securities; |
| · | any limit upon the aggregate principal amount that may be issued; |
| · | the maturity date or dates; |
| · | the form of the debt securities of the series; |
| · | the applicability of any guarantees; |
| · | whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| · | whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination
thereof, and the terms of any subordination; |
| · | if the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt
securities will be issued is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that
is convertible into another security or the method by which any such portion shall be determined; |
| · | the interest rate or rates, which may be fixed or variable, or the method for determining the rate and
the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or
the method for determining such dates; |
| · | our right, if any, to defer payment of interest and the maximum length of any such deferral period; |
| · | if applicable, the date or dates after which, or the period or periods during which, and the price or
prices at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions
and the terms of those redemption provisions; |
| · | the date or dates, if any, on which, and the price or prices at which we are obligated, pursuant to any
mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of
debt securities and the currency or currency unit in which the debt securities are payable; |
| · | the denominations in which we will issue the series of debt securities, if other than denominations of
$1,000 and any integral multiple thereof; |
| · | any and all terms, if applicable, relating to any auction or remarketing of the debt securities of that
series and any security for our obligations with respect to such debt securities and any other terms which may be advisable in connection
with the marketing of debt securities of that series; |
| · | whether the debt securities of the series shall be issued in whole or in part in the form of a global
security or securities; the terms and conditions, if any, upon which such global security or securities may be exchanged in whole or in
part for other individual securities; and the depositary for such global security or securities; |
| · | if applicable, the provisions relating to conversion or exchange of any debt securities of the series
and the terms and conditions upon which such debt securities will be so convertible or exchangeable, including the conversion or exchange
price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’
option) conversion or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion
or exchange; |
| · | if other than the full principal amount thereof, the portion of the principal amount of debt securities
of the series which shall be payable upon declaration of acceleration of the maturity thereof; |
| · | additions to or changes in the covenants applicable to the particular debt securities being issued, including,
among others, the consolidation, merger or sale covenant; |
| · | additions to or changes in the events of default with respect to the securities and any change in the
right of the trustee or the holders to declare the principal, premium, if any, and interest, if any, with respect to such securities to
be due and payable; |
| · | additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance; |
| · | additions to or changes in the provisions relating to satisfaction and discharge of the indenture; |
| · | additions to or changes in the provisions relating to the modification of the indenture both with and
without the consent of holders of debt securities issued under the indenture; |
| · | the currency of payment of debt securities if other than U.S. dollars and the manner of determining the
equivalent amount in U.S. dollars; |
| · | whether interest will be payable in cash or additional debt securities at our or the holders’ option
and the terms and conditions upon which the election may be made; |
| · | the terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium,
if any and principal amounts of the debt securities of the series to any holder that is not a “United States person” for federal
tax purposes; |
| · | any restrictions on transfer, sale or assignment of the debt securities of the series; and |
| · | any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities,
any other additions or changes in the provisions of the indenture, and any terms that may be required by us or advisable under applicable
laws or regulations. |
Conversion or Exchange Rights
We will set forth in the applicable prospectus
supplement the terms on which a series of debt securities may be convertible into or exchangeable for our common stock or our other securities.
We will include provisions as to settlement upon conversion or exchange and whether conversion or exchange is mandatory, at the option
of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or our other securities
that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus
supplement applicable to a particular series of debt securities, the indenture will not contain any covenant that restricts our ability
to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety or substantially as an entirety.
However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all of our obligations under the indenture
or the debt securities, as appropriate.
Events of Default under the Indenture
Unless we provide otherwise in the prospectus
supplement applicable to a particular series of debt securities, the following are events of default under the indenture with respect
to any series of debt securities that we may issue:
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if we fail to pay any installment of interest on any series of debt securities, as and when the same shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by us in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of interest for this purpose; |
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if we fail to pay the principal of, or premium, if any, on any series of debt securities as and when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established with respect to such series; provided, however, that a valid extension of the maturity of such debt securities in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of principal or premium, if any; |
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if we fail to observe or perform any other covenant or agreement contained in the debt securities or the indenture, other than a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after we receive written notice of such failure, requiring the same to be remedied and stating that such is a notice of default thereunder, from the trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and |
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if specified events of bankruptcy, insolvency or reorganization occur. |
If an event of default with respect to debt securities
of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the holders
of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice to us in writing, and to the
trustee if notice is given by such holders, may declare the unpaid principal of, premium, if any, and accrued interest, if any, due and
payable immediately. If an event of default specified in the last bullet point above occurs with respect to us, the principal amount of
and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or other action
on the part of the trustee or any holder.
The holders of a majority in principal amount
of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and its
consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured
the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the indenture, if an event
of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or
powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such
holders have offered the trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding debt securities
of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee,
or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided that:
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the direction so given by the holder is not in conflict with any law or the applicable indenture; and |
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subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding. |
A holder of the debt securities of any series
will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other remedies only
if:
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the holder has given written notice to the trustee of a continuing event of default with respect to that series; |
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request; |
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such holders have offered to the trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred by the trustee in compliance with the request; and |
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the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer. |
These limitations do not apply to a suit instituted
by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the
trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
We and the trustee may change an indenture without
the consent of any holders with respect to specific matters:
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to cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series; |
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to comply with the provisions described above under “Description of Debt Securities—Consolidation, Merger or Sale;” |
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to provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
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to add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions or provisions for the benefit of the holders of all or any series of debt securities, to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred upon us in the indenture; |
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add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication and delivery of debt securities, as set forth in the indenture; |
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to make any change that does not adversely affect the interests of any holder of debt securities of any series in any material respect; |
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to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided above under “Description of Debt Securities—General” to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities; |
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to evidence and provide for the acceptance of appointment under any indenture by a successor trustee; or |
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to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act. |
In addition, under the indenture, the rights of
holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at least a majority
in aggregate principal amount of the outstanding debt securities of each series that is affected. However, unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may make the following changes only
with the consent of each holder of any outstanding debt securities affected:
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extending the fixed maturity of any debt securities of any series; |
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reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption of any series of any debt securities; or |
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reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver. |
Discharge
Each indenture provides that we can elect to be
discharged from our obligations with respect to one or more series of debt securities, except for specified obligations, including obligations
to:
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provide for payment; |
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register the transfer or exchange of debt securities of the series; |
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replace stolen, lost or mutilated debt securities of the series; |
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pay principal of and premium and interest on any debt securities of the series; |
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maintain paying agencies; |
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hold monies for payment in trust; |
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recover excess money held by the trustee; |
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compensate and indemnify the trustee; and |
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appoint any successor trustee. |
In order to exercise our rights to be discharged,
we must deposit with the trustee money or government obligations sufficient to pay all the principal of, any premium, if any, and interest
on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series
only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus supplement, in denominations
of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities of a series in temporary or permanent
global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company, or DTC, or another
depositary named by us and identified in the applicable prospectus supplement with respect to that series. To the extent the debt securities
of a series are issued in global form and as book-entry, a description of terms relating to any book-entry securities will be set forth
in the applicable prospectus supplement.
At the option of the holder, subject to the terms
of the indenture and the limitations applicable to global securities described in the applicable prospectus supplement, the holder of
the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination
and of like tenor and aggregate principal amount.
Subject to the terms of the indenture and the
limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present
the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed
if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated
by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, we will impose
no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement
the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities.
We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office
through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt
securities of each series.
If we elect to redeem the debt securities of any
series, we will not be required to:
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issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or |
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register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part. |
Information Concerning the Trustee
The trustee, other than during the occurrence
and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically set forth in the
applicable indenture. Upon an event of default under an indenture, the trustee must use the same degree of care as a prudent person would
exercise or use in the conduct of his or her own affairs. Subject to this provision, the trustee is under no obligation to exercise any
of the powers given it by the indenture at the request of any holder of debt securities unless it is offered reasonable security and indemnity
against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable
prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose
name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for
the interest.
We will pay principal of and any premium and interest
on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate
in the applicable prospectus supplement, we will make interest payments by check that we will mail to the holder or by wire transfer to
certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate the corporate trust office of
the trustee as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus
supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying
agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the trustee
for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two years after
such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may
look only to us for payment thereof.
Governing Law
The indenture and the debt securities will be
governed by and construed in accordance with the internal laws of the State of New York, except to the extent that the Trust Indenture
Act is applicable.
DESCRIPTION
OF WARRANTS
We may issue warrants for the purchase of preferred
stock, common stock, or any combination thereof. We may issue warrants independently or together with any other securities offered by
any prospectus supplement and may be attached to or separate from the other offered securities. Each series of warrants will be issued
under a separate warrant agreement to be entered into by us with a warrant agent. The warrant agent will act solely as our agent in connection
with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of
warrants. Further terms of the warrants and the applicable warrant agreements will be set forth in the applicable prospectus supplement.
The applicable prospectus supplement relating
to any particular issue of warrants will describe the terms of the warrants, including, as applicable, the following:
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the title of the warrants; |
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the aggregate number of the warrants; |
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the price or prices at which the warrants will be issued; |
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the designation, terms and number of shares of preferred stock or common stock purchasable upon exercise of the warrants; |
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the designation and terms of the offered securities, if any, with which the warrants are issued and the number of the warrants issued with each offered security; |
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the date, if any, on and after which the warrants and the related preferred stock or common stock will be separately transferable; |
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the price at which each share of preferred stock or common stock purchasable upon exercise of the warrants may be purchased; |
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the date on which the right to exercise the warrants shall commence and the date on which that right shall expire; |
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the minimum or maximum amount of the warrants which may be exercised at any one time; |
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information with respect to book-entry procedures, if any; |
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a discussion of certain U.S. federal income tax considerations; and |
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any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
We and the warrant agent may amend or supplement
the warrant agreement for a series of warrants without the consent of the holders of the warrants issued thereunder to effect changes
that are not inconsistent with the provisions of the warrants and that do not materially and adversely affect the interests of the holders
of the warrants.
DESCRIPTION
OF UNITS
The following description, together with the additional
information we include in any applicable prospectus supplement, summarizes the material terms and provisions of the units that we may
offer under this prospectus. Units may be offered independently or together with common or preferred stock, and warrants offered by any
prospectus supplement, and may be attached to or separate from those securities. While the terms we have summarized below will generally
apply to any future units that we may offer under this prospectus, we will describe the particular terms of any series of units that we
may offer in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ
from the terms described below.
We will incorporate by reference into the registration
statement of which this prospectus forms a part the form of unit agreement, including a form of unit certificate, if any, that describes
the terms of the series of units we are offering before the issuance of the related series of units. The following summaries of material
provisions of the units and the unit agreements are subject to, and qualified in their entirety by reference to, all the provisions of
the unit agreement applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the
units that we sell under this prospectus, as well as the complete unit agreements that contain the terms of the units.
We may issue units consisting of one or more shares
of common stock or preferred stock, warrants or any combination of such securities. Each unit will be issued so that the holder of the
unit is also the holder of each security included in the unit.
Additionally, we will describe in the applicable prospectus supplement
the terms of the series of units, including the following:
| · | the designation and terms of the units and the securities included in the
units; |
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| · | any provision for the issuance, payment, settlement, transfer or exchange
of the units; |
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| · | the date, if any, on and after which the units may be transferable separately; |
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| · | whether we will apply to have the units traded on a securities exchange or
securities quotation system; |
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| · | any material United States federal income tax consequences; and |
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| · | how, for United States federal income tax purposes, the purchase price paid
for the units is to be allocated among the component securities. |
CERTAIN PROVISIONS OF DELAWARE LAW AND
OUR CHARTER
AND BYLAWS
The following paragraphs summarize certain provisions
of Delaware law and our restated certificate of incorporation, as amended, and our amended and restated bylaws, as amended. The summary
does not purport to be complete and is subject to and qualified in its entirety by reference to Delaware law and to our restated certificate
of incorporation, as amended, and our amended and restated bylaws, as amended, copies of which are on file with the SEC as exhibits to
reports previously filed by us. See “Where You Can Find More Information.”
Delaware Law
We are subject to the provisions of Section 203
of the Delaware General Corporation Law regulating corporate takeovers. In general, this section prohibits a Delaware corporation from
engaging in any business combination with any interested stockholder for a period of three years following the date that the stockholder
became an interested stockholder, unless:
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the transaction is approved by the board of directors prior to the time that the interested stockholder became an interested stockholder; |
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upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced; or |
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at or subsequent to such time that the stockholder became an interested stockholder, the business combination is approved by the board of directors and authorized at a meeting of stockholders by at least two-thirds of the outstanding voting stock that is not owned by the interested stockholder. |
Section 203 defines “business combination” to include
the following:
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any merger or consolidation involving the corporation and the interested stockholder; |
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any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 10% or more of the assets of the corporation involving the interested stockholder; |
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subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder; |
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any transaction involving the corporation that has the effect, directly or indirectly, of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or |
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the receipt by the interested stockholder of the benefit, directly or indirectly, of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation. |
In general, Section 203 defines an interested
stockholder as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity
or person affiliated with or controlling or controlled by any of these entities or persons.
A Delaware corporation may “opt out”
of these provisions either with an express provision in its original certificate of incorporation or in an amendment to its certificate
of incorporation or bylaws approved by its stockholders. However, we have not opted out, and do not currently intend to opt out of, these
provisions. The statute could prohibit or delay mergers or other takeover or change in control attempts and, accordingly, may discourage
attempts to acquire us.
Charter and Bylaws
Our restated certificate of incorporation, as
amended, and our amended and restated bylaws, as amended, provide that:
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our amended and restated bylaws, as amended, may be amended or repealed only by the approval of at least sixty-six and two-thirds percent (66-2/3%) of the total number of directors then in office or the affirmative vote of the holders of at least sixty-six and two-thirds percent (66-2/3%) of the shares entitled to vote at an election of directors; |
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no action can be taken by stockholders except at an annual or special meeting of the stockholders called in accordance with our amended and restated bylaws, as amended, and stockholders may not act by written consent; |
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a stockholder must provide advance notice of stockholder proposals relating to the nomination of candidates for election as directors or new business to be brought before meetings of stockholders; |
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stockholders may not call special meetings of the stockholders or fill vacancies on the board; |
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the approval of holders of at least sixty-six and two-thirds percent (66-2/3%) of the shares entitled to vote at an election of directors is required to amend or repeal the provisions of our restated certificate of incorporation, as amended, regarding the inability of stockholders to take action by written consent; |
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our board of directors is authorized to issue preferred stock without stockholder approval; and |
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we will indemnify officers and directors against losses that they may incur in investigations and legal proceedings resulting from their services to us, which may include services in connection with takeover defense measures. |
LEGAL MATTERS
The validity of any securities offered by this prospectus will be passed
upon for us by Burns & Levinson LLP.
EXPERTS
The consolidated financial statements of Sonoma
Pharmaceuticals, Inc. appearing in Sonoma Pharmaceuticals, Inc.’s annual report on Form 10-K for the year ended March 31,
2023, filed on June 21, 2023, have been audited by Frazier & Deeter, LLC, an independent registered public accounting firm, as set
forth in their report included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. You may read and copy the registration statement and any document we file with the
SEC. The SEC also maintains a web site that contains reports, proxy and information statements and other information regarding companies,
such as ours, that file documents electronically with the SEC. The address of the SEC’s website is www.sec.gov. The information
on the SEC’s website is not part of this prospectus, and any references to this website or any other website are inactive textual
references only.
This prospectus is part of a registration statement
on Form S-3 that we filed with the SEC to register the securities to be offered hereby. This prospectus does not contain all of the information
included in the registration statement, including certain exhibits and schedules. You may obtain the registration statement and exhibits
to the registration statement from the SEC at the address listed above or from the SEC’s website listed above. In addition to the
foregoing, we maintain a website at www.sonomapharma.com. Our website content is made available for informational purposes only. It should
neither be relied upon for investment purposes nor is it incorporated by reference into this prospectus. We make available at www.sonomapharma.com
copies of our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K and any amendments to such document
as soon as practicable after we electronically file such material with or furnish such documents to the SEC.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC permits us to “incorporate by reference”
the information contained in documents we file with the SEC, which means that we can disclose important information to you by referring
you to those documents rather than by including them in this prospectus. Information that is incorporated by reference is considered to
be part of this prospectus and you should read it with the same care that you read this prospectus. Later information that we file with
the SEC will automatically update and supersede the information that is either contained, or incorporated by reference, in this prospectus,
and will be considered to be a part of this prospectus from the date those documents are filed. We have filed with the SEC, and incorporate
by reference the following in this prospectus:
| · | our Annual Report on Form 10-K for the year ended March 31, 2023, filed on
June 21, 2023, including the information specifically incorporated by reference into the Annual Report on Form 10-K from our
definitive proxy statement for our 2023 Annual Meeting of Stockholders, as filed with the SEC on July 27, 2023; |
| | |
| · | our Quarterly Report on Form 10-Q for the quarter ended June 30, 2023, filed
on August 10, 2023; |
| | |
| · | our Current Reports on Form 8-K filed on April 13, 2023, July 14, 2023 and
September 28, 2023; |
| | |
| · | Our amended Current Report on Form 8-K/A filed on October 11, 2023; and |
| | |
| · | our Registration Statement on Form 8-A as filed with the SEC on December
15, 2006. |
In addition, all documents that we file with the
SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act of 1934, as amended, after the date of the initial
registration statement of which this prospectus is a part and prior to the effectiveness of the registration statement as well as all
such documents that we file with the SEC after the date of this prospectus and before the termination of the offering of our securities
shall be deemed incorporated by reference into this prospectus and to be a part of this prospectus from the respective dates of filing
such documents. Unless specifically stated to the contrary, none of the information that we disclose under Items 2.02 or 7.01 of any Current
Report on Form 8-K that we may from time to time furnish to the SEC will be incorporated by reference into, or otherwise included in,
this prospectus.
You may request a copy of any or all of the documents
incorporated by reference but not delivered with this prospectus, at no cost, by writing or telephoning us at the following address and
number: Investor Relations, Sonoma Pharmaceuticals, Inc., 5445 Conestoga Court, Suite 150, Boulder, Colorado 80301, telephone (800) 759-9305.
We will not, however, send exhibits to those documents, unless the exhibits are specifically incorporated by reference in those documents.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION
Insofar as indemnification for liabilities arising
under the Securities Act, as amended, may be permitted to directors, officers, and controlling persons of the registrant pursuant to the
Company’s constituent documents, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling
person in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person connected
with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such issue.
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
PROSPECTUS
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. |
Other Expenses of Issuance and Distribution. |
The following table sets forth the costs and expenses
payable by the registrant in connection with the offerings described in this registration statement. In addition to the costs and expenses
set forth below, the registrant will pay any selling commissions and brokerage fees and any applicable taxes, fees and disbursements with
respect to securities registered hereby sold by the registrant. All of the amounts shown are estimates, except for the SEC registration
fee:
|
| |
Amount to be Paid | |
SEC Registration Fee | |
$ | 0.00 | |
Accountants’ Fees and Expenses * | |
| 4,000.00 | |
Legal Fees and Expenses * | |
| 4,000.00 | |
Miscellaneous Fees (including Transfer Agent and Printing fees)* | |
| 1,000.00 | |
Total | |
$ | 9,000.00 | |
* Estimated.
Item 15. |
Indemnification of Directors and Officers. |
Section 145 of the Delaware General Corporation
Law provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection
with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person
being or having been a director, officer, employee or agent to the registrant or having served at the request of the corporation, if such
person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful; provided
that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the adjudicating court
determines that such indemnification is proper under the circumstances. The Delaware General Corporation Law provides that Section 145
is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaws, agreement, vote of stockholders
or disinterested directors or otherwise.
Section 102(b)(7) of the Delaware General
Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation will not be personally
liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (1) for
any breach of the director’s duty of loyalty to the corporation or its stockholders; (2) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law; (3) for unlawful payments of dividends or unlawful stock
repurchases, redemptions or other distributions; or (4) for any transaction from which the director derived an improper personal
benefit.
Article VIII of our restated certificate of incorporation,
as amended, (included as Exhibit 3.1(i) to our annual report on Form 10-K for the year ended March 31, 2007, filed June 20, 2007) and
Article 6 of our amended and restated bylaws, as amended (included as Exhibit 3.2 to our current report on Form 8-K, filed December 7,
2016) provide for indemnification of our directors, officers, employees and other agents to the extent and under the circumstances permitted
by the Delaware General Corporation Law.
We have also entered into respective indemnification
agreements (the form of which is included as Exhibit 10.1 to our Registration Statement on Form S-1 (File No. 333-135584), as amended,
declared effective on January 24, 2007) with our officers and directors that will require us to, among other things, indemnify them against
certain liabilities that may arise by reason of their status or service as directors or officers to the fullest extent not prohibited
by law.
Exhibit Number |
|
Description |
1.1* |
|
Form of Underwriting Agreement |
|
|
|
3.1 |
|
Restated Certificate of Incorporation of Oculus Innovative Sciences, Inc., effective January 30, 2006 (included as exhibit 3.1 of the Company’s Annual Report on Form 10-K filed June 20, 2007, and incorporated herein by reference). |
|
|
|
3.2 |
|
Certificate of Amendment of Restated Certificate of Incorporation of Oculus Innovative Sciences, Inc., effective October 22, 2008 (included as exhibit A in the Company’s Definitive Proxy Statement on Schedule 14A filed July 21, 2008, and incorporated herein by reference). |
|
|
|
3.3 |
|
Certificate of Amendment of Restated Certificate of Incorporation of Oculus Innovative Sciences, Inc., as amended, effective March 29, 2013 (included as exhibit 3.1 to the Company’s Current Report on Form 8-K filed March 22, 2013, and incorporated herein by reference). |
|
|
|
3.4 |
|
Certificate of Amendment of Restated Certificate of Incorporation of Oculus Innovative Sciences, Inc., as amended, effective December 4, 2014 (included as exhibit 3.1 to the Company’s Current Report on Form 8-K filed December 8, 2014, and incorporated herein by reference). |
|
|
|
3.5 |
|
Certificate of Amendment of Restated Certificate of Incorporation of Oculus Innovative Sciences, Inc., as amended, effective October 22, 2015 (included as exhibit 3.1 to the Company’s Current Report on Form 8-K filed October 27, 2015, and incorporated herein by reference). |
|
|
|
3.6 |
|
Certificate of Amendment of Restated Certificate of Incorporation of Oculus Innovative Sciences, Inc., as amended, effective June 24, 2016 (included as exhibit 3.1 to the Company’s Current Report on Form 8-K filed June 28, 2016, and incorporated herein by reference). |
|
|
|
3.7 |
|
Certificate of Amendment of Restated Certificate of Incorporation of Sonoma Pharmaceuticals, Inc., as amended, effective December 6, 2016 (included as exhibit 3.1 to the Company’s Current Report on Form 8-K filed December 7, 2016, and incorporated herein by reference). |
|
|
|
3.8 |
|
Amended and Restated Bylaws, as amended, of Sonoma Pharmaceuticals, Inc., effective December 6, 2016 (included as exhibit 3.2 to the Company’s Current Report on Form 8-K filed December 7, 2016, and incorporated herein by reference). |
|
|
|
3.9 |
|
Certificate of Designation of Preferences, Rights and Limitations of Series A 0% Convertible Preferred Stock, filed with the Delaware Secretary of State on April 24, 2012 (included as exhibit 4.2 to the Company’s Current Report on Form 8-K, filed April 25, 2012, and incorporated herein by reference). |
|
|
|
3.10 |
|
Certificate of Designation of Series B Preferred Stock, effective October 18, 2016 (included as exhibit 3.1 to the Company’s Current Report on Form 8-K filed October 21, 2016, and incorporated herein by references). |
|
|
|
3.11 |
|
Certificate of Amendment of Restated Certificate of Incorporation of Sonoma Pharmaceuticals, Inc., as amended, effective June 19, 2019 (included as exhibit 3.1 to the Company’s Current Report on Form 8-K filed June 19, 2019, and incorporated herein by reference). |
|
|
|
4.1 |
|
Specimen Common Stock Certificate (included as exhibit 4.1 to the Company’s Annual Report on Form 10-K filed June 28, 2017, and incorporated herein by reference). |
|
|
|
4.2 |
|
Section 382 Rights Agreement, dated as of October 18, 2016, between Oculus Innovative Sciences, Inc. and Computershare Inc., which includes the Form of Certificate of Designation of Series B Preferred Stock as Exhibit A, the Form of Right Certificate as Exhibit B and the Summary of Rights to Purchase Preferred Stock as Exhibit C (included as exhibit 4.1 to the Company’s Current Report on Form 8-K filed October 21, 2016, and incorporated herein by reference). |
|
|
|
4.3 |
|
Form of Indenture, by and between the Company and one or more trustees to be named (filed herewith). |
|
|
|
4.4* |
|
Specimen Certificate for Preferred Stock |
|
|
|
4.5* |
|
Form of Certificate of Designation |
|
|
|
4.6* |
|
Form of Warrant Agreement (including form of Warrant Certificate) |
|
|
|
4.7* |
|
Form of Unit Agreement (including form of Unit Certificate) |
|
|
|
5.1 |
|
Opinion of Burns & Levinson, LLP (filed herewith). |
|
|
|
23.1 |
|
Consent of Frazier & Deeter, LLC (filed herewith). |
|
|
|
23.2 |
|
Consent of Burns & Levinson LLP (incorporated in Exhibit 5.1). |
|
|
|
24.1 |
|
Power of Attorney (included in the signature page to the Form S-3). |
|
|
|
25.1** |
|
Form T-1 Statement of Eligibility of Trustee for Indenture under the Trust Indenture Act of 1939, as amended |
|
|
|
107 |
|
Calculation of Filing Fee Table (filed herewith). |
*To be filed, if necessary, by amendment or as an exhibit to a document
to be incorporated or deemed to be incorporated by reference in this registration statement, including a Current Report on Form 8-K.
**To be filed, if necessary, pursuant to Section 305(b)(2) of the Trust
Indenture Act of 1939.
(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) 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;
(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 into 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:
(A) 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
(B) 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.
(b) The undersigned registrant
hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(d) 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 (“Act”) in accordance with the rules and regulations prescribed by the Commission under
section 305(b)(2) of the Act.
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 on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized
in the City of Boulder, State of Colorado, on November 3, 2023.
|
SONOMA PHARMACEUTICALS, INC. |
|
|
|
By: |
/s/ Amy Trombly |
|
|
Amy Trombly
Chief Executive Officer
(Principal Executive Officer) |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below hereby constitutes and appoints Amy Trombly as his or her true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his name, place, and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for
the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities
Act, and all post-effective amendments thereto, 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 acting alone, 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 might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/ Amy Trombly
|
|
Chief Executive Officer
|
|
November 3, 2023 |
Amy Trombly |
|
(Principal Executive Officer) |
|
|
|
|
|
|
|
/s/ Jerome Dvonch |
|
Interim Chief Financial Officer |
|
November 3, 2023 |
Jerome Dvonch |
|
(Principal Financial Officer, and Principal Accounting
Officer) |
|
|
|
|
|
|
|
/s/ Philippe Weigerstorfer |
|
Director |
|
November 3, 2023 |
Philippe Weigerstorfer |
|
|
|
|
|
|
|
|
|
/s/ Jay Birnbaum |
|
Director |
|
November 3, 2023 |
Jay Birnbaum |
|
|
|
|
|
|
|
|
|
/s/ Jerry Mc Laughlin |
|
Director |
|
November 3, 2023 |
Jerry McLaughlin |
|
|
|
|
Exhibit 4.3
SONOMA
PHARMACEUTICALS, INC.,
Issuer
AND
[TRUSTEE],
Trustee
_______________
INDENTURE
Dated as of [•], 20__
_______________
Debt Securities
INDENTURE
Indenture,
dated as of [•], 20__, among SONOMA PHARMACEUTICALS, INC., a
Delaware corporation (the “Company”), and [Trustee], as trustee (the
“Trustee”):
Whereas,
for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance
of debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued
from time to time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated by
the certificate of the Trustee;
Whereas,
to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture; and
Whereas,
all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
Now,
Therefore, in consideration of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted
and agreed as follows for the equal and ratable benefit of the holders of Securities:
ARTICLE
1
DEFINITIONS
Section 1.01 Definitions
of Terms.
The terms defined in this
Section (except as in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in
this Section and shall include the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein
or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned
to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution of this instrument.
“Authenticating
Agent” means the Trustee or an authenticating agent with respect to all or any of the series of Securities appointed by
the Trustee pursuant to Section 2.10.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board of Directors”
means the Board of Directors (or the functional equivalent thereof) of the Company or any duly authorized committee of such Board.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors (or duly authorized committee thereof) and to be in full force and effect on the date of such certification.
“Business Day”
means, with respect to any series of Securities, any day other than a day on which federal or state banking institutions in the Borough
of Manhattan, the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law, executive
order or regulation to close.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Company”
means SONOMA PHARMACEUTICALS, INC., a corporation duly organized and existing under
the laws of the State of Delaware, and, subject to the provisions of Article Ten, shall
also include its successors and assigns.
“Corporate Trust
Office” means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at .
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Defaulted Interest”
has the meaning set forth in Section 2.03.
“Depositary”
means, with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, another clearing agency, or any successor registered as a clearing agency under the Exchange Act,
or other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01 or
2.11.
“Event of Default”
means, with respect to Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any,
therein designated.
“Exchange Act”
means the United States Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Commission thereunder.
The term “given”,
“mailed”, “notify” or “sent” with respect to any notice
to be given to a Securityholder pursuant to this Indenture, shall mean notice (x) given to the Depositary (or its designee) pursuant to
the standing instructions from the Depositary or its designee, including by electronic mail in accordance with accepted practices or procedures
at the Depositary (in the case of a Global Security) or (y) mailed to such Holder by first class mail, postage prepaid, at its address
as it appears on the Security Register (in the case of a definitive Security). Notice so “given” shall be deemed
to include any notice to be “mailed” or “delivered,” as applicable, under this Indenture.
“Global Security”
means a Security issued to evidence all or a part of any series of Securities which is executed by the Company and authenticated and delivered
by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all in accordance with the Indenture, which shall
be registered in the name of the Depositary or its nominee.
“Governmental
Obligations” means securities that are (a) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States of America that, in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated
maturity of the Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to
any such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian
for the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect
of the Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation evidenced by such depositary
receipt.
“herein”,
“hereof” and “hereunder”, and other words of similar import, refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof and shall include the terms of particular series of Securities established as
contemplated by Section 2.01.
“Interest Payment
Date”, when used with respect to any installment of interest on a Security of a particular series, means the date specified
in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which
an installment of interest with respect to Securities of that series is due and payable.
“Officer”
means, with respect to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial
officer, a chief operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any
assistant treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
“Officer’s
Certificate” means a certificate signed by any Officer. Each such certificate shall include the statements provided
for in Section 13.07, if and to the extent required by the provisions thereof.
“Opinion of
Counsel” means an opinion in writing subject to customary exceptions of legal counsel, who may be an employee of or counsel
for the Company, that is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the
statements provided for in Section 13.07, if and to the extent required by the provisions thereof.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore
canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously
been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside
and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if such Securities
or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided
in Article Three, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities in lieu of
or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person”
means any individual, corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated
organization, any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor
Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section
2.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible
Officer” when used with respect to the Trustee means any officer within the Corporate Trust Office of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter
is referred because of his or her knowledge of and familiarity with the particular subject and in each case who shall have direct responsibility
for the administration of this Indenture.
“Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under
this Indenture.
“Securities Act” means
the Securities Act of 1933, as amended.
“Securityholder”, “holder
of Securities”, “registered holder”, or other similar term, means the Person or Persons in whose
name or names a particular Security is registered on the Security Register kept for that purpose in accordance with the terms of this
Indenture.
“Security Register”
and “Security Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary” means,
with respect to any Person, any corporation, association, partnership 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, general partners or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries
of such Person.
“Trustee”
means _________________________, and, subject to the provisions of Article Seven, shall also include its successors and assigns, and,
if at any time there is more than one Person acting in such capacity hereunder, “Trustee” shall mean each such Person. The
term “Trustee” as used with respect to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture
Act” means the Trust Indenture Act of 1939, as amended.
“U.S.A. Patriot
Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Pub. L. 107-56, as amended and signed into law October 26, 2001.
ARTICLE
2
ISSUE,
DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01 Designation
and Terms of Securities.
(a) The aggregate
principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may
be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant
to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities
of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established
in one or more indentures supplemental hereto:
(1) the title of
the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2) any limit upon
the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series);
(3) the maturity
date or dates on which the principal of the Securities of the series is payable;
(4) the form of
the Securities of the series including the form of the certificate of authentication for such series;
(5) the applicability
of any guarantees;
(6) whether or not
the Securities will be secured or unsecured, and the terms of any secured debt;
(7) whether the
Securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any subordination;
(8) if the price
(expressed as a percentage of the aggregate principal amount thereof) at which such Securities will be issued is a price other than the
principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity thereof,
or if applicable, the portion of the principal amount of such Securities that is convertible into another security or the method by which
any such portion shall be determined;
(9) the interest
rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the
dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates;
(10) the Company’s
right, if any, to defer the payment of interest and the maximum length of any such deferral period;
(11) if applicable,
the date or dates after which, or the period or periods during which, and the price or prices at which, the Company may at its option,
redeem the series of Securities pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions;
(12) the date or
dates, if any, on which, and the price or prices at which the Company is obligated, pursuant to any mandatory sinking fund or analogous
fund provisions or otherwise, to redeem, or at the Securityholder’s option to purchase, the series of Securities and the currency
or currency unit in which the Securities are payable;
(13) the denominations
in which the Securities of the series shall be issuable, if other than denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof;
(14) any and all
terms, if applicable, relating to any auction or remarketing of the Securities of that series and any security for the obligations of
the Company with respect to such Securities and any other terms which may be advisable in connection with the marketing of Securities
of that series;
(15) whether the
Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities; the terms and conditions,
if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Securities; and the Depositary
for such Global Security or Securities;
(16) if applicable,
the provisions relating to conversion or exchange of any Securities of the series and the terms and conditions upon which such Securities
will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will be calculated and may
be adjusted, any mandatory or optional (at the Company’s option or the holders’ option) conversion or exchange features, the
applicable conversion or exchange period and the manner of settlement for any conversion or exchange, which may, without limitation, include
the payment of cash as well as the delivery of securities;
(17) if other than
the full principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration
of acceleration of the maturity thereof pursuant to Section 6.01;
(18) additions to
or changes in the covenants applicable to the series of Securities being issued, including, among others, the consolidation, merger or
sale covenant;
(19) additions to
or changes in the Events of Default with respect to the Securities and any change in the right of the Trustee or the Securityholders to
declare the principal, premium, if any, and interest, if any, with respect to such Securities to be due and payable;
(20) additions to
or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
(21) additions to
or changes in the provisions relating to satisfaction and discharge of this Indenture;
(22) additions to
or changes in the provisions relating to the modification of this Indenture both with and without the consent of Securityholders of Securities
issued under this Indenture;
(23) the currency
of payment of Securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars;
(24) whether interest
will be payable in cash or additional Securities at the Company’s or the Securityholders’ option and the terms and conditions
upon which the election may be made;
(25) the terms and
conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if any and principal amounts
of the Securities of the series to any Securityholder that is not a “United States person” for federal tax purposes;
(26) any restrictions
on transfer, sale or assignment of the Securities of the series; and
(27) any other specific
terms, preferences, rights or limitations of, or restrictions on, the Securities, any other additions or changes in the provisions of
this Indenture, and any terms that may be required by us or advisable under applicable laws or regulations.
All Securities of any one
series shall be substantially identical except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures
supplemental hereto.
If any of the terms of the
series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall
be certified by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery of the
Officer’s Certificate of the Company setting forth the terms of the series.
Securities of any particular
series may be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such interest
may be payable and with different redemption dates.
Section 2.02 Form
of Securities and Trustee’s Certificate.
The Securities of any series
and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as
set forth in one or more indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officer’s Certificate,
and they may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed
or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities
exchange on which Securities of that series may be listed, or to conform to usage.
Section 2.03 Denominations:
Provisions for Payment.
The Securities shall be
issuable as registered Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject
to Section 2.01(a)(13). The Securities of a particular series shall bear interest payable on the dates and at the rate specified
with respect to that series. Subject to Section 2.01(a)(23), the principal of and the interest on the Securities of any series,
as well as any premium thereon in case of redemption or repurchase thereof prior to maturity, and any cash amount due upon conversion
or exchange thereof, shall be payable in the coin or currency of the United States of America that at the time is legal tender for public
and private debt, at the office or agency of the Company maintained for that purpose. Each Security shall be dated the date
of its authentication. Interest on the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day
months.
The interest installment
on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series
shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business
on the regular record date for such interest installment. In the event that any Security of a particular series or portion
thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date
and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security as provided
in Section 3.03.
Any interest on any Security
that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein
called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular record date
by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause
(1) or clause (2) below:
(1) The Company
may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered in the Security Register at the close of business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall
fix a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the special record date therefor to be sent, to each Securityholder not
less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special
record date therefor having been sent as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities
(or their respective Predecessor Securities) are registered in the Security Register on such special record date.
(2) The Company
may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee.
Unless otherwise set forth
in a Board Resolution or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section
2.01 hereof, the term “regular record date” as used in this Section with respect to a series of Securities and any Interest
Payment Date for such series shall mean either the fifteenth day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of a month,
or the first day of the month in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur,
if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing
provisions of this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other
Security.
Section 2.04 Execution
and Authentications.
The Securities shall be
signed on behalf of the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the
facsimile signature of any Person who shall have been an Officer (at the time of execution), notwithstanding the fact that at the time
the Securities shall be authenticated and delivered or disposed of such Person shall have ceased to be such an officer of the Company. The
Securities may contain such notations, legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated
the date of its authentication by the Trustee.
A Security shall not be
valid until authenticated manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature
shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder
is entitled to the benefits of this Indenture. At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a written order
of the Company for the authentication and delivery of such Securities, signed by an Officer, and the Trustee in accordance with such written
order shall authenticate and deliver such Securities.
Upon the Company’s
delivery of any such authentication order to the Trustee at any time after the initial issuance of Securities under this Indenture, the
Trustee shall be provided with, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be fully protected in
relying upon, (1) an Opinion of Counsel or reliance letter and (2) an Officer’s Certificate stating that all conditions precedent
to the execution, authentication and delivery of such Securities are in conformity with the provisions of this Indenture.
The Trustee shall not be
required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own
rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
Section 2.05 Registration
of Transfer and Exchange.
(a) Securities
of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose, for other
Securities of such series of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient to
cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of any Securities
so surrendered for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver in exchange
therefor the Security or Securities of the same series that the Securityholder making the exchange shall be entitled to receive, bearing
numbers not contemporaneously outstanding.
(b) The Company
shall keep, or cause to be kept, at its office or agency designated for such purpose a register or registers (herein referred to as the
“Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the
Securities and the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection
by the Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall
be appointed as authorized by Board Resolution or Supplemental Indenture (the “Security Registrar”).
Upon surrender for transfer
of any Security at the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate
and such office or agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series as
the Security presented for a like aggregate principal amount.
The Company initially appoints
the Trustee as initial Security Registrar for each series of Securities
All Securities presented
or surrendered for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so required by the Company
or the Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar,
duly executed by the registered holder or by such holder’s duly authorized attorney in writing.
(c) Except as
provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one
or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer of Securities,
or issue of new Securities in case of partial redemption of any series or repurchase, conversion or exchange of less than the entire principal
amount of a Security, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge in relation
thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not involving any transfer.
(d) The Company
and the Security Registrar shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning
at the opening of business 15 days before the day of the sending of a notice of redemption of less than all the Outstanding Securities
of the same series and ending at the close of business on the day of such sending, nor (ii) to register the transfer of or exchange any
Securities of any series or portions thereof called for redemption or surrendered for repurchase, but not validly withdrawn, other than
the unredeemed portion of any such Securities being redeemed in part or not surrendered for repurchase, as the case may be. The
provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
The Trustee shall have no
obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation
or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine
the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.06 Temporary
Securities.
Pending the preparation
of definitive Securities of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities
(printed, lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in
the form of the definitive Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed by the Company
and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive
Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such
series and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to the Securityholders),
at the office or agency of the Company designated for the purpose, and the Trustee shall authenticate and such office or agency shall
deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series, unless
the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until further notice from
the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under this
Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section 2.07 Mutilated,
Destroyed, Lost or Stolen Securities.
In case any temporary or
definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall
execute, and upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the
same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of
and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall
furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction of
the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may authenticate
any such substituted Security and deliver the same upon the written request or authorization of any officer of the Company. Upon
the issuance of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
In case any Security that
has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute
Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant
for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require to save them harmless, and,
in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of
such Security and of the ownership thereof.
Every replacement Security
issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not
the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder. All
Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
Section 2.08 Cancellation.
All Securities surrendered
for the purpose of payment, redemption, repurchase, exchange, registration of transfer or conversion shall, if surrendered to the Company
or any paying agent (or any other applicable agent), be delivered to the Trustee for cancellation, or, if surrendered to the Trustee,
shall be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly required or permitted by any of the provisions
of this Indenture. On request of the Company at the time of such surrender, the Trustee shall deliver to the Company canceled
Securities held by the Trustee. In the absence of such request the Trustee may dispose of canceled Securities in accordance
with its standard procedures and deliver a certificate of disposition to the Company. If the Company shall otherwise acquire
any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.09 Benefits
of Indenture.
Nothing in this Indenture
or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders
of the Securities any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the
holders of the Securities.
Section 2.10 Authenticating
Agent.
So long as any of the
Securities of any series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the
Trustee shall have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, transfer or partial redemption, repurchase or conversion thereof, and
Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. All references in this Indenture to the authentication of Securities by the Trustee
shall be deemed to include authentication by an Authenticating Agent for such series. Each Authenticating Agent shall be
acceptable to the Company and shall be a corporation that has a combined capital and surplus, as most recently reported or
determined by it, sufficient under the laws of any jurisdiction under which it is organized or in which it is doing business to
conduct a trust business, and that is otherwise authorized under such laws to conduct such business and is subject to supervision or
examination by federal or state authorities. If at any time any Authenticating Agent shall cease to be eligible in
accordance with these provisions, it shall resign immediately.
Any Authenticating Agent
may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time
(and upon request by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent,
the Trustee may appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder
as if originally named as an Authenticating Agent pursuant hereto.
Section 2.11 Global
Securities.
(a) If the Company
shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security, then the Company
shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that (i) shall represent,
and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities of such series, (ii)
shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant
to the Depositary’s instruction (or if the Depositary names the Trustee as its custodian, retained by the Trustee), and (iv) shall
bear a legend substantially to the following effect: “Except as otherwise provided in Section 2.11 of the Indenture, this Security
may be transferred, in whole but not in part, only to another nominee of the Depositary or to a successor Depositary or to a nominee of
such successor Depositary.”
(b) Notwithstanding
the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner provided
in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such series selected or approved
by the Company or to a nominee of such successor Depositary.
(c) If at any
time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary for such
series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default has occurred and is continuing
and the Company has received a request from the Depositary or from the Trustee, this Section 2.11 shall no longer be applicable to the
Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate and deliver the Securities
of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Security of such series in exchange for such Global Security. In addition, the Company
may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that the provisions
of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will execute and, subject
to Section 2.04, the Trustee, upon receipt of an Officer’s Certificate evidencing such determination by the Company, will authenticate
and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. Upon the exchange
of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations, the Global Security
shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global Security
pursuant to this Section 2.11(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to the Depositary for delivery to the Persons in whose names such Securities are so registered.
Section 2.12 CUSIP
Numbers.
The Company in issuing the
Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers
in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be
placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers. The Company will promptly notify the Trustee of any change in the “CUSIP” numbers.
ARTICLE
3
REDEMPTION
OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem the
Securities of any series issued hereunder on and after the dates and in accordance with the terms established for such series pursuant
to Section 2.01 hereof.
Section 3.02 Notice
of Redemption.
(a) In case the
Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any series in accordance
with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall cause the Trustee
to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first class postage prepaid
(or with regard to any Global Security held in book entry form, by electronic mail in accordance with the applicable procedures of the
Depositary), a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption of that
series to such Securityholders, unless a shorter period is specified in the Securities to be redeemed. Any notice that is mailed in the
manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered holder receives the notice.
In any case, failure duly to give such notice to the holder of any Security of any series designated for redemption in whole or in part,
or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities of such series
or any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s
Certificate evidencing compliance with any such restriction.
Each such notice of redemption
shall identify the Securities to be redeemed (including CUSIP numbers, if any), specify the date fixed for redemption and the redemption
price at which Securities of that series are to be redeemed, and shall state that payment of the redemption price of such Securities to
be redeemed will be made at the office or agency of the Company, upon presentation and surrender of such Securities, that interest accrued
to the date fixed for redemption will be paid as specified in said notice, that from and after said date interest will cease to accrue
and that the redemption is from a sinking fund, if such is the case. If less than all the Securities of a series are to be redeemed, the
notice to the holders of Securities of that series to be redeemed in part shall specify the particular Securities to be so redeemed.
In case any Security is
to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed,
and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
(b) If less than
all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice (unless a shorter
notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount of Securities
of the series to be redeemed, and thereupon the Securities to be redeemed shall be selected, by lot, on a pro rata basis, or in such other
manner as the Company shall deem appropriate and fair in its discretion and that may provide for the selection of a portion or portions
(equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof) of the principal amount of such Securities of a denomination
larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify the Company in writing of the numbers of the Securities
to be redeemed, in whole or in part. The Company may, if and whenever it shall so elect, by delivery of instructions signed
on its behalf by an Officer, instruct the Trustee or any paying agent to call all or any part of the Securities of a particular series
for redemption and to give notice of redemption in the manner set forth in this Section, such notice to be in the name of the Company
or its own name as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such
paying agent, as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient
to enable the Trustee or such paying agent to give any notice by mail that may be required under the provisions of this Section.
Section 3.03 Payment
Upon Redemption.
(a) If the giving
of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the series to be redeemed
specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to, but excluding, the date fixed for redemption and interest on such Securities or portions of
Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment of such redemption
price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such Securities on or
after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid and redeemed at the
applicable redemption price for such series, together with interest accrued thereon to, but excluding, the date fixed for redemption (but
if the date fixed for redemption is an Interest Payment Date, the interest installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date pursuant to Section 2.03).
(b) Upon presentation
of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate and the
office or agency where the Security is presented shall deliver to the Securityholder thereof, at the expense of the Company, a new Security
of the same series of authorized denominations in principal amount equal to the unredeemed portion of the Security so presented.
Section 3.04 Sinking
Fund.
The provisions of Sections
3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified
as contemplated by Section 2.01 for Securities of such series.
The minimum amount of any
sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,”
and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
Section 3.05 Satisfaction
of Sinking Fund Payments with Securities.
The Company (i) may deliver
Outstanding Securities of a series and (ii) may apply as a credit Securities of a series that have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities
of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series, provided that
such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at
the redemption price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
Section 3.06 Redemption
of Securities for Sinking Fund.
Not less than 45 days prior
to each sinking fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company
will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer’s Certificate, deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Securities
to be redeemed upon such sinking fund payment date shall be selected in the manner specified in Section 3.02 and the Company shall cause
notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.02.
Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section
3.03.
ARTICLE
4
COVENANTS
Section 4.01 Payment
of Principal, Premium and Interest.
The Company will duly and
punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and
place and in the manner provided herein and established with respect to such Securities. Payments of principal on the Securities may be
made at the time provided herein and established with respect to such Securities by U.S. dollar check drawn on and mailed to the address
of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to, a U.S.
dollar account if such Securityholder shall have furnished wire instructions to the Trustee no later than 15 days prior to the relevant
payment date. Payments of interest on the Securities may be made at the time provided herein and established with respect to such Securities
by U.S. dollar check mailed to the address of the Securityholder entitled thereto as such address shall appear in the Security Register,
or U.S. dollar wire transfer to, a U.S. dollar account if such Securityholder shall have furnished wire instructions in writing to the
Security Registrar and the Trustee no later than 15 days prior to the relevant payment date.
Section 4.02 Maintenance
of Office or Agency.
So long as any series of
the Securities remain Outstanding, the Company agrees to maintain an office or agency with respect to each such series and at such other
location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be presented for
payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange, and (iii)
notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be given or served, such
designation to continue with respect to such office or agency until the Company shall, by written notice signed by any officer authorized
to sign an Officer’s Certificate and delivered to the Trustee, designate some other office or agency for such purposes or any of
them. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, notices and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands. The Company
initially appoints the Corporate Trust Office of the Trustee as its paying agent with respect to the Securities.
Section 4.03 Paying
Agents.
(a) If the Company
shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company will cause each such
paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions
of this Section:
(1) that it will
hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the Securities of that
series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust for the benefit of
the Persons entitled thereto;
(2) that it will
give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment of the principal
of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3) that it will,
at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4) that it
will perform all other duties of paying agent as set forth in this Indenture.
(b) If the Company
shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date of the principal of
(and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities of that series
until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of such
action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall have one or more
paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any) or interest on any
Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such paying
agent is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c) Notwithstanding
anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the provisions
of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture
or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company or such paying
agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums were held by the Company or
such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or such paying agent shall be
released from all further liability with respect to such money.
Section 4.04 Appointment
to Fill Vacancy in Office of Trustee.
The Company, whenever necessary
to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall
at all times be a Trustee hereunder.
ARTICLE
5
SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01 Company
to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish
or cause to be furnished to the Trustee (a) within 15 days after each regular record date (as defined in Section 2.03) a list, in such
form as the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities as of such regular
record date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall
not differ in any respect from the most recent list furnished to the Trustee by the Company and (b) at such other times as the Trustee
may request in writing within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is furnished; provided, however, that, in either case, no such list need be furnished
for any series for which the Trustee shall be the Security Registrar.
Section 5.02 Preservation
Of Information; Communications With Securityholders.
(a) The Trustee
shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the holders of Securities
contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of holders of Securities
received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The Trustee
may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights under
this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations under
Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section 5.03 Reports
by the Company.
(a) The Company
will at all times comply with Section 314(a) of the Trust Indenture Act. The Company covenants and agrees to provide (which
delivery may be via electronic mail) to the Trustee within 30 days, after the Company files 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 is required to file with the Commission pursuant to Section
13 or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the Trustee any correspondence
filed with the Commission or any materials for which the Company has sought and received confidential treatment by the Commission; and
provided further, that so long as such filings by the Company are available on the Commission’s Electronic Data Gathering, Analysis
and Retrieval System (EDGAR), or any successor system, such filings shall be deemed to have been filed with the Trustee for purposes hereof
without any further action required by the Company. For the avoidance of doubt, a failure by the Company to file annual reports, information
and other reports with the Commission within the time period prescribed thereof by the Commission shall not be deemed a breach of this
Section 5.03.
(b) Delivery of
reports, information and documents to the Trustee under Section 5.03 is for informational purposes only and the information and the Trustee’s
receipt of the foregoing shall not constitute constructive notice of any information contained therein, or determinable from information
contained therein including the Company’s compliance with any of their covenants thereunder (as to which the Trustee is entitled
to rely exclusively on an Officer’s Certificate). The Trustee is under no duty to examine any such reports, information or documents
delivered to the Trustee or filed with the Commission via EDGAR to ensure compliance with the provision of this Indenture or to ascertain
the correctness or otherwise of the information or the statements contained therein. The Trustee shall have no responsibility or duty
whatsoever to ascertain or determine whether the above referenced filings with the Commission on EDGAR (or any successor system) has occurred.
Section 5.04 Reports
by the Trustee.
(a) If required
by Section 313(a) of the Trust Indenture Act, the Trustee, within sixty (60) days after each May 1, shall send to the Securityholders
a brief report dated as of such May 1, which complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee
shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c) A copy of
each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company, with each securities
exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees to notify the
Trustee when any Securities become listed on any securities exchange.
ARTICLE
6
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01 Events
of Default.
(a) Whenever used
herein with respect to Securities of a particular series, “Event of Default” means any one or more of the following events
that has occurred and is continuing:
(1) the Company
defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same shall become due
and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period
by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of interest
for this purpose;
(2) the Company
defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when the same shall become
due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous
fund established with respect to that series; provided, however, that a valid extension of the maturity of such Securities in accordance
with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal or premium, if any;
(3) the Company
fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture or otherwise
established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement that has been
expressly included in this Indenture solely for the benefit of one or more series of Securities other than such series) for a period of
90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that such notice is a “Notice
of Default” hereunder, shall have been given to the Company by the Trustee, by registered or certified mail, or to the Company and
the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time Outstanding;
(4) the Company
pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an order for relief
against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property
or (iv) makes a general assignment for the benefit of its creditors; or
(5) a court of competent
jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary case, (ii) appoints
a Custodian of the Company for all or substantially all of its property or (iii) orders the liquidation of the Company, and the order
or decree remains unstayed and in effect for 90 days.
(b) In each and
every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal of all the Securities
of that series shall have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal
amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by
such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest on all the Securities of
that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable. If
an Event of Default specified in clause (4) or clause (5) above occurs, the principal of and accrued and unpaid interest on all the Securities
of that series shall automatically be immediately due and payable without any declaration or other act on the part of the Trustee or the
holders of the Securities.
(c) At any time
after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall have been so declared
due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter
provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder, by written
notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has paid or deposited
with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of that series and the principal
of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise than by acceleration (with interest
upon such principal and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon overdue installments
of interest, at the rate per annum expressed in the Securities of that series to the date of such payment or deposit) and the amount payable
to the Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture with respect to such series, other than
the nonpayment of principal on (and premium, if any, on) and accrued and unpaid interest on Securities of that series that shall not have
become due by their terms, shall have been remedied or waived as provided in Section 6.06.
No such rescission and annulment
shall extend to or shall affect any subsequent default or impair any right consequent thereon.
(d) In case the
Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the Company and the Trustee shall
be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.
Section 6.02 Collection
of Indebtedness and Suits for Enforcement by Trustee.
(a) The Company
covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities of a series, or
in any payment required by any sinking or analogous fund established with respect to that series as and when the same shall have become
due and payable, and such default shall have continued for a period of 90 days, or (ii) in case it shall default in the payment of
the principal of (or premium, if any, on) any of the Securities of a series when the same shall have become due and payable, whether upon
maturity of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall have been become
due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case may be, with interest upon
the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable under applicable law) upon
overdue installments of interest at the rate per annum expressed in the Securities of that series; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee under Section 7.06.
(b) If the Company
shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or other
obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner provided by law or equity
out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c) In case of
any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings
affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings and take any action
therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim
and other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities
of such series allowed for the entire amount due and payable by the Company under the Indenture at the date of institution of such proceedings
and for any additional amount that may become due and payable by the Company after such date, and to collect and receive any moneys or
other property payable or deliverable on any such claim, and to distribute the same after the deduction of the amount payable to the Trustee
under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the holders
of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to such Securityholders, to pay to the Trustee any amount due it under Section 7.06.
(d) All rights
of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities of that series,
may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06, be for the
ratable benefit of the holders of the Securities of such series.
In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or
in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or in aid of
the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Nothing contained herein
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of that series or the rights of any Securityholder thereof or to authorize
Section 6.03 Application
of Moneys Collected.
Any moneys collected by
the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium, if any) or interest,
upon presentation of the Securities of that series, and notation thereon of the payment, if only partially paid, and upon surrender thereof
if fully paid:
FIRST: To the payment of
costs and expenses of collection and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of
the amounts then due and unpaid upon Securities of such series for principal (and premium, if any) and interest, in respect of which or
for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of
the remainder, if any, to the Company or any other Person lawfully entitled thereto.
Section 6.04 Limitation
on Suits.
No holder of any Security
of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i) such Securityholder previously shall have given to the Trustee written notice of an Event of Default and
of the continuance thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided; (ii)
the holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii) such Securityholder
or Securityholders shall have offered to the Trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred
in compliance with such request; (iv) the Trustee for 90 days after its receipt of such notice, request and offer of indemnity, shall
have failed to institute any such action, suit or proceeding and (v) during such 90 day period, the holders of a majority in principal
amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything
contained herein to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive payment
of the principal of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed
in such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such holder and by accepting
a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security of such series with
every other such taker and holder and the Trustee, that no one or more holders of Securities of such series shall have any right in any
manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the holders
of any other of such Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any
right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all holders of Securities
of such series. For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Section 6.05 Rights
and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except as
otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee or the holders
of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained
in this Indenture or otherwise established with respect to such Securities.
(b) No delay or
omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event of Default occurring
and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article or by law to the Trustee or the
Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
Section 6.06 Control
by Securityholders.
The holders of a majority
in aggregate principal amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04, shall
have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to such series; provided, however, that such direction shall not be in conflict
with any rule of law or with this Indenture or subject the Trustee in its sole discretion to personal liability. Subject to
the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or officers of the Trustee, determine that the proceeding so directed, subject to the Trustee’s
duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial to the Securityholders
not involved in the proceeding. The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding
affected thereby, determined in accordance with Section 8.04, may on behalf of the holders of all of the Securities of such series waive
any past default in the performance of any of the covenants contained herein or established pursuant to Section 2.01 with respect to such
series and its consequences, except a default in the payment of the principal of, or premium, if any, or interest on, any of the Securities
of that series as and when the same shall become due by the terms of such Securities otherwise than by acceleration (unless such default
has been cured and a sum sufficient to pay all matured installments of interest and principal and any premium has been deposited with
the Trustee (in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured
for all purposes of this Indenture and the Company, the Trustee and the holders of the Securities of such series shall be restored to
their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 6.07 Undertaking
to Pay Costs.
All parties to this Indenture
agree, and each holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder,
or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or to any
suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security
of such series, on or after the respective due dates expressed in such Security or established pursuant to this Indenture.
ARTICLE
7
CONCERNING
THE TRUSTEE
Section 7.01 Certain
Duties and Responsibilities of Trustee.
(a) The Trustee,
prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all Events of Default
with respect to the Securities of that series that may have occurred, shall undertake to perform with respect to the Securities of such
series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred (that has
not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his or her own affairs.
(b) No provision
of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to
act, or its own willful misconduct, except that:
(i) prior to the
occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all such Events of Default
with respect to that series that may have occurred:
(A) the duties
and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(B) in the absence
of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(ii) the Trustee
shall not be liable to any Securityholder or to any other Person for any error of judgment made in good faith by a Responsible Officer
or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee
shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the
holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding relating to the time,
method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon
the Trustee under this Indenture with respect to the Securities of that series;
(iv) none of the
provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable ground for
believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate
indemnity against such risk is not reasonably assured to it;
(v) The Trustee
shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder;
(vi) The permissive
right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee; and
(vii) No Trustee
shall have any duty or responsibility for any act or omission of any other Trustee appointed with respect to a series of Securities hereunder.
Section 7.02 Certain
Rights of Trustee.
Except as otherwise provided
in Section 7.01:
(a) The Trustee
may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) Any request,
direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument signed
in the name of the Company by any authorized Officer of the Company (unless other evidence in respect thereof is specifically prescribed
herein);
(c) The Trustee
may consult with counsel and the opinion or written advice of such counsel or, if requested, any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d) The Trustee
shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction
of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee
security or indemnity reasonably acceptable to the Trustee against the costs, expenses and liabilities that may be incurred therein or
thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default with
respect to a series of the Securities (that has not been cured or waived), to exercise with respect to Securities of that series such
of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their exercise, as a prudent
man would exercise or use under the circumstances in the conduct of his or her own affairs;
(e) The Trustee
shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents or inquire as to the performance
by the Company of one of its covenants under this Indenture, unless requested in writing so to do by the holders of not less than a majority
in principal amount of the Outstanding Securities of the particular series affected thereby (determined as provided in Section 8.04);
provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may require security or indemnity reasonably acceptable to the Trustee against such
costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such examination shall be paid
by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand;
(g) The Trustee
may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care
by it hereunder;
(h) In no event
shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or
caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions
of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts
which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
(i) In no event
shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including,
but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action; and
(j) The Trustee
agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or
other similar unsecured electronic methods; provided, however, that such instructions or directions shall be signed by an authorized representative
of the party providing such instructions or directions. If the party elects to give the Trustee e-mail or facsimile instructions
(or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s
understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses
arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions
conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks
arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the
risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties. The Trustee may request
that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at
such time to furnish the Trustee with Officer’s Certificates, Company Orders and any other matters or directions pursuant to this
Indenture.
(k) The rights,
privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and under the Securities, and each agent, custodian
or other person employed to act under this Indenture.
(l) The Trustee
shall not be deemed to have knowledge of any Default or Event of Default (other than an Event of Default constituting the failure to pay
the interest on, or the principal of, the Securities if the Trustee also serves the paying agent for such Securities) until the Trustee
shall have received written notification in the manner set forth in this Indenture or a Responsible Officer of the Trustee shall have
obtained actual knowledge.
Section 7.03 Trustee
Not Responsible for Recitals or Issuance or Securities.
(a) The recitals
contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee shall not be responsible for any statement in any registration statement, prospectus, or any
other document in connection with the sale of Securities. The Trustee shall not be responsible for any rating on the Securities or any
action or omission of any rating agency.
(b) The Trustee
makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee
shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such Securities, or
for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture or established pursuant
to Section 2.01, or for the use or application of any moneys received by any paying agent other than the Trustee.
Section 7.04 May
Hold Securities.
The Trustee or any paying
agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights
it would have if it were not Trustee, paying agent or Security Registrar.
Section 7.05 Moneys
Held in Trust.
Subject to the provisions
of Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes
for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06 Compensation
and Reimbursement.
(a) The
Company shall pay to the Trustee for each of its capacities hereunder from time to time compensation for its services as the Company and
the Trustee shall from time to time agree upon in writing. The Trustee’s compensation shall not be limited by any law
on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket
expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.
(b) The Company
shall indemnify each of the Trustee in each of its capacities hereunder against any loss, liability or expense (including the cost of
defending itself and including the reasonable compensation and expenses of the Trustee’s agents and counsel) incurred by it except
as set forth in Section 7.06(c) in the exercise or performance of its powers, rights or duties under this Indenture as Trustee or Agent. The
Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of
the Trustee.
(c) The Company
need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee,
shareholder or agent of the Trustee through negligence or bad faith.
(d) To ensure
the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities on all funds or property
held or collected by the Trustee, except that held in trust to pay principal of or interest on particular Securities. When
the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(4) or (5), the expenses
(including the reasonable fees and expenses of its counsel) and the compensation for services in connection therewith are to constitute
expenses of administration under any bankruptcy law. The provisions of this Section 7.06 shall survive the termination of this
Indenture and the resignation or removal of the Trustee.
Section 7.07 Reliance
on Officer’s Certificate.
Except as otherwise provided
in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary or
desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee and such certificate,
in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered
or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.08 Disqualification;
Conflicting Interests.
If the Trustee has or shall
acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company
shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate
Trustee Required; Eligibility.
There shall at all times
be a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and doing business under
the laws of the United States of America or any state or territory thereof or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state, territorial,
or District of Columbia authority.
If such corporation or other
Person publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such corporation or other Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may not,
nor may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately
in the manner and with the effect specified in Section 7.10.
Section 7.10 Resignation
and Removal; Appointment of Successor.
(a) The Trustee
or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series by giving written notice
thereof to the Company and the Securityholders of such series. Upon receiving such notice of resignation, the Company shall promptly appoint
a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within 30 days after the sending of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee with respect to Securities
of such series, or any Securityholder of that series who has been a bona fide holder of a Security or Securities for at least six months
may on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court
may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at
any time any one of the following shall occur:
(i) the Trustee
shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder who has
been a bona fide holder of a Security or Securities for at least six months; or
(ii) the Trustee
shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request therefor by
the Company or by any such Securityholder; or
(iii) the Trustee
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver
of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case,
the Company may remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least six months may,
on behalf of that holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The holders
of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove the Trustee
with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series with the consent
of the Company.
(d) Any resignation
or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant to any of the provisions
of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
(e) Any successor
trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all of such series,
and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance
of Appointment By Successor.
(a) In case of
the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor
trustee, such retiring Trustee shall, upon payment of any amounts due to it pursuant to the provisions of Section 7.06, execute and deliver
an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and money held by such retiring Trustee hereunder.
(b) In case of
the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates,
(ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee shall be trustee
of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder; and upon the execution and delivery
of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee shall with respect to the Securities of that or those series to which the appointment of such successor trustee
relates have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations vested
in the Trustee under this Indenture, and each such successor trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor trustee relates; but, on request of the Company or any successor trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property and
money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such
successor trustee relates.
(c) Upon request
of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming
to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor
trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified and eligible under
this Article.
(e) Upon acceptance
of appointment by a successor trustee as provided in this Section, the Company shall send notice of the succession of such trustee hereunder
to the Securityholders. If the Company fails to transmit such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section 7.12 Merger,
Conversion, Consolidation or Succession to Business.
Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, including the administration of the trust created by this Indenture, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09,
without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential
Collection of Claims Against the Company.
The Trustee shall comply
with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture
Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice
of Default.
If any Event of Default
occurs and is continuing and if such Event of Default is known to a Responsible Officer of the Trustee, the Trustee shall send to each
Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Event of Default within
the earlier of 90 days after it occurs and 30 days after it is known to a Responsible Officer of the Trustee or written notice of it is
received by the Trustee, unless such Event of Default has been cured; provided, however, that, except in the case of a default
in the payment of the principal of (or premium, if any) or interest on any Security, the Trustee shall be protected in withholding such
notice if and so long as the Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the
interest of the Securityholders.
ARTICLE
8
CONCERNING
THE SECURITYHOLDERS
Section 8.01 Evidence
of Action by Securityholders.
Whenever in this Indenture
it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular
series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action the holders of such majority or specified percentage of that series
have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders of Securities
of that series in person or by agent or proxy appointed in writing.
If the Company shall solicit
from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, as evidenced by an Officer’s Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company
shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver
or other action may be given before or after the record date, but only the Securityholders of record at the close of business on the record
date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of Outstanding
Securities of that series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver
or other action, and for that purpose the Outstanding Securities of that series shall be computed as of the record date; provided, however,
that no such authorization, agreement or consent by such Securityholders on the record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than six months after the record date.
Section 8.02 Proof
of Execution by Securityholders.
Subject to the provisions
of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his or her
agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and
date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership
of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
The Trustee may require such additional proof
of any matter referred to in this Section as it shall deem necessary.
Section 8.03 Who
May be Deemed Owners.
Prior to the due presentment
for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat
the Person in whose name such Security shall be registered upon the books of the Security Registrar as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than
the Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to Section
2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
Section 8.04 Certain
Securities Owned by Company Disregarded.
In determining whether the
holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any direction, consent or waiver
under this Indenture, the Securities of that series that are owned by the Company or any other obligor on the Securities of that series
or by any Person directly or indirectly controlling or controlled by or under common control with the Company or any other obligor on
the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Securities
of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so owned that have been pledged in
good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall establish to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the Company or any such other obligor. In case
of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05 Actions
Binding on Future Securityholders.
At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage
in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with such action, any
holder of a Security of that series that is shown by the evidence to be included in the Securities the holders of which have consented
to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall be conclusive
and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued in exchange therefor,
on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made upon such
Security. Any action taken by the holders of the majority or percentage in aggregate principal amount of the Securities of a particular
series specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the
holders of all the Securities of that series.
ARTICLE
9
SUPPLEMENTAL
INDENTURES
Section 9.01 Supplemental
Indentures Without the Consent of Securityholders.
In addition to any supplemental
indenture otherwise authorized by this Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent
of the Securityholders, for one or more of the following purposes:
(a) to cure any
ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b) to comply
with Article Ten;
(c) to provide
for uncertificated Securities in addition to or in place of certificated Securities;
(d) to add to
the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of all or any series of Securities
(and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all series of Securities, stating
that such covenants, restrictions, conditions or provisions are expressly being included solely for the benefit of such series), to make
the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions
an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e) to add to,
delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication,
and delivery of Securities, as herein set forth;
(f) to make any
change that does not adversely affect the rights of any Securityholder in any material respect;
(g) to provide
for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section 2.01, to establish
the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to add
to the rights of the holders of any series of Securities;
(h) to evidence
and provide for the acceptance of appointment hereunder by a successor trustee; or
(i) to comply
with any requirements of the Commission or any successor in connection with the qualification of this Indenture under the Trust Indenture
Act.
The Trustee is hereby authorized
to join with the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture
authorized by the provisions of this Section may be executed by the Company and the Trustee without the consent of the holders of any
of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02 Supplemental
Indentures With Consent of Securityholders.
With the consent (evidenced
as provided in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each series
affected by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and
the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered by Section 9.01 the
rights of the holders of the Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend the fixed maturity of any Securities
of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce
any premium payable upon the redemption thereof or (b) reduce the aforesaid percentage of Securities, the holders of which are required
to consent to any such supplemental indenture.
It shall not be necessary
for the consent of the Securityholders of any series affected thereby under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect
of Supplemental Indentures.
Upon the execution of any
supplemental indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such series,
be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 9.04 Securities
Affected by Supplemental Indentures.
Securities of any series
affected by a supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements of
any securities exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors, to
any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee
and delivered in exchange for the Securities of that series then Outstanding.
Section 9.05 Execution
of Supplemental Indentures.
Upon the request of the
Company, accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company
in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such supplemental
indenture. The Trustee, subject to the provisions of Section 7.01, shall receive an Officer’s Certificate or an Opinion of Counsel
as conclusive evidence that any supplemental indenture executed pursuant to this Article is authorized or permitted by the terms of this
Article and that all conditions precedent to the execution of the supplemental indenture have been complied with; provided, however, that
such Officer’s Certificate or Opinion of Counsel need not be provided in connection with the execution of a supplemental indenture
that establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly after the execution
by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Company shall (or shall direct
the Trustee to) send a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders of
all series affected thereby .as their names and addresses appear upon the Security Register. Any failure of the Company to send, or cause
the sending of, such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental
indenture.
ARTICLE
10
SUCCESSOR
ENTITY
Section 10.01 Company
May Consolidate, Etc.
Nothing contained in this
Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated with the Company)
or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, or shall prevent
any sale, conveyance, transfer or other disposition of the property of the Company or its successor or successors as an entirety, or substantially
as an entirety, to any other Person (whether or not affiliated with the Company or its successor or successors); provided, however, the
Company hereby covenants and agrees that, upon any such consolidation or merger (in each case, if the Company is not the survivor of such
transaction) or any such sale, conveyance, transfer or other disposition (other than a sale, conveyance, transfer or other disposition
to a Subsidiary of the Company), the due and punctual payment of the principal of (premium, if any) and interest on all of the Securities
of all series in accordance with the terms of each series, according to their tenor, and the due and punctual performance and observance
of all the covenants and conditions of this Indenture with respect to each series or established with respect to such series pursuant
to Section 2.01 to be kept or performed by the Company shall be expressly assumed, by supplemental indenture (which shall conform to the
provisions of the Trust Indenture Act, as then in effect) reasonably satisfactory in form to the Trustee executed and delivered to the
Trustee by the entity formed by such consolidation, or into which the Company shall have been merged, or by the entity which shall have
acquired such property.
Section 10.02 Successor
Entity Substituted.
(a) In case of
any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor entity by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set forth under Section 10.01
on all of the Securities of all series Outstanding, such successor entity shall succeed to and be substituted for the Company with the
same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be relieved of all obligations
and covenants under this Indenture and the Securities.
(b) In case of
any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form (but not in substance)
may be made in the Securities thereafter to be issued as may be appropriate.
(c) Nothing contained
in this Article shall require any action by the Company in the case of a consolidation or merger of any Person into the Company where
the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of all or any part of the
property of any other Person (whether or not affiliated with the Company).
ARTICLE
11
SATISFACTION
AND DISCHARGE
Section 11.01 Satisfaction
and Discharge of Indenture.
If at any time: (a) the
Company shall have delivered to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered to
the Trustee for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced
or paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have theretofore been deposited
in trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged from such trust, as provided
in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit or cause to
be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination thereof, sufficient
in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered
to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed for redemption, as
the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder with respect to such series by
the Company then this Indenture shall thereupon cease to be of further effect with respect to such series except for the provisions of
Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.10, 11.5 and 13.04, that shall survive until the date of maturity or redemption date, as
the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter, and the Trustee, on demand of the Company
and at the cost and expense of the Company shall execute proper instruments acknowledging satisfaction of and discharging this Indenture
with respect to such series.
Section 11.02 Discharge
of Obligations.
If at any time all such
Securities of a particular series not heretofore delivered to the Trustee for cancellation or that have not become due and payable as
described in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an
amount of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company with respect to such series, then after the date such moneys or Governmental Obligations, as the case may be,
are deposited with the Trustee the obligations of the Company under this Indenture with respect to such series shall cease to be of further
effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10, 11.05 and 13.04 hereof that shall survive
until such Securities shall mature and be paid.
Thereafter, Sections 7.06
and 11.05 shall survive.
Section 11.03 Deposited
Moneys to be Held in Trust.
All moneys or Governmental
Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as
due, either directly or through any paying agent (including the Company acting as its own paying agent), to the holders of the particular
series of Securities for the payment or redemption of which such moneys or Governmental Obligations have been deposited with the Trustee.
Section 11.04 Payment
of Moneys Held by Paying Agents.
In connection with the satisfaction
and discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability
with respect to such moneys or Governmental Obligations.
Section 11.05 Repayment
to Company.
Any moneys or Governmental
Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or premium,
if any, or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities
for at least two years after the date upon which the principal of (and premium, if any) or interest on such Securities shall have respectively
become due and payable, or such other shorter period set forth in applicable escheat or abandoned or unclaimed property law, shall be
repaid to the Company on May 31 of each year or upon the Company’s request or (if then held by the Company) shall be discharged
from such trust; and thereupon the paying agent and the Trustee shall be released from all further liability with respect to such moneys
or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment shall thereafter, as a general creditor,
look only to the Company for the payment thereof.
ARTICLE
12
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 No
Recourse.
No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood
that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason
of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom; and that any
and all such personal liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any
and all such rights and claims against, every such incorporator, stockholder, officer or director as such, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Securities.
ARTICLE
13
MISCELLANEOUS
PROVISIONS
Section 13.01 Effect
on Successors and Assigns.
All the covenants, stipulations,
promises and agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so expressed
or not.
Section 13.02 Actions
by Successor.
Any act or proceeding by
any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall
and may be done and performed with like force and effect by the corresponding board, committee or officer of any corporation that shall
at the time be the lawful successor of the Company.
Section 13.03 Surrender
of Company Powers.
The Company by instrument
in writing executed by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the
Company, and thereupon such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise expressly
provided herein, any notice, request or demand that by any provision of this Indenture is required or permitted to be given, made or served
by the Trustee, the Security Registrar, any paying or other agent under this Indenture or by the holders of Securities or by any other
Person pursuant to this Indenture to or on the Company may be given or served by being deposited in first class mail, postage prepaid,
addressed (until another address is filed in writing by the Company with the Trustee), as follows: .
Any notice, election, request or demand by the Company or any Securityholder or by any other Person pursuant to this Indenture to or upon
the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at the Corporate Trust
Office of the Trustee.
Section 13.05 Governing
Law; Jury Trial Waiver.
This Indenture and each
Security shall be governed by, and construed in accordance with, the internal laws of the State of New York, except to the extent that
the Trust Indenture Act is applicable.
EACH PARTY HERETO, AND EACH
HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.
Section 13.06 Treatment
of Securities as Debt.
It is intended that the
Securities will be treated as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture
shall be interpreted to further this intention.
Section 13.07 Certificates
and Opinions as to Conditions Precedent.
(a) Upon any application
or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to
the Trustee an Officer’s Certificate stating that all conditions precedent provided for in this Indenture (other than the certificate
to be delivered pursuant to Section 13.12) relating to the proposed action have been complied with and, if requested, an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion need be furnished.
(b) Each certificate
or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant in this
Indenture (other than the certificate to be delivered pursuant to Section 13.12 of this Indenture or Section 314(a)(1) of the Trust Indenture
Act) shall include (i) a statement that the Person making such certificate or opinion has read such covenant or condition; (ii) a brief
statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate
or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such examination or investigation as is reasonably
necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv)
a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 13.08 Payments
on Business Days.
Except as provided pursuant
to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures
supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of redemption
of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue for
the period after such nominal date.
Section 13.09 Conflict
with Trust Indenture Act.
If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Section 318(c) of the Trust Indenture Act, such
imposed duties shall control.
Section 13.10 Counterparts.
This Indenture may be executed
in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same
instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective
execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes.
Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 13.11 Separability.
In case any one or more
of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture
or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision
had never been contained herein or therein.
Section 13.12 Compliance
Certificates.
The Company shall deliver
to the Trustee, within 120 days after the end of each fiscal year during which any Securities of any series were outstanding, an officer’s
certificate stating whether or not the signers know of any Event of Default that occurred during such fiscal year. Such certificate
shall contain a certification from the principal executive officer, principal financial officer or principal accounting officer of the
Company that a review has been conducted of the activities of the Company and the Company’s performance under this Indenture and
that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section 13.12, such compliance
shall be determined without regard to any period of grace or requirement of notice provided under this Indenture. If the officer of the
Company signing such certificate has knowledge of such an Event of Default, the certificate shall describe any such Event of Default and
its status.
Section 13.13 U.S.A
Patriot Act.
The parties hereto acknowledge
that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight
the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal
entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they
will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot
Act.
Section 13.14 Force
Majeure.
In no event shall the Trustee,
the Security Registrar, any paying agent or any other agent under this Indenture be responsible or liable for any failure or delay in
the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including
without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes
or acts of God, and interruptions, loss or malfunctions or utilities, communications or computer (software and hardware) services; it
being understood that the Trustee, the Security Registrar, any paying agent or any other agent under this Indenture shall use reasonable
efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 13.15 Headings.
The headings of the articles
and sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof,
and will not modify or restrict any of the terms or provisions hereof.
In Witness
Whereof, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
|
SONOMA PHARMACEUTICALS, INC. |
|
|
|
By: _____________________________ |
|
Name: |
|
Title: |
|
|
|
[Trustee], as Trustee |
|
By: _____________________________ |
|
Name: |
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Title: |
CROSS-REFERENCE TABLE (1)
|
|
Section of Trust Indenture Act of 1939,
as Amended
|
Section of Indenture |
310(a) |
7.09 |
310(b) |
7.08 |
|
7.10 |
310(c) |
Inapplicable |
311(a) |
7.13 |
311(b) |
7.13 |
311(c) |
Inapplicable |
312(a) |
5.01 |
|
5.02(a) |
312(b) |
5.02(c) |
312(c) |
5.02(c) |
313(a) |
5.04(a) |
313(b) |
5.04(b) |
313(c) |
5.04(a) |
|
5.04(b) |
313(d) |
5.04(c) |
314(a) |
5.03 |
|
13.12 |
314(b) |
Inapplicable |
314(c) |
13.07(a) |
314(d) |
Inapplicable |
314(e) |
13.07(b) |
314(f) |
Inapplicable |
315(a) |
7.01(a) |
|
7.01(b) |
315(b) |
7.14 |
315(c) |
7.01 |
315(d) |
7.01(b) |
315(e) |
6.07 |
316(a) |
6.06 |
|
8.04 |
316(b) |
6.04 |
316(c) |
8.01 |
317(a) |
6.02 |
317(b) |
4.03 |
318(a) |
13.09 |
_________________
(1) |
This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
Exhibit 5.1
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125 High Street
Boston, MA 02210
(617) 345-3000
www.burnslev.com
|
November 3, 2023
Sonoma Pharmaceuticals, Inc.
5445 Conestoga Court
Suite 150
Boulder, CO 80301
|
Re: |
Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to Sonoma Pharmaceuticals,
Inc., a Delaware corporation (the “Company”), in connection with its filing with the Securities and Exchange Commission
(the “Commission”) of a registration statement on Form S-3 (the “Registration Statement”) under
the Securities Act of 1933, as amended (the “Securities Act”), with respect to the registration of up to $51,300,000
of any combination of (i) common stock, par value $0.0001 per share (the “Common Stock”), of the Company, (ii) preferred
stock, par value $0.0001 per share, of the Company (the “Preferred Stock”), (iii) warrants to purchase Common Stock,
Preferred Stock, Debt Securities or Units (as defined below ) (“Warrants”) (iv) debt securities of the Company (“Debt
Securities”) or (v) units comprised of Common Stock, Preferred Stock, Debt Securities and Warrants in any combination (“Units”). The
Common Stock, Preferred Stock, Warrants, Debt Securities and Units are sometimes referred to collectively herein as the “Securities.” Securities
may be issued in an unspecified number (with respect to Common Stock, Preferred Stock, Warrants and Units) or in an unspecified principal
amount (with respect to Debt Securities). The Registration Statement provides that the Securities may be offered separately or together,
in separate series, in amounts, at prices and on terms to be set forth in one or more prospectus supplements (each a “Prospectus
Supplement”) to the prospectus contained in the Registration Statement.
We have examined such documents, instruments,
certificates and records, and made such examination of law as we have deemed appropriate to give the opinions set forth below. We
have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinions
set forth below, on certificates of officers of the Company.
In such examination, we have assumed:
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a) |
the authenticity of original documents and the genuineness of all signatures; |
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b) |
the conformity to the originals of all documents submitted to us as copies; |
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c) |
the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed; |
Sonoma Pharmaceuticals, Inc.
November 3, 2023
Page 2
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d) |
that the Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective under the Securities Act and will comply with all applicable laws; |
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e) |
that the Registration Statement, and any amendments thereto (including post-effective amendments) will be effective and will comply with all applicable laws at the time the Securities are offered or issued as contemplated by the Registration Statement; |
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f) |
that a Prospectus Supplement will have been filed with the Commission describing the Securities offered thereby and will comply with all applicable laws at the time the Securities are offered or issued as contemplated by the Registration Statement; |
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g) |
that all Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the applicable prospectus supplement; |
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h) |
that the offer, issuance, sale and delivery of the Securities will not violate any applicable law or result in a violation of any provision of any instrument or agreement then binding upon the Company or any restriction imposed by any court or governmental body having jurisdiction over the Company; |
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i) |
that a definitive underwriting, purchase or similar agreement with respect to any Securities offered will have been duly authorized and validly executed and delivered by the Company and the other parties thereto; and |
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j) |
at the time the Securities are offered or issued as contemplated by the Registration Statement, all corporate or other action required to be taken by the Company to duly authorize each proposed issuance of Securities and any related documentation shall have been duly completed and shall remain in full force and effect. |
For purposes of the opinions set forth below,
without limiting any other exceptions or qualifications set forth herein, we have assumed that after the issuance of any Securities offered
pursuant to the Registration Statement, the total number of issued shares of Common Stock or Preferred Stock, as applicable, together
with the total number of shares of such stock issuable upon the exercise, exchange, conversion or settlement, as the case may be, of any
exercisable, exchangeable or convertible security (including without limitation any Unit), as the case may be, then outstanding, will
not exceed the total number of authorized shares of Common Stock or Preferred Stock, as applicable, under the Company’s restated
certificate of incorporation, as then in effect (the “Charter”).
For purposes of the opinions set forth below,
we refer to the following as the “Future Authorization and Issuance” of Securities:
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· |
with respect to any of the Securities, (a) the authorization by the Company of the amount, terms and issuance of such Securities (the “Authorization”) and (b) the issuance of such Securities in accordance with the Authorization therefor upon the receipt by the Company of the consideration (which, in the case of shares of Common Stock or Preferred Stock, is not less than the par value of such shares) to be paid therefor in accordance with the Authorization; |
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with respect to Preferred Stock, (a) the establishment of the terms of such Preferred Stock by the Company in conformity with the Charter and applicable law and (b) the execution, acknowledgement and filing with the Delaware Secretary of State, and the effectiveness of, a certificate of designations to the Charter setting forth the terms of such Preferred Stock in accordance with the Charter and applicable law; |
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with respect to Debt Securities, (a) the authorization, execution and delivery of the indenture or a supplemental indenture relating to such Securities by the Company and the trustee thereunder and/or (b) the establishment of the terms of such Securities by the Company in conformity with the applicable indenture or supplemental indenture and applicable law, and (c) the execution, authentication and issuance of such Securities in accordance with the applicable indenture or supplemental indenture and applicable law; and |
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with respect to Warrants or Units, (a) the authorization, execution and delivery by the Company and the other parties thereto of any agreement under which such Securities are to be issued and (b) the establishment of the terms of such Securities, and the execution and delivery of such Securities, in conformity with any applicable agreement under which such Securities are to be issued and applicable law. |
Sonoma Pharmaceuticals, Inc.
November 3, 2023
Page 3
Based upon the foregoing, and subject to the additional
qualifications set forth below, we are of the opinion that:
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1. |
Upon the Future Authorization and Issuance of shares of Common Stock, such shares of Common Stock will be validly issued, fully paid and nonassessable. |
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2. |
Upon the Future Authorization and Issuance of shares of Preferred Stock, such shares of Preferred Stock will be validly issued, fully paid and nonassessable. |
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3. |
Upon the Future Authorization and Issuance of Warrants, such Warrants will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms. |
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4. |
Upon the Future Authorization and Issuance of Debt Securities, such Debt Securities will be valid and binding obligations of the Company. |
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5. |
Upon the Future Authorization and Issuance of Units, such Units will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms. |
The opinions expressed above are subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting the rights and remedies
of creditors and to general principles of equity.
We express no opinion herein as to the effect
or applicability of the laws of any jurisdiction other than the federal laws of the United States of America, the laws of New York and
the General Corporation Law of the State of Delaware (including all applicable provisions of the Delaware constitution and reported judicial
decisions interpreting the General Corporation Law of the State of Delaware or the Delaware constitution). This opinion is limited to
the laws referred to above as in effect on the date hereof. We undertake no obligation to advise you as a result of developments occurring
after the date hereof or as a result of facts or circumstances brought to our attention after the date hereof.
We hereby consent to the filing of this opinion
as an exhibit to the above-referenced Registration Statement and to the use of our name under the caption “Legal Matters”
in the Registration Statement and the prospectus that forms a part thereof. In giving such consent, we do not hereby admit that we come
within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the
Commission promulgated thereunder or Item 509 of Regulation S-K.
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Very truly yours, |
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/s/ BURNS & LEVINSON LLP |
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Burns & Levinson LLP |
Exhibit 23.1
CONSENT
OF Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference
in this Registration Statement of Sonoma Pharmaceuticals, Inc. and Subsidiaries (the "Company") on Form S-3 of our
report dated June 21, 2023, with respect to our audits of the consolidated financial statements of the Company as of March 31,
2023 and 2022 and for the years then ended, which is incorporated by reference in this Prospectus on Form S-3. Our report contained an
explanatory paragraph regarding substantial doubt about the Company's ability to continue as a going concern.
We also consent to the reference to our Firm under the caption "Experts"
in such Prospectus.
/s/ Frazier & Deeter, LLC
Tampa, Florida
November 3, 2023
Exhibit 107
Calculation of Filing Fee Table
Form S-3
(Form Type)
Sonoma Pharmaceuticals, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered
and Carry Forward Securities
| |
Security Type | |
Security Class Title | |
Fee Calculation or Carry Forward Rule | |
Amount Registered (1) | | |
Proposed Maximum Offering Price Per Unit (2) | | |
Maximum Aggregate Offering Price(1)(3) | | |
Fee Rate | | |
Amount of Registration Fee (8) | | |
Carry Forward Form Type | |
Carry Forward File Number | |
Carry Forward Initial Effective Date |
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|
Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward |
Carry Forward Securities | |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| |
| |
|
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|
|
Carry Forward Securities | |
Equity | |
Common Stock, par value $0.0001 per share (3) | |
415(a)(6) | |
$ | – | | |
$ | – | | |
$ | – | | |
| – | | |
$ | – | | |
S-3 | |
333-250925 | |
December 22, 2020 |
|
|
|
Carry Forward Securities | |
Equity | |
Preferred Stock, par value $0.0001 per share (4) | |
415(a)(6) | |
| – | | |
| – | | |
| – | | |
| – | | |
| – | | |
S-3 | |
333-250925 | |
December 22, 2020 |
|
|
|
Carry Forward Securities | |
Debt | |
Debt Securities (5) | |
415(a)(6) | |
| – | | |
| – | | |
| – | | |
| – | | |
| – | | |
S-3 | |
333-250925 | |
December 22, 2020 |
|
|
|
Carry Forward Securities | |
Other | |
Warrants (6) | |
415(a)(6) | |
| – | | |
| – | | |
| – | | |
| – | | |
| – | | |
S-3 | |
333-250925 | |
December 22, 2020 |
|
|
|
Carry Forward Securities | |
Other | |
Units (7) | |
415(a)(6) | |
| – | | |
| – | | |
| – | | |
| – | | |
| – | | |
S-3 | |
333-250925 | |
December 22, 2020 |
|
|
|
Carry Forward Securities | |
Unallocated (Universal) Shelf (1) | |
(1) | |
415(a)(6) | |
$ | 51,300,000 | | |
| – | | |
$ | 51,300,000 | | |
| 0.00011020 | | |
| | | |
S-3 | |
333-250925 | |
December 22, 2020 |
|
$ |
5,653.26 |
| |
| |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| |
| |
|
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|
| |
Total Offering Amounts | | |
| | | |
$ | 51,300,000 | | |
| | | |
$ | 5,653.26 | | |
| |
| |
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| |
Total Fees Previously Paid | | |
| | | |
| | | |
| | | |
| 5,653.26 | | |
| |
| |
|
|
|
|
| |
Total Fee Offsets | | |
| | | |
| | | |
| | | |
| – | | |
| |
| |
|
|
|
|
| |
Net Fee Due | | |
| | | |
| | | |
| | | |
$ | 0.00 | | |
| |
| |
|
|
|
|
(1) |
The amount to be registered consists of up to $51,300,000 of an indeterminate amount of common stock, preferred stock, debt securities, warrants and/or units. There is also being registered hereunder such currently indeterminate number of (i) shares of common stock or other securities of the registrant as may be issued upon conversion of, or in exchange for, convertible or exchangeable debt securities and/or preferred stock registered hereby, or (ii) shares of preferred stock, common stock, debt securities or units as may be issued upon exercise of warrants registered hereby, as the case may be, including under any applicable antidilution provisions. Any securities registered hereunder may be sold separately or together with other securities registered hereunder. |
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(2) |
The proposed maximum offering price per security will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant to Instruction 2.A.iii.b of the Instructions to the Calculation of Filing Fee Tables and Related Disclosure of Form S-3. |
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(3) |
Including such indeterminate amount of common stock as may be issued from time to time at indeterminate prices or upon conversion of debt securities and/or preferred stock registered hereby, or upon exercise of warrants registered hereby, as the case may be. |
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(4) |
Including such indeterminate amount of preferred stock as may be issued from time to time at indeterminate prices or upon conversion of debt securities and/or preferred stock registered hereby, or upon exercise of warrants registered hereby, as the case may be. |
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(5) |
Including such indeterminate principal amount of debt securities as may be issued from time to time at indeterminate prices or upon exercise of warrants registered hereby, as the case may be. |
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(6) |
Warrants may be sold separately or together with any of the securities registered hereby and may be exercisable for shares of common stock or preferred stock registered hereby. Because the warrants will provide a right only to purchase such securities offered hereunder, no additional registration fee is required. |
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(7) |
Each unit will be issued under a unit agreement and will represent an interest in two or more securities registered pursuant to this registration statement, which may or may not be separable from one another. Because the units will provide a right only to purchase such securities offered hereunder, no additional registration fee is required. |
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(8) |
Pursuant to Rule 415(a)(6) under the Securities Act, the securities registered pursuant to this registration statement include $51,300,000 of unsold securities (the “Unsold Securities”) previously registered pursuant to the Registration Statement on Form S-3 (File No. 333-250925), which initially became effective on December 22, 2020 (the “Prior Registration Statement”), and the Registration Statement on Form S-3 (File No. 333-221477), which initially became effective on November 27, 2017 and for which the registrant previously paid a filing fee pursuant to Rule 457(o). The filing fee associated with the offering of the Unsold Securities is hereby carried forward to be applied to the Unsold Securities registered hereunder, and no additional filing fee is due with respect to the Unsold Securities in connection with the filing of this Registration Statement. To the extent that, after the filing date hereof and prior to the effectiveness of this registration statement, the registrant sells any Unsold Securities pursuant to the Prior Registration Statement, the registrant will identify in a pre-effective amendment to this registration statement the updated number of Unsold Securities from the Prior Registration Statement to be included in this registration statement pursuant to Rule 415(a)(6) and the updated amount of new securities to be registered on this registration statement. Pursuant to Rule 415(a)(6), the offering of securities under the Prior Registration Statement will be deemed terminated as of the date of effectiveness of this registration statement. |
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