As
filed with the Securities and Exchange Commission on August 20, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
SACKS
PARENTE GOLF, INC.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
82-4938288 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(I.R.S.
Employer
Identification
No.) |
551
Calle San Pablo
Camarillo,
California 93012
(855)
774-7888
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Greg
Campbell
Executive
Chairman
Sacks
Parente Golf, Inc.
551
Calle San Pablo
Camarillo,
California 93012
(855)
774-7888
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
With
copies to:
David
Ficksman
TroyGould
PC
1801
Century Park East
16th
Floor
Los
Angeles, California 90067
(310)
553-4441
Approximate
date of commencement of proposed sale to the public:
From
time to time after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer”, “accelerated filer”,
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large
accelerated filer |
☐ |
Accelerated
filer |
☐ |
| Non-accelerated
filer |
☒ |
Smaller
reporting company |
☒ |
| |
|
Emerging
growth company |
☒ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date
as the Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not
soliciting an offer to buy these securities, in any jurisdiction where the offer or sale is not permitted.
Subject
to Completion, dated August 20, 2024
PROSPECTUS
SACKS
PARENTE GOLF, INC.
$25,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Rights
Units
From
time to time, we may offer and sell up to an aggregate amount of $25,000,000 of any combination of the securities described in this prospectus
in one or more offerings. We may also offer securities as may be issuable upon conversion, redemption, repurchase, exchange or exercise
of any securities registered hereunder, including any applicable antidilution provisions. We may sell the securities to or through underwriters
and also to other purchasers or through agents. The names of any underwriters or agents, and any fees, discounts or other compensation
payable to them will be set forth in the applicable prospectus supplement accompanying this prospectus.
We
will provide the specific terms of these offerings in one or more supplements to this prospectus. We may also authorize one or more free
writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement and any related free writing
prospectus may also update or change information contained in this prospectus. You should carefully read this prospectus, the applicable
prospectus supplement and any related free writing prospectus, as well as any documents incorporated by reference, before buying any
of the securities being offered.
Our
common stock is listed on The Nasdaq Capital Market under the symbol “SPGC”. On August 9, 2024, the last reported sale price
of our common stock on The Nasdaq Capital Market was $3.35 per share. As of August 9, 2024, the aggregate market value of our outstanding
shares of Common Stock held by non-affiliates was $2,542,600 based on 1,459,587 shares of common stock outstanding, of which 758,985
shares were held by non-affiliates on such date, and based on a closing sale price of our common stock of $3.35 per share on that date.
Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities in a public primary offering with a value exceeding
1/3 of our public float in any 12-month period so long as our public float remains below $75,000,000.
These
securities may be sold directly by us, through dealers or agents designated from time to time, to or through underwriters, dealers, or
through a combination of these methods on a continuous or delayed basis. See “Plan of Distribution” in this prospectus. We
may also describe the plan of distribution for any particular offering of our securities in a prospectus supplement. If any agents, underwriters
or dealers are involved in the sale of any securities in respect of which this prospectus is being delivered, we will disclose their
names and the nature of our arrangements with them in a prospectus supplement. The price to the public of such securities and the net
proceeds we expect to receive from any such sale by us will also be included in a prospectus supplement.
Investing
in our securities involves significant risks. You should review carefully the risks and uncertainties described under the heading “Risk
Factors” beginning on page 5 of this prospectus and in any applicable prospectus supplement and free writing prospectuses we have
authorized for use in connection with a specific offering, and under similar headings in the other documents that are incorporated by
reference into this prospectus or any prospectus supplement or free writing prospectuses.
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.
The
date of this prospectus is August 20, 2024.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) using
a “shelf” registration process. Under this shelf registration process, we may, from time to time, offer and sell, either
individually or in combination, in one or more offerings, up to a total dollar amount of $25,000,000 of shares of our common stock (“Common
Stock”), preferred stock (“Preferred Stock”), various series of debt securities, rights to purchase shares of our Common
Stock or Preferred Stock, and/or warrants to purchase any such securities, either individually or as units comprised of a combination
of one or more of the other securities .
This
prospectus provides you with a general description of the securities we may offer. Each time we offer securities under this prospectus,
we will provide a prospectus supplement that will contain more specific information about the terms of that offering. We may also authorize
one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus
supplement and any related free writing prospectus that we may authorize to be provided to you may also update or change any of the information
contained in this prospectus or in the documents that we have incorporated by reference into this prospectus. We urge you to read carefully
this prospectus, any applicable prospectus supplement and any related free writing prospectuses we have authorized for use in connection
with a specific offering, together with the information incorporated herein by reference as described under the heading “Information
Incorporated by Reference”, before buying any of the securities being offered.
You
should rely only on the information contained in, or incorporated by reference into, this prospectus and any applicable prospectus supplement,
along with the information contained in any free writing prospectuses we have authorized for use in connection with a specific offering.
We have not authorized anyone to provide you with information in addition to or different from that contained in this prospectus, any
applicable prospectus supplement and any related free writing prospectus. We take no responsibility for and can provide no assurances
as to the reliability of, any information not contained in this prospectus, any applicable prospectus supplement or any related free
writing prospectus that we may authorize to be provided to you. This prospectus is an offer to sell only the securities offered hereby,
but only under circumstances and in jurisdictions where it is lawful to do so. You should assume that the information in this prospectus,
any applicable prospectus supplement or any related free writing prospectus is accurate only as of the date on the front of the document
and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless
of the time of delivery of this prospectus, any applicable prospectus supplement or any related free writing prospectus, or any sale
of a security. Our business, financial condition, results of operations and prospects may have changed since those dates.
References
in this prospectus to the terms “Sacks Parente”, “we”, “us”, “our” or the “Company”
or other similar terms refer, collectively, to Sacks Parente Golf, Inc., unless we state otherwise or the context indicates otherwise.
When
we refer to “you”, we mean the potential holders of the applicable series of securities.
NOTE
ABOUT FORWARD-LOOKING STATEMENTS
This
prospectus and the information incorporated herein by reference includes forward-looking statements within the meaning of Section 27A
of the Securities Act, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”). For this purpose, any statements contained herein, other than statements of historical fact, may be
forward-looking statements under the provisions of the Private Securities Litigation Reform Act of 1995, including any statements about
our future performance, business, financial condition, strategic transactions (including mergers, acquisitions and management services
agreements), sources of revenue, operating results, plans, objectives, expectations and intentions; any statements regarding future economic
conditions; and any statements of belief or assumptions including underlying any of the foregoing. In this prospectus and the information
incorporated herein by reference, words such as “anticipate”, “believe”, “estimate”, and variations
of such words or similar expressions are used to identify these forward-looking statements. Actual results may differ materially from
those indicated by such forward-looking statements as a result of various important factors. These risks are described in greater detail
in the section entitled “Risk Factors” of this prospectus. Many of these factors that will determine actual results are beyond
our ability to control or predict. If one or more of these factors materialize, or if any underlying assumptions prove incorrect, actual
results, performance or achievements may vary materially from any future results, performance or achievements expressed or implied by
these forward-looking statements. In addition, any forward-looking statements in this prospectus represent our views only as of the date
of this prospectus and should not be relied upon as representing our views as of any subsequent date. We anticipate that subsequent events
and developments will cause its views to change. However, while we may elect to update these forward-looking statements publicly at some
point in the future, we specifically disclaim any obligation to do so, except as may be required by law, whether as a result of new information,
future events or otherwise. Our forward-looking statements generally do not reflect the potential impact of any future acquisitions,
mergers, dispositions, joint ventures or investments we may make.
Refer
to the section entitled “Risk Factors” of this prospectus, and any other risk factors set forth in any accompanying prospectus
supplement and in any information incorporated by reference in this prospectus or any accompanying prospectus supplement to better understand
the risks and uncertainties inherent in our business and underlying any forward-looking statements, as well as any other risk factors
and cautionary statements described in the documents we file from time to time with the SEC, specifically our most recent Annual Report
on Form 10-K, Quarterly Reports on Form 10-Q, Definitive Proxy Statements on Schedule 14A and Current Reports on Form 8-K, including
sections therein titled “Risk Factors” and “Note About Forward-Looking Statements”, respectively. See “Information
Incorporated by Reference” in this prospectus.
PROSPECTUS
SUMMARY
This
summary highlights selected information contained elsewhere in this prospectus. This summary is not complete and does not contain all
the information that you should consider before making a decision to invest in our securities. We urge you to carefully read this entire
prospectus and all applicable prospectus supplements, including the more detailed information regarding our Company, the securities being
registered hereby, as well as our consolidated financial statements, the notes to the consolidated financial statements and other information
incorporated by reference from our other filings with the SEC. Investing in our securities involves a high degree of risks. Therefore,
carefully consider the risk factors set forth in Sack Parente’s most recent annual and quarterly filings with the SEC, as well
as other information in this prospectus, all applicable prospectus supplements and the documents incorporated by reference herein or
therein, before purchasing our securities. Each of the risk factors could adversely affect our business, operating results and financial
condition, as well as adversely affect the value of an investment in our securities.
Overview
We
are a technology-forward golf company, with a growing portfolio of golf products, including putting instruments, golf shafts, golf grips,
and other golf-related products. In consideration of its growth opportunities in shaft technologies, in April 2022, we expanded our manufacturing
business to include advanced premium golf shafts by opening a new shaft manufacturing facility in St. Joseph, MO. It is our intent to
manufacture and assemble substantially all products in the United States as is economically feasible. We anticipate expansion into golf
apparel and other golf-related product lines to enhance our growth. Our future expansions may include broadening our offerings through
mergers, acquisitions or internal developments of product lines that are complementary to our premium brand.
We
currently sell our products through the Company’s websites, resellers, and distributors in the United States, Japan, and South
Korea.
Risks
Associated with Our Business
Our
business is subject to a number of risks of which you should be aware of before making an investment decision. Some of these risks include
the following:
A
reduction in the number of rounds of golf played or in the number of golf participants could adversely affect sales.
We
may have limited opportunities for future growth in sales of golf products.
We
may face increased labor costs or labor shortages that could slow growth and adversely affect our business, results of operations and
financial condition.
Unfavorable
economic conditions, including future pandemics, inflation or otherwise, could have a negative impact on consumer discretionary spending
and therefore negatively impact our results of operations, financial condition and cash flows.
A
severe or prolonged economic downturn could adversely affect our wholesale customers’ financial condition, their levels of business
activity and their ability to pay trade obligations.
We
face intense competition in all of our markets, and if we are unable to compete effectively, it could have a material adverse effect
on our business, results of operations, financial condition and growth prospects.
If
we are unable to successfully manage the introduction of new products that perform and satisfy changing consumer preferences, it could
significantly and adversely impact financial performance and prospects for future growth.
Our
golf equipment, golf gear and other related golf business products could have a concentrated customer base. The loss of a major customer
could have a significant effect on our sales.
Our
business depends on a strong brand and related reputation, and if we are not able to build, maintain and enhance our brand or build a
strong reputation, our sales may be adversely affected.
International
political instability and terrorist activities may decrease demand for our products and disrupt our business.
Our
business could be harmed by the occurrence of natural disasters, pandemic diseases, or other emergencies.
Our
business and operating results are subject to seasonal fluctuations, which could result in fluctuations in our operating results and
stock price.
Changes
in equipment standards under applicable Rules of Golf could adversely affect our business.
Our
sales and business could be materially and adversely affected if professional athletes, celebrities and other endorsers do not endorse
or use our products.
Any
significant changes in U.S. trade or other policies that block, or restrict imports or increase import tariffs could have a material
adverse effect on results of operations.
Our
current senior management team and other key executives are critical to our success, and the loss of, and failure to adequately replace,
any individual executive, or manager, could significantly harm our business.
We
are exposed to risks associated with doing business globally and manufacturing in the USA.
We
have international sales and international supply chains where unfavorable changes in foreign currency exchange rates could have a significant
negative impact on our results of operations.
Any
difficulties from strategic acquisitions or strategic partnerships we pursue or consummate could adversely affect business, financial
condition and our results of operations.
If
we inaccurately forecast demand for our products, we may manufacture either insufficient or excess quantities, which, in either case,
could adversely affect our financial performance.
Our
planned international business expansions could adversely affect results if they fail to successfully transition and grow revenue.
We
depend on single source or a limited number of suppliers for some of the components of in our products, and the loss of any of these
suppliers could harm our business.
A
significant disruption in the operations of our assembly and golf shaft manufacturing facilities could have a material adverse effect
on our sales, profitability and results of operations.
A
disruption in the service or a significant increase in the cost of our primary delivery and shipping services for our products and component
parts or a significant disruption at shipping ports could have a material adverse effect on our business.
The
costs and availability of finished products, product components and raw materials could affect our operating results.
We
may be subject to product warranty claims that require the replacement or repair of products sold. Such warranty claims could adversely
affect our results of operations and relationships with our customers.
Our
growth initiatives require significant capital investments and there can be no assurance we will realize a positive return on these investments.
Sales
of our products by unauthorized retailers or distributors could adversely affect our authorized distribution channels and harm our reputation.
We
rely on research and development, technical innovation and high-quality products to successfully compete.
We
rely on information systems that assist in the management of our manufacturing, inventory, distribution, engineering, sales and other
functions. If our information systems were to fail to perform these functions adequately or if we experienced an interruption in operation,
including a breach in cyber security, our business and results of operations could suffer.
Cyber-attacks,
unauthorized access to, or accidental disclosure of, consumer personally-identifiable information, that we or our vendors collect through
our websites or stores on servers may result in significant expense and negatively impact our reputation and business.
We
are subject to many federal, state, local and foreign laws, as well as other statutory and regulatory requirements, with which compliance
can be both costly and complex. Our failure to comply with, or adapt to changes in these laws or requirements, could have an adverse
impact on our business.
Regulations
related to “conflict minerals” require us to incur additional expenses and could limit the supply and increase the cost of
certain metals used in manufacturing our products.
We
are subject to environmental, health and safety laws and regulations, which could subject us to liabilities, increased costs or restrictions
of operations in the future.
Changes
in, or any failure to comply with, data privacy laws, regulations, and standards may adversely affect our business.
RISK
FACTORS
Investing
in our securities involves significant risks. Before making an investment decision, with respect to any of our securities, you should
carefully consider the information set forth in this prospectus, including under the heading “Risks Associated with our Business”
and in any applicable prospectus supplement and in the documents incorporated by reference into this prospectus, including our most recent
Annual Report on Form 10-K, as revised or supplemented by our subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K
on file with the SEC, all of which are incorporated herein by reference, and which may be amended, supplemented or superseded from time
to time by other reports we file with the SEC in the future
The
risks included in this prospectus, the applicable prospectus supplement and the documents we have incorporated by reference are not the
only ones we face. There may be other unknown or unpredictable economic, business, competitive, regulatory or other factors that could
have material adverse effects on our future results. The occurrence of any of these risks could materially adversely affect our business,
financial condition, results of operations and prospects. As a result, the value of our securities could decline and you could lose part
or all of your investment therein. Past financial performance may not be a reliable indicator of future performance and historical trends
should not be used to anticipate results or trends in future periods. Conditions that we currently deem to be immaterial may also materially
and adversely affect our business, financial condition, cash flows and results of operation. For more information, see “Information
Incorporated by Reference” in this prospectus.
THE
SECURITIES WE MAY OFFER
We
may offer shares of Common Stock and Preferred Stock, various series of debt securities, rights to purchase shares of Common Stock and
Preferred Stock, and/or warrants to purchase any such securities, either individually or in combination, up to a total dollar amount
of $25,000,000 from time to time under this prospectus, together with any applicable prospectus supplement and any related free writing
prospectuses, at prices and on terms to be determined by market conditions at the time of any 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
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principal amount or aggregate offering price; |
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maturity; |
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original
issue discount, if any; |
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rates
and times of payment of interest or 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; |
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restrictive
covenants, if any; |
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voting
or other rights, if any; and |
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important
U.S. federal income tax considerations. |
Any
applicable prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may add, update
or change any of the information contained in this prospectus or in the documents we have incorporated by reference. However, no prospectus
supplement or free writing prospectus 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 BY US OF OUR SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
We
may sell the securities directly to investors or to or through agents, underwriters or dealers. We and our agents or underwriters, reserve
the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities to or through agents or underwriters,
we will include in the applicable prospectus supplement:
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the
names of those agents or underwriters; |
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applicable
fees, discounts and commissions to be paid to them; |
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details
regarding over-allotment or other options, if any; and |
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net proceeds to us. |
USE
OF PROCEEDS
Except
as described in any applicable prospectus supplement or in any related free writing prospectuses we have authorized for use in connection
with a specific offering, we currently intend to use the net proceeds from the sale of the securities offered by us hereunder, if any,
for working capital, research and development costs, capital expenditures, and general corporate purposes, funding future acquisition
of other companies, purchasing other assets or lines of business, repurchasing Common Stock, or for any other purpose we describe in
the applicable prospectus supplement. We have not determined the amounts we plan to spend on any of these areas or the timing of these
expenditures. As a result, our management will have broad discretion regarding the application of the net proceeds from the sale of securities
described in this prospectus.
DESCRIPTION
OF CAPITAL STOCK
The
following is a summary description of the Common Stock, which does not purport to be complete and is summarized from, and is qualified
in its entirety by reference to, our Certificate of Incorporation, and Bylaws, to which you should refer and copies of which are incorporated
herein by reference as Exhibits 3.1 and 3.2, respectively, and to the registration statement on Form S-3 of which this prospectus forms
a part. The summary below is also qualified by provisions of applicable law, including the Delaware General Corporation Law.
Common
Stock
We
are authorized to issue up to a total of 45,000,000 shares of common stock, par value $0.01 per share. Holders of our common stock are
entitled to one vote for each share held on all matters submitted to a vote of our stockholders. Holders of our common stock have no
cumulative voting rights.
Further,
holders of our common stock have no pre-emptive or conversion rights or other subscription rights. Upon our liquidation, dissolution
or winding-up, holders of our common stock are entitled to share in all assets remaining after payment of all liabilities and the liquidation
preferences of any of our outstanding shares of preferred stock. Subject to preferences that may be applicable to any outstanding shares
of preferred stock, holders of our common stock are entitled to receive dividends, if any, as may be declared from time to time by our
board of directors out of our assets which are legally available. Each outstanding share of our common stock is, and all shares of common
stock to be issued in this offering when they are paid for, will be fully paid and non-assessable.
The
holders of a majority of the shares of our common stock outstanding, represented in person or by proxy, are necessary to constitute a
quorum for the transaction of business at any meeting. Except in regards to proposals that require the approval of a majority of the
issued and outstanding shares, if a quorum is present, an action by stockholders entitled to vote on a matter is approved if the number
of votes cast in favor of the action exceeds the number of votes cast in opposition to the action, with the exception of the election
of directors, which requires a plurality of the votes cast.
Preferred
Stock
Our
board of directors has the authority, without further action by the stockholders, to issue up to 5,000,000 shares of preferred stock
in one or more series and to fix the designations, powers, preferences, privileges, and relative participating, optional, or special
rights as well as the qualifications, limitations, or restrictions of the preferred stock, including dividend rights, conversion rights,
voting rights, terms of redemption, and liquidation preferences, any or all of which may be greater than the rights of the common stock.
Our board of directors, without stockholder approval, will be able to issue convertible preferred stock with voting, conversion, or other
rights that could adversely affect the voting power and other rights of the holders of common stock. Preferred stock could be issued
quickly with terms calculated to delay or prevent a change of control or make removal of management more difficult. Additionally, the
issuance of preferred stock may have the effect of decreasing the market price of our common stock, and may adversely affect the voting
and other rights of the holders of common stock. At present, we have no plans to issue any shares of preferred stock following this offering.
We have not issued any shares of preferred stock.
Our
board of directors will fix the designations, voting powers, rights, preferences and privileges of each series, as well as the qualifications,
limitations or restrictions thereof, of the Preferred Stock of each series that we offer under this prospectus and applicable prospectus
supplements in the certificate of designation relating to that series. We will file as an exhibit to the registration statement of which
this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of any certificate of designation
that describes the terms of the series of Preferred Stock we are offering before the issuance of that series of Preferred Stock. This
description will include:
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the
title and stated value; |
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the
number of shares being offered; |
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the
liquidation preference per share; |
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the
purchase price per share; |
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the
dividend rate per share, dividend period and payment dates and method of calculation for dividends; |
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whether
dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
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our
right, if any, to defer payment of dividends and the maximum length of any such deferral period; |
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the
procedures for any auction and remarketing, if any; |
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the
provisions for a sinking fund, if any; |
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the
provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase
rights; |
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any
listing of the Preferred Stock on any securities exchange or market; |
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whether
the Preferred Stock will be convertible into Common Stock, and the conversion rate or conversion price, or how they will be calculated,
and the exchange period; |
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voting
rights, if any, of the Preferred Stock; |
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preemption
rights, if any; |
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restrictions
on transfer, sale or other assignment, if any; |
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a
discussion of any material or special United States federal income tax considerations applicable to the Preferred Stock; |
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the
relative ranking and preferences of the Preferred Stock as to dividend rights and rights if we liquidate, dissolve or wind up our
affairs; |
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the
limitations on issuances of any class or series of Preferred Stock ranking senior to or on a parity with the series of Preferred
Stock being issued as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and |
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any
other specific terms, rights, preferences, privileges, qualifications or restrictions of the Preferred Stock. |
Upon
issuance, the shares of Preferred Stock will be fully paid and non-assessable.
Anti-Takeover
Provisions of Delaware Law, our Certificate of Incorporation and our Bylaws
Delaware
Law
We
are governed by the provisions of Section 203 of the Delaware General Corporation Law. In general, Section 203 prohibits a publicly traded
Delaware corporation from engaging in a business combination with an interested stockholder for a period of three years after the date
of the transaction in which the person became an interested stockholder, unless the business combination is approved in a prescribed
manner. A business combination includes mergers, asset sales or other transactions resulting in a financial benefit to the stockholder.
An interested stockholder is a person who, together with affiliates and associates, owns (or within three years, did own) 15% or more
of the corporation’s voting stock, subject to certain exceptions. The statute could have the effect of delaying, deferring or preventing
a change in control of our Company.
Removal
of Directors
Our
Bylaws provide that stockholders holding at least 66-2/3% of the voting power may remove any director from office with or without cause.
Stockholders
not Entitled to Cumulative Voting
Our
Certificate of Incorporation does not permit stockholders to cumulate their votes in the election of directors. Accordingly, the election
of directors shall be decided by a majority of the votes cast at a meeting of the stockholders by the holders of stock entitled to vote
in the election; provided, however, if the number of nominees for director exceeds the directors to be elected, directors shall be elected
by a plurality of the votes of the shares represented in person or by proxy.
Choice
of Forum
Our
Certificate of Incorporation provides that the Court of Chancery of the State of Delaware will be the exclusive forum for any derivative
action or proceeding brought on our behalf; any action asserting a breach of fiduciary duty; any action asserting a claim against us
arising pursuant to the DGCL, our Certificate of Incorporation, or our Bylaws; any action to interpret, apply, enforce, or determine
the validity of our Certificate of Incorporation or Bylaws; or any action asserting a claim against us that is governed by the internal
affairs doctrine. The enforceability of similar choice of forum provisions in other companies’ Certificates of Incorporation has
been challenged in legal proceedings, and it is possible that a court could find these types of provisions to be inapplicable or unenforceable.
Amendment
Provisions
The
Board of Directors is expressly authorized and empowered to adopt, amend, alter, or repair or repeal the Bylaws without any action on
the part of the stockholders. The stockholders also have the power to adopt, amend or repeal the Bylaws upon the affirmative vote of
the holders of at least 66-2/3% of the voting power.
Board
of Directors Vacancies
Our
Certificate of Incorporation and Bylaws authorize either our board of directors or stockholders holding a majority of the voting power
to fill vacant directorships. In addition, the number of directors constituting our board of directors may be set only by resolution
of the majority of the incumbent directors.
Stockholder
Action; Special Meeting of Stockholders
Our
Certificate of Incorporation and Bylaws provide that our stockholders may take action by written consent. Our Certificate of Incorporation
and Bylaws further provide that special meetings of our stockholders may be called by a majority of the board of directors or pursuant
to demands from stockholders who own, in the aggregate, at least 15% of the outstanding voting power.
Advance
Notice Requirements for Stockholder Proposals and Director Nominations
Our
Bylaws provide that stockholders seeking to bring business before our annual meeting of stockholders, or to nominate candidates for election
as directors at our annual meeting of stockholders, must provide timely notice of their intent in writing. To be timely, a stockholder’s
notice must be delivered to the secretary at our principal executive offices not later than the close of business on the 90th
day nor earlier than the close of business on the 120th day prior to the first anniversary of the preceding year’s annual
meeting; provided, however, that in the event the date of the annual meeting is more than 30 days before or more than 60 days after such
anniversary date, or if no annual meeting was held in the preceding year, notice by the stockholder to be timely must be so delivered
not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business
on the later of the 90th day prior to such annual meeting or the 10th day following the day on which a public announcement
of the date of such meeting is first made by us. These provisions may preclude our stockholders from bringing matters before our annual
meeting of stockholders or from making nominations for directors at our annual meeting of stockholders.
These
provisions could discourage a potential acquirer from acquiring Sacks Parente Golf, Inc. or otherwise attempting to obtain control and
increase the likelihood that its incumbent directors and officers will retain their positions.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is VStock Transfer, LLC.
The
Nasdaq Capital Market
Our
common stock is listed on The Nasdaq Capital Market under the symbol “SPGC”.
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include in any applicable prospectus supplement or free writing prospectus,
summarizes certain general terms and provisions of the debt securities that we may offer under this prospectus. When we offer to sell
a particular series of debt securities, we will describe the specific terms of the series in a prospectus supplement. We will also indicate
in the prospectus supplement to what extent the general terms and provisions described in this prospectus apply to a particular series
of debt securities. To the extent the information contained in the prospectus supplement differs from this summary description, you should
rely on the information in the prospectus supplement.
We
may issue debt securities either separately, or together with, or upon the conversion or exercise of or in exchange for, other securities
described in this prospectus. Debt securities may be our senior, senior subordinated or subordinated obligations and, unless otherwise
specified in the prospectus supplement, the debt securities will be our direct, unsecured obligations and may be issued in one or more
series.
The
debt securities will be issued under an indenture between us and a trustee named in the prospectus supplement. We have summarized select
portions of the indenture below. The summary is not complete. The form of the indenture has been filed as an exhibit to the registration
statement of which this prospectus is a part, and you should read the indenture for provisions that may be important to you. Capitalized
terms used in the summary and not defined in this prospectus have the meanings specified in the indenture.
General
The
terms of each series of debt securities will be established by or pursuant to a resolution of our board of directors and set forth or
determined in the manner provided in a resolution of our board of directors, in an officer’s certificate or by a supplemental indenture.
The particular terms of each series of debt securities will be described in a prospectus supplement relating to such series (including
any pricing supplement or term sheet).
The
indenture would not limit the amount of debt securities that we may issue under it. Debt securities issued under the indenture may be
in one or more series with the same or various maturities, at par, at a premium, or at a discount. We will set forth in a prospectus
supplement (including any pricing supplement or term sheet) relating to any series of debt securities being offered, the aggregate principal
amount and the following terms of the debt securities, if applicable:
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the
title and ranking of the debt securities (including the terms of any subordination provisions); |
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the
price or prices (expressed as a percentage of the principal amount) at which we will sell the debt securities; |
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any
limit on the aggregate principal amount of the debt securities; |
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the
date or dates on which the principal on a particular series of debt securities is payable; |
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the
rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity,
commodity index, stock exchange index or financial index) at which the debt securities will bear interest, the date or dates from
which interest will accrue, the date or dates on which interest will commence and be payable and any regular record date for the
interest payable on any interest payment date; |
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the
place or places where principal of, and interest, if any, on the debt securities will be payable (and the method of such payment),
where the debt securities of such series may be surrendered for registration of transfer or exchange, and where notices and demands
to us in respect of the debt securities may be delivered; |
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the
period or periods within which, the price or prices at which and the terms and conditions upon which we may redeem the debt securities; |
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any
obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option
of a holder of debt securities and the period or periods within which, the price or prices at which and the terms and conditions
upon which the debt securities of a particular series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; |
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the
dates on which and the price or prices at which we will repurchase debt securities at the option of the holders of debt securities
and other detailed terms and provisions of these repurchase obligations; |
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the
denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof; |
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whether
the debt securities will be issued in the form of certificated debt securities or global debt securities; |
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the
portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the
principal amount; |
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the
currency of denomination of the debt securities, which may be U.S. dollars or any foreign currency, and if such currency of denomination
is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency; |
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the
designation of the currency, currencies or currency units in which payment of principal of, and premium and interest on, the debt
securities will be made; |
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if
payments of principal of, or premium or interest on, the debt securities will be made in one or more currencies or currency units
other than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these
payments will be determined; |
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the
manner in which the amounts of payment of principal of, and premium, if any, and interest on, the debt securities will be determined,
if these amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity
index, stock exchange index or financial index; |
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any
provisions relating to any security provided for the debt securities; |
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any
addition to, deletion of or change in the events of default described in this prospectus or in the indenture with respect to the
debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the
debt securities; |
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any
addition to, deletion of or change in the covenants described in this prospectus or in the indenture with respect to the debt securities; |
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any
depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities; |
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the
provisions, if any, relating to conversion or exchange of any debt securities of such series, including if applicable, the conversion
or exchange price and period, provisions as to whether conversion or exchange will be mandatory, the events requiring an adjustment
of the conversion or exchange price and provisions affecting conversion or exchange; |
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any
other terms of the debt securities, which may supplement, modify or delete any provision of the indenture as it applies to that series,
including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of the
securities; and |
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whether
any of our direct or indirect subsidiaries will guarantee the debt securities of that series, including the terms of subordination,
if any, of such guarantees. |
We
may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of
acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the material U.S. federal
income tax considerations applicable to any of these debt securities in the applicable prospectus supplement.
If
we denominate the purchase price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units,
or if the principal of, and premium, if any, and interest on, any series of debt securities is payable in a foreign currency or currencies
or a foreign currency unit or units, we will provide you with information on the restrictions, elections, general tax considerations,
specific terms and other information with respect to that issue of debt securities and such foreign currency or currencies or foreign
currency unit or units in the applicable prospectus supplement.
Transfer
and Exchange
Each
debt security will be represented by either one or more global securities registered in the name of The Depository Trust Company (“DTC”
or the “Depositary”) or a nominee of the Depositary (we will refer to any debt security represented by a global debt security
as a “book-entry debt security”), or a certificate issued in definitive registered form (we will refer to any debt security
represented by a certificated security as a “certificated debt security”) as set forth in the applicable prospectus supplement.
Except as set forth under the heading “Legal Ownership of Securities” below, book-entry debt securities will not be issuable
in certificated form.
Certificated
Debt Securities
You
may transfer or exchange certificated debt securities at any office we maintain for this purpose in accordance with the terms of the
indenture. No service charge will be made for any transfer or exchange of certificated debt securities, but we may require payment of
a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange.
You
may effect the transfer of certificated debt securities and the right to receive the principal of, premium and interest on certificated
debt securities only by surrendering the certificate representing those certificated debt securities and either reissuance by us or the
trustee of the certificate to the new holder or the issuance by us or the trustee of a new certificate to the new holder.
Global
Debt Securities and Book-Entry System
Each
global debt security representing book-entry debt securities will be deposited with, or on behalf of, the Depositary, and registered
in the name of the Depositary or a nominee of the Depositary. See the section of this prospectus entitled “Legal Ownership of Securities”
for more information.
Covenants
We
will set forth in the applicable prospectus supplement any restrictive covenants applicable to any issue of debt securities.
No
Protection in the Event of a Change of Control
Unless
we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions that may afford holders
of the debt securities protection in the event we have a change in control or in the event of a highly leveraged transaction (whether
or not such transaction results in a change in control) that could adversely affect holders of debt securities.
Consolidation,
Merger and Sale of Assets
We
may not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of our properties and assets to,
any person (a “successor person”) unless:
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we
are the surviving corporation or the successor person (if other than Sacks Parente Golf, Inc.) is a corporation organized and validly
existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and under
the indenture; |
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immediately
after giving effect to the transaction, no default or event of default, shall have occurred and be continuing; and |
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certain
other conditions are met. |
Notwithstanding
the above, any of our subsidiaries may consolidate with, merge into or transfer all or part of its properties to us.
Events
of Default
An
“event of default” means with respect to any series of debt securities, any of the following:
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default
in the payment of any interest upon any debt security of that series when it becomes due and payable, and continuance of such default
for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or with a paying agent prior
to the expiration of the 30-day period); |
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default
in the payment of principal of any debt security of that series at its maturity; |
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default
in the performance or breach of any other covenant or warranty by us in the indenture or any debt security (other than a covenant
or warranty that has been included in the indenture solely for the benefit of a series of debt securities other than that series),
which default continues uncured for a period of 60 days after we receive written notice from the trustee or Sacks Parente Golf, Inc.
and the trustee receive written notice from the holders of not less than 25% in principal amount of the outstanding debt securities
of that series as provided in the indenture; |
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certain
voluntary or involuntary events of bankruptcy, insolvency or reorganization of Sacks Parente Golf, Inc.; or |
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other event of default provided with respect to debt securities of that series that is described in the applicable prospectus supplement. |
No
event of default with respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization)
necessarily constitutes an event of default with respect to any other series of debt securities. The occurrence of certain events of
default or an acceleration under the indenture may constitute an event of default under certain indebtedness of ours or our subsidiaries
outstanding from time to time.
We
will provide the trustee written notice of any default or event of default within 30 days of becoming aware of the occurrence of such
default or event of default, which notice will describe in reasonable detail the status of such default or event of default and what
action we are taking or propose to take in respect thereof.
If
an event of default with respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee
or the holders of not less than 25% in principal amount of the outstanding debt securities of that series may, by a notice in writing
to us (and to the trustee if given by the holders), declare to be due and payable immediately the principal of (or, if the debt securities
of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) and accrued
and unpaid interest, if any, on all debt securities of that series. In the case of an event of default resulting from certain events
of bankruptcy, insolvency or reorganization, the principal (or such specified amount) of and accrued and unpaid interest, if any, on
all outstanding debt securities will become and be immediately due and payable without any declaration or other act on the part of the
trustee or any holder of outstanding debt securities. At any time after a declaration of acceleration with respect to debt securities
of any series has been made, but before a judgment or decree for payment of the money due has been obtained by the trustee, the holders
of a majority in principal amount of the outstanding debt securities of that series may rescind and annul the acceleration if all events
of default, other than the non-payment of accelerated principal and interest, if any, with respect to debt securities of that series,
have been cured or waived as provided in the indenture. We refer you to the prospectus supplement relating to any series of debt securities
that are discount securities for the particular provisions relating to acceleration of a portion of the principal amount of such discount
securities upon the occurrence of an event of default.
The
indenture provides that the trustee may refuse to perform any duty or exercise any of its rights or powers under the indenture unless
the trustee receives indemnity satisfactory to it against any cost, liability or expense that might be incurred by it in performing such
duty or exercising such right or power. Subject to certain rights of the trustee, the holders of a majority in principal amount of the
outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities of that
series.
No
holder of any debt security of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the
indenture or for the appointment of a receiver or trustee, or for any remedy under the indenture, unless:
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holder has previously given to the trustee written notice of a continuing event of default with respect to debt securities of that
series; and |
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the
holders of not less than 25% in principal amount of the outstanding debt securities of that series have made written request, and
offered indemnity or security satisfactory to the trustee, to the trustee to institute the proceeding as trustee, and the trustee
has not received from the holders of not less than a majority in principal amount of the outstanding debt securities of that series
a direction inconsistent with that request and has failed to institute the proceeding within 60 days. |
Notwithstanding
any other provision in the indenture, the holder of any debt security will have an absolute and unconditional right to receive payment
of the principal of, and premium and any interest on, that debt security on or after the due dates expressed in that debt security and
to institute suit for the enforcement of payment.
The
indenture requires us, within 120 days after the end of our fiscal year, to furnish to the trustee a statement as to compliance with
the indenture. If a default or event of default occurs and is continuing with respect to the securities of any series and if it is known
to a responsible officer of the trustee, the trustee shall mail to each holder of the securities of that series notice of a default or
event of default within 90 days after it occurs or, if later, after a responsible officer of the trustee has knowledge of such default
or event of default. The indenture provides that the trustee may withhold notice to the holders of debt securities of any series of any
default or event of default (except in payment on any debt securities of that series) with respect to debt securities of that series
if the trustee determines in good faith that withholding notice is in the interest of the holders of those debt securities.
Modification
and Waiver
We
and the trustee may modify, amend or supplement the indenture or the debt securities of any series without the consent of any holder
of any debt security:
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cure any ambiguity, defect or inconsistency; |
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to
comply with covenants in the indenture described above under the heading “Consolidation, Merger and Sale of Assets”; |
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to
provide for uncertificated securities in addition to or in place of certificated securities; |
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to
add guarantees with respect to debt securities of any series or secure debt securities of any series; |
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to
surrender any of our rights or powers under the indenture; |
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to
add covenants or events of default for the benefit of the holders of debt securities of any series; |
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to
comply with the applicable procedures of the Depositary; |
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to
make any change that does not adversely affect the rights of any holder of debt securities; |
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to
provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted by the
indenture; |
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to
effect the appointment of a successor trustee with respect to the debt securities of any series and to add to or change any of the
provisions of the indenture to provide for or facilitate administration by more than one trustee; or |
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to
comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act
of 1939. |
We
may also modify and amend the indenture with the consent of the holders of at least a majority in principal amount of the outstanding
debt securities of each series affected by the modification or amendment. We may not make any modification or amendment without the consent
of the holders of each affected debt security then outstanding if that amendment would:
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reduce
the amount of debt securities whose holders must consent to an amendment, supplement or waiver; |
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reduce
the rate of or extend the time for payment of interest (including default interest) on any debt security; |
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reduce
the principal of or premium on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date fixed
for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities; |
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reduce
the principal amount of discount securities payable upon acceleration of maturity; |
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waive
a default or event of default in the payment of the principal of, or premium or interest on, any debt security (except a rescission
of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the outstanding
debt securities of that series and a waiver of the payment default that resulted from such acceleration); |
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make
the principal of, or premium or interest on, any debt security payable in a currency other than that stated in the debt security; |
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make
any change to certain provisions of the indenture relating to, among other things, the right of the holders of debt securities to
receive payment of the principal of, and premium and interest on, those debt securities and to institute suit for the enforcement
of any such payment and to waivers or amendments; or |
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waive
a redemption payment with respect to any debt security. |
Except
for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series
may on behalf of the holders of all debt securities of that series waive our compliance with provisions of the indenture. The holders
of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all of the debt securities
of such series waive any past default under the indenture with respect to that series and its consequences, except a default in the payment
of the principal of, or any interest on, any debt security of that series; provided, however, that the holders of a majority in principal
amount of the outstanding debt securities of any series may rescind an acceleration and its consequences, including any related payment
default that resulted from the acceleration.
Defeasance
of the Debt Securities and Certain Covenants in Certain Circumstances
Legal
Defeasance
The
indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, we may be discharged from
any and all obligations in respect of the debt securities of any series (subject to certain exceptions). We will be so discharged upon
the deposit with the trustee, in trust, of cash and/or U.S. government obligations or, in the case of debt securities denominated in
a single currency other than U.S. dollars, cash and/or government obligations of the government that issued or caused to be issued such
currency, that, through the payment of interest and principal in accordance with their terms, will provide cash in an amount sufficient
in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment
of principal of, premium and interest on, and any mandatory sinking fund payments in respect of, the debt securities of that series on
the stated maturity of those payments in accordance with the terms of the indenture and those debt securities.
This
discharge may occur only if, among other things, we have delivered to the trustee an opinion of counsel stating that we have received
from, or there has been published by, the U.S. Internal Revenue Service a ruling or, since the date of execution of the indenture, there
has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion shall
confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes
as a result of the deposit, defeasance and discharge and will be subject to U.S. federal income tax on the same amounts and in the same
manner and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred.
Defeasance
of Certain Covenants
The
indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, upon compliance with certain
conditions:
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we
may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale of Assets” and certain
other covenants set forth in the indenture, as well as any additional covenants that may be set forth in the applicable prospectus
supplement; and |
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any
omission to comply with those covenants will not constitute a default or an event of default with respect to the debt securities
of that series (a “covenant defeasance”). |
The
conditions include:
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depositing
with the trustee cash and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other
than U.S. dollars, cash and/or government obligations of the government that issued or caused to be issued such currency, that, through
the payment of interest and principal in accordance with their terms, will provide cash in an amount sufficient in the opinion of
a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal
of, premium and interest on, and any mandatory sinking fund payments in respect of, the debt securities of that series on the stated
maturity of those payments in accordance with the terms of the indenture and those debt securities; and |
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delivering
to the trustee an opinion of counsel to the effect that we have received from, or there has been published by, the U.S. Internal
Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable U.S. federal
income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the holders of the debt securities
of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit and related
covenant defeasance and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the same times
as would have been the case if the deposit and related covenant defeasance had not occurred. |
No
Personal Liability of Directors, Officers, Employees or Stockholders
None
of our past, present or future directors, officers, employees or stockholders, as such, will have any liability for any of our obligations
under the debt securities or the indenture or for any claim based on, or in respect or by reason of, such obligations or their creation.
By accepting a debt security, each holder waives and releases all such liability. This waiver and release is part of the consideration
for the issue of the debt securities. However, this waiver and release may not be effective to waive liabilities under U.S. federal securities
laws, and it is the view of the SEC that such a waiver is against public policy.
Governing
Law
The
indenture and the debt securities, including any claim or controversy arising out of or relating to the indenture or the debt securities,
will be governed by the laws of the State of New York.
The
indenture provides that we, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably
waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or
relating to the indenture, the debt securities or the transactions contemplated thereby.
The
indenture provides that any legal suit, action or proceeding arising out of or based upon the indenture or the transactions contemplated
thereby may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the
State of New York in each case located in the City of New York, and we, the trustee and the holder of the debt securities (by their acceptance
of the debt securities) irrevocably submit to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The
indenture further provides that service of any process, summons, notice or document by mail (to the extent allowed under any applicable
statute or rule of court) to such party’s address set forth in the indenture will be effective service of process for any suit,
action or other proceeding brought in any such court. The indenture further provides that we, the trustee and the holders of the debt
securities (by their acceptance of the debt securities) irrevocably and unconditionally waive any objection to the laying of venue of
any suit, action or other proceeding in the courts specified above and irrevocably and unconditionally waive and agree not to plead or
claim any such suit, action or other proceeding has been brought in an inconvenient forum.
DESCRIPTION
OF WARRANTS
We
may issue warrants for the purchase of shares of Common Stock or Preferred Stock or for the purchase of debt securities. We may issue
warrants independently or together with other securities, and the warrants may be attached to or separate from any offered securities.
If a series of warrants will be issued under a separate warrant agreement to be entered into between us and the investors or a warrant
agent, we will so specify in the applicable prospectus supplement.
The
following summary of the material terms of the warrants and warrant agreements is subject to, and qualified in its entirety by reference
to, all of the provisions of the warrants and any warrant agreement applicable to a particular series of warrants. The terms of any warrants
offered under a prospectus supplement may differ from the terms described below. We urge you to read the applicable prospectus supplement
and any related free writing prospectus, as well as the complete warrants and any warrant agreements that contain the terms of the warrants.
The
material terms of any issue of warrants will be described in the prospectus supplement relating to the issue. Those terms may include:
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the
number of shares of Common Stock or Preferred Stock purchasable upon the exercise of warrants to purchase such shares and the price
at which such number of shares may be purchased upon exercise; |
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a
summary of the terms (including, without limitation, liquidation, dividend, conversion and voting rights) of the series of Preferred
Stock purchasable upon exercise of warrants to purchase Preferred Stock as set forth in the certificate of designations for such
series of Preferred Stock; |
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the
principal amount of debt securities that may be purchased upon exercise of a debt warrant and the exercise price for the warrants; |
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the
date, if any, on and after which the warrants and the related debt securities, Preferred Stock or Common Stock will be separately
transferable; |
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the
terms of any rights to redeem or call the warrants; |
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the
date on which the right to exercise the warrants will commence and the date on which the right will expire; |
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the
material U.S. federal income tax consequences applicable to the warrants; and |
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any
additional material terms of the warrants, including terms, procedures, and limitations relating to the exchange, exercise and settlement
of the warrants. |
Holders
of equity warrants will not be entitled:
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to
vote, consent or received dividends; |
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receive
notice as stockholders with respect to any meeting of stockholders for the election of our directors or any other matter; or |
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exercise
any rights as stockholders of Sacks Parente Golf, Inc. |
Each
warrant will entitle its holder to purchase the principal amount of debt securities or the number of shares of Preferred Stock or Common
Stock at the exercise price set forth in, or calculable as set forth in, the applicable prospectus supplement. Unless we otherwise specify
in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time up to the specified time on the
expiration date that we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised
warrants will become void. A holder of warrant certificates may exchange them for new warrant certificates of different denominations,
present them for registration of transfer and exercise them at the corporate trust office of the warrant agent or any other office indicated
in the applicable prospectus supplement. Until any warrants to purchase debt securities are exercised, the holder of the warrants will
not have any rights of holders of the debt securities that can be purchased upon exercise, including any rights to receive payments of
principal, premium or interest on the underlying debt securities or to enforce covenants in the applicable indenture. Until any warrants
to purchase Common Stock or Preferred Stock are exercised, the holders of the warrants will not have any rights of holders of the underlying
Common Stock or Preferred Stock, including any rights to receive dividends or payments upon any liquidation, dissolution or winding up
on the Common Stock or Preferred Stock, if any.
DESCRIPTION
OF RIGHTS
General
We
may issue rights to our stockholders to purchase shares of our common stock, preferred stock or the other securities described in this
prospectus. We may offer rights separately or together with one or more additional rights, debt securities, preferred stock, common stock
or warrants, or any combination of those securities in the form of units, as described in the applicable prospectus supplement. Each
series of rights will be issued under a separate rights agreement to be entered into between us and a bank or trust company, as rights
agent. The rights agent will act solely as our agent in connection with the certificates relating to the rights of the series of certificates
and will not assume any obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners
of rights. The following description sets forth certain general terms and provisions of the rights to which any prospectus supplement
may relate. The particular terms of the rights to which any prospectus supplement may relate and the extent, if any, to which the general
provisions may apply to the rights so offered will be described in the applicable prospectus supplement. To the extent that any particular
terms of the rights, rights agreement or rights certificates described in a prospectus supplement differ from any of the terms described
below, then the terms described below will be deemed to have been superseded by that prospectus supplement. We encourage you to read
the applicable rights agreement and rights certificate for additional information before you decide whether to purchase any of our rights.
We will provide in a prospectus supplement the following terms of the rights being issued:
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the
date of determining the stockholders entitled to the rights distribution; |
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the
aggregate number of shares of common stock, preferred stock or other securities purchasable upon exercise of the rights; |
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the
exercise price; |
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the
aggregate number of rights issued; |
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whether
the rights are transferrable and the date, if any, on and after which the rights may be separately transferred; |
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the
date on which the right to exercise the rights will commence, and the date on which the right to exercise the rights will expire; |
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the
method by which holders of rights will be entitled to exercise; |
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the
conditions to the completion of the offering, if any; |
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the
withdrawal, termination and cancellation rights, if any; |
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whether
there are any backstop or standby purchaser or purchasers and the terms of their commitment, if any; |
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whether
stockholders are entitled to oversubscription rights, if any; |
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any
applicable material U.S. federal income tax considerations; and |
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any
other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise of the
rights, as applicable. |
Each
right will entitle the holder of rights to purchase for cash the principal amount of shares of common stock, preferred stock or other
securities at the exercise price provided in the applicable prospectus supplement. Rights may be exercised at any time up to the close
of business on the expiration date for the rights provided in the applicable prospectus supplement.
Holders
may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly
completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement,
we will, as soon as practicable, forward the shares of common stock, preferred stock or other securities, as applicable, purchasable
upon exercise of the rights. If less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed
securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such
methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
Rights
Agent
The
rights agent for any rights we offer will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF UNITS
We
may issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series. We
may evidence each series of units by unit certificates that we will issue under a separate unit agreement. We may enter into unit agreements
with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate the name and address of the unit
agent in the applicable prospectus supplement relating to a particular series of units.
The
following description, together with the additional information included in any applicable prospectus supplement, summarizes the general
features of the units that we may offer under this prospectus. You should read any prospectus supplement and any free writing prospectus
that we may authorize to be provided to you related to the series of units being offered, as well as the complete unit agreements that
contain the terms of the units. Specific unit agreements will contain additional important terms and provisions and we will file each
unit agreement as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from
another report that we file with the SEC, the form of each unit agreement relating to units offered under this prospectus.
If
we offer any units, certain terms of that series of units will be described in the applicable prospectus supplement, including, without
limitation, the following, as applicable:
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the
title of the series of units; |
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identification
and description of the separate constituent securities comprising the units; |
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the
price or prices at which the units will be issued; |
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the
date, if any, on and after which the constituent securities comprising the units will be separately transferable; |
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the
material U.S. federal income tax considerations applicable to the units; and |
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any
other material terms of the units and their constituent securities. |
LEGAL
OWNERSHIP OF SECURITIES
We
may issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail
below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee, depositary
or warrant agent maintain for this purpose as the “holders” of those securities. These persons are the legal holders of the
securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered
in their own names, as “indirect holders” of those securities. As discussed below, indirect holders are not legal holders,
and investors in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry
Holders
We
may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be
represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf
of other financial institutions that participate in the depositary’s book-entry system. These participating institutions, which
are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only
the person in whose name a security is registered is recognized as the holder of that security. Securities issued in global form will
be registered in the name of the depositary or its participants. Consequently, for securities issued in global form, we will recognize
only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary
passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial
owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are
not obligated to do so under the terms of the securities.
As
a result, investors in book-entry securities will not own securities directly. Instead, they will own beneficial interests in a global
security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds
an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not holders,
of the securities.
Street
Name Holders
We
may terminate a global security or issue securities in non-global form. In these cases, investors may choose to hold their securities
in their own names or in “street name”. Securities held by an investor in street name would be registered in the name of
a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those
securities through an account he or she maintains at that institution.
For
securities held in street name, we will recognize only the intermediary banks, brokers and other financial institutions in whose names
the securities are registered as the holders of those securities, and we will make all payments on those securities to them. These institutions
pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their
customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders,
not holders, of those securities.
Legal
Holders
Our
obligations, as well as the obligations of any applicable trustee and of any third parties employed by us or a trustee, run only to the
legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street
name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has
no choice because we are issuing the securities only in global form.
For
example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that
holder is required, under agreements with depositary participants or customers or by law, to pass it along to the indirect holders but
does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences
of a default or of our obligation to comply with a particular provision of the indenture or for other purposes. In such an event, we
would seek approval only from the holders, and not the indirect holders, of the securities. Whether or how the holders contact the indirect
holders is the responsibility of the holders.
Special
Considerations for Indirect Holders
If
you hold securities through a bank, broker or other financial institution, either in book-entry form or in street name, you should check
with your own institution to find out:
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the
performance of third-party service providers; |
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how
it handles securities payments and notices; |
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whether
it imposes fees or charges; |
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how
it would handle a request for the holders’ consent, if ever required; |
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whether
and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the
future; |
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how
it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect
their interests; and |
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if
the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters. |
Global
Securities
A
global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities
represented by the same global securities will have the same terms.
Each
security issued in book-entry form will be represented by a global security that we deposit with and register in the name of a financial
institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless
we specify otherwise in the applicable prospectus supplement, DTC will be the depositary for all securities issued in book-entry form.
A
global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary,
unless special termination situations arise. We describe those situations below under the section entitled “Special Situations
When a Global Security Will Be Terminated” in this prospectus. As a result of these arrangements, the depositary, or its nominee,
will be the sole registered owner and holder of all securities represented by a global security, and investors will be permitted to own
only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other
financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose
security is represented by a global security will not be a holder of the security, but only an indirect holder of a beneficial interest
in the global security.
If
the prospectus supplement for a particular security indicates that the security will be issued in global form only, then the security
will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may
issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry
clearing system.
Special
Considerations for Global Securities
The
rights of an indirect holder relating to a global security will be governed by the account rules of the investor’s financial institution
and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of
securities and instead deal only with the depositary that holds the global security.
If
securities are issued only in the form of a global security, an investor should be aware of the following:
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an
investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her
interest in the securities, except in the special situations described below; |
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an
investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection
of his or her legal rights relating to the securities, as described above; |
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an
investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required
by law to own their securities in non-book-entry form; |
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an
investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the
securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; |
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the
depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating
to an investor’s interest in a global security; |
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we
and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership
interests in a global security, nor do we or any applicable trustee supervise the depositary in any way; |
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the
depositary may, and we understand that DTC will, require that those who purchase and sell interests in a global security within its
book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and |
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financial
institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in a
global security, may also have their own policies affecting payments, notices and other matters relating to the securities. |
There
may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for
the actions of any intermediary.
Special
Situations When a Global Security Will Be Terminated
In
a few special situations described below, the global security will terminate and interests in it will be exchanged for physical certificates
representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be the responsibility
of the investor. Investors must consult their own banks or brokers to learn how to have their interests in securities transferred to
their own names so that they will be direct holders. We have described the rights of holders and street name investors above.
Unless
we provide otherwise in the applicable prospectus supplement, the global security will terminate when the following special situations
occur:
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if
the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security
and we do not appoint another institution to act as depositary within 90 days; |
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if
we notify any applicable trustee that we wish to terminate that global security; or |
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if
an event of default has occurred with regard to securities represented by that global security and has not been cured or waived. |
The
applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular
series of securities covered by the applicable prospectus supplement. When a global security terminates, the depositary, and not we or
any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
PLAN
OF DISTRIBUTION
We
may sell the securities offered by this prospectus from time to time pursuant to underwritten public offerings, negotiated transactions,
block trades or a combination of these methods or through underwriters or dealers, through agents and/or directly to one or more purchasers.
The securities may be distributed from time to time in one or more transactions:
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at
a fixed price or prices, which may be changed; |
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at
market prices prevailing at the time of sale; |
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prices related to such prevailing market prices; or |
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negotiated prices. |
Each
time that we sell securities offered by this prospectus, we will provide a prospectus supplement or supplements that will describe the
method of distribution and set forth the terms and conditions of the offering of such securities, including the offering price of the
securities and the proceeds to us.
Offers
to purchase the securities being offered by this prospectus may be solicited directly. Agents may also be designated to solicit offers
to purchase the securities from time to time. Any agent involved in the offer or sale of our securities will be identified in a prospectus
supplement.
If
a dealer is utilized in the sale of the securities being offered by this prospectus, the securities will be sold to the dealer, as principal.
The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
If
an underwriter is utilized in the sale of the securities being offered by this prospectus, an underwriting agreement will be executed
with the underwriter at the time of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter
will use to make resales of the securities to the public. In connection with the sale of the securities, we, or the purchasers of securities
for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter
may sell the securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for which they may act as agent. Unless otherwise indicated in a prospectus
supplement, an agent will be acting on a best efforts basis and a dealer will purchase securities as a principal, and may then resell
the securities at varying prices to be determined by the dealer.
Any
compensation paid to underwriters, dealers or agents in connection with the offering of the securities, and any discounts, concessions
or commissions allowed by underwriters to participating dealers will be provided in the applicable prospectus supplement. Underwriters,
dealers and agents participating in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities
Act, and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to
be underwriting discounts and commissions. We may enter into agreements to indemnify underwriters, dealers and agents against civil liabilities,
including liabilities under the Securities Act, or to contribute to payments they may be required to make in respect thereof and to reimburse
those persons for certain expenses.
Any
Common Stock issued by us under this prospectus will be listed on The Nasdaq Capital Market, but any other securities may or may not
be listed on a national securities exchange. To facilitate the offering of securities, certain persons participating in the offering
may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. This may include over-allotments
or short sales of the securities, which involve the sale by persons participating in the offering of more securities than were sold to
them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open market
or by exercising their over-allotment option, if any. In addition, these persons may stabilize or maintain the price of the securities
by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers
participating in the offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions.
The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might
otherwise prevail in the open market. These transactions may be discontinued at any time.
If
indicated in the applicable prospectus supplement, underwriters or other persons acting as agents may be authorized to solicit offers
by institutions or other suitable purchasers to purchase the securities at the public offering price set forth in the prospectus supplement
pursuant to delayed delivery contracts providing for payment and delivery on the date or dates stated in the prospectus supplement. These
purchasers may include, among others, commercial and savings banks, insurance companies, pension funds, investment companies and educational
and charitable institutions.
We
may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In
addition, we may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties
in privately negotiated transactions. If the applicable prospectus supplement so indicates, in connection with those derivatives, the
third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions.
If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related
open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings
of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be named in
the applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities to a financial
institution or other third party that in turn may sell the securities short using this prospectus and an applicable prospectus supplement.
Such financial institution or other third party may transfer its economic short position to investors in our securities or in connection
with a concurrent offering of other securities.
The
specific terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
The
underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for
which they receive compensation.
LEGAL
MATTERS
TroyGould
PC, Los Angeles, California, has issued an opinion regarding certain legal matters relating to the issuance of the securities offered
by this prospectus on behalf of Sacks Parente Golf, Inc. Additional legal matters may be passed upon for us, or any underwriters, dealers
or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The
consolidated financial statements of Sacks Parente Golf, Inc. appearing in Sacks Parente Golf, Inc.’s Annual Report on Form 10-K
for the fiscal year ended December 31, 2023 have been audited by Weinberg & Company, P.A., an independent registered public accounting
firm, as stated in their report thereon, which includes an explanatory paragraph as to the Company’s ability to continue as a going
concern. Such financial statements have been incorporated herein by reference in reliance on such report given on the authority of such
firm as experts in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains a website at http://www.sec.gov
that contains reports, proxy and information statements and other information regarding us and other issuers that file electronically
with the SEC. This prospectus is only part of a registration statement on Form S-3 that we have filed with the SEC under the Securities
Act, and therefore omits certain information contained in the registration statement. We have also filed exhibits and schedules with
the registration statement that are excluded from this prospectus, and you should refer to the applicable exhibit or schedule for a complete
description of any statement referring to any contract or other document. You may access the registration statement of which this prospectus
forms a part by visiting http://www.sec.gov.
We
also maintain a website at www.sacksparente.com, through which you can access our SEC filings free of charge. The information set forth
on our website is not part of this prospectus. The reference to our website address does not constitute incorporation by reference of
the information contained on our website.
INFORMATION
INCORPORATED BY REFERENCE
The
rules of the SEC allow us to “incorporate by reference” into this prospectus information that we have filed with the SEC
under the Commission File No. 001-41701. This means we can disclose important information to you without actually including the specific
information in this prospectus by referring you to SEC filings that contain that information. The information incorporated by reference
is considered to be a part of this prospectus, provided that it will be automatically updated and superseded by information that we file
later with the SEC. This prospectus incorporates by reference the documents listed below:
| |
● |
Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2023, as filed with the SEC on March 18, 2024; |
| |
|
|
| |
● |
Our
Quarterly Reports on Form 10-Q, as filed with the SEC on April 30, 2024, and August 5, 2024; |
| |
|
|
| |
● |
Our
Current Reports on Form 8-K, as filed with the SEC on March 18, 2024, April 4, 2024, April 30, 2024, May 10, 2024, May 14, 2024,
June 5, 2024, July 24, 2024, July 26, 2024, and August 15, 2024; |
| |
|
|
| |
● |
Our
Information Statement on Form 14-C, as filed with the SEC on June 27, 2024; |
| |
|
|
| |
● |
the
description of the Common Stock incorporated by reference to our Registration Statement on Form S-1 that was filed with the SEC on
August 5, 2022, including any amendment or report filed for the purpose of updating such description; and |
| |
|
|
| |
● |
all
reports and other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this prospectus and prior to the termination or completion of the offering of securities under this prospectus shall be deemed
to be incorporated by reference in this prospectus and to be a part hereof from the date of filing such reports and other documents. |
Notwithstanding
the foregoing, we are not incorporating by reference any documents, portions of documents, exhibits or other information that is deemed
to have been furnished to, rather than filed with, the SEC.
Any
statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference into this prospectus shall
be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or
any other subsequently filed document that is deemed to be incorporated by reference into this prospectus modifies or supersedes the
statement. Any statements so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of
this prospectus.
We
will provide without charge to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon written
or oral request of any such person, a copy of any or all of the documents that has been or may be incorporated by reference into this
prospectus (excluding certain exhibits to the documents) at no cost. Any such request to us may be made by writing or telephoning our
Investor Relations department at the following address and telephone number:
551
Calle San Pablo
Camarillo,
California 93012
Telephone:
(855) 774-7888
You
may also access these documents on our website, www.sacksparente.com. The information contained on, or that can be accessed through,
our website is not a part of this prospectus. We have included our website address in this prospectus solely as an inactive textual reference.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the fees and expenses to be paid by us, other than underwriting discounts and commissions, in connection with
the offering of the securities described in this registration statement. All amounts shown are estimates except for the SEC registration
fee.
| SEC
registration fee |
|
$ |
3,690 |
|
| FINRA
filing fee |
|
|
* |
|
| Nasdaq
listing fee |
|
|
* |
|
| Printing
expenses |
|
|
* |
|
| Legal
fees and expenses |
|
|
* |
|
| Accounting
fees and expenses |
|
|
* |
|
| Transfer
agent and registrar fees and expenses |
|
|
* |
|
| Trustee
fees and expenses |
|
|
* |
|
| Depositary
fees and expenses |
|
|
* |
|
| Warrant
agent fees and expenses |
|
|
* |
|
| Miscellaneous
expenses |
|
|
* |
|
| Total |
|
$ |
3,690 |
|
| * |
These
fees and expenses will be based upon the number of securities offerings and the amount of securities offered and accordingly cannot
be estimated at this time. |
Item
15. Indemnification of Directors and Officers.
Section
102 of the Delaware General Corporation Law (the “DGCL”) permits a corporation to eliminate the personal liability of directors
of a corporation to the corporation or its shareholders for monetary damages for a breach of fiduciary duty as a director, except where
the director breached his or her duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated
a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper
personal benefit.
Section
145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation, or
a person serving at the request of the corporation for another corporation, partnership, joint venture, trust or other enterprise in
related capacities, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with an action, suit or proceeding to which he or she was or is a party or is threatened
to be made a party to any threatened, ending or completed action, suit or proceeding by reason of such position, if such person acted
in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, in
any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of actions
brought by or in the right of the corporation, no indemnification will be made with respect to any claim, issue or matter as to which
such person has been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or other
adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court deems proper.
Our
Bylaws allow for, and our Certificate of Incorporation, as amended, provides for, indemnification of our current and former directors,
officers, committee members or representatives to the full extent permitted by the DGCL. In addition, our Certificate of Incorporation
as amended, provides that to the fullest extent permitted by the DGCL, a director of Sacks Parente Golf, Inc. shall not be personally
liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director. These indemnification provisions may
be sufficiently broad to permit indemnification of our officers and directors for liabilities (including reimbursement of expenses incurred)
arising under the Securities Act. Our directors and officers are also covered by insurance policies maintained by us against certain
liabilities for actions taken in their capacities as such, including liabilities under the Securities Act. The foregoing summary is qualified
in its entirety by reference to the terms and provisions of such documents or arrangements referred above, including our Certificate
of Incorporation, as amended, and our Amended and Restated Bylaws, to which you should refer and copies of which are incorporated herein
by reference as Exhibits 3.1, 3.2 and 3.5, respectively, to the registration statement on Form S-3, of which this prospectus forms a
part.
Item
16. Exhibits.
A
list of the exhibits filed with this registration statement on Form S-3 is set forth on the Exhibit Index and is incorporated herein
by reference.
Item
17. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement; notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(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 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 communications 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 Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and
will be governed by the final adjudication of such issue.
(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 (the “Act”) in accordance with the rules and regulations
prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the Act.
EXHIBIT
INDEX
| Exhibit
No. |
|
Description |
| |
|
|
| 3.1 |
|
Certificate of Incorporation of Sacks Parente Golf, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Registration Statement on Form S-1, filed on August 5, 2022) |
| |
|
|
| 3.2 |
|
Bylaws of Sacks Parente Golf, Inc. (incorporated by reference to Exhibit 3.2 to the Company’s Registration Statement on Form S-1, filed on August 5, 2022) |
| |
|
|
| 5.1 |
|
Opinion of TroyGould PC as to the legality of securities being issued |
| |
|
|
| 10.1 |
|
License Agreement dated July 24, 2018 between Sacks Parente Golf Company, LLC and Parcks Designs, LLC. (incorporated by reference to Exhibit 10.1 to the Company’s Registration Statement on Form S-1, filed on August 5, 2022) |
| |
|
|
| 10.2 |
|
Agreement dated May 25, 2022 among the Company, Nippon Xport Ventures, Inc. and Parcks Designs, LLC (incorporated by reference to Exhibit 10.2 to the Company’s Registration Statement on Form S-1, filed on August 5, 2022) |
| |
|
|
| 10.3 |
|
Patent Assignment dated August 7, 2018 between Sacks Parente Golf Company, LLC and Richard E. Parente and Steven Sacks. (incorporated by reference to Exhibit 10.3 to the Company’s Registration Statement on Form S-1, filed on August 5, 2022) |
| |
|
|
| 10.4 |
|
2022 Equity Incentive Plan (incorporated by reference to Exhibit 10.4 to the Company’s Registration Statement on Form S-1, filed on August 5, 2022) |
| |
|
|
| 10.5 |
|
Amendment to 2022 Equity Incentive Plan (incorporated by reference to Appendix A to the Schedule 14C filed on November 2, 2023) |
| |
|
|
| 23.1 |
|
Consent of Weinberg & Company P.A., Independent Registered Public Accounting Firm |
| |
|
|
| 23.2 |
|
Consent of TroyGould PC (included in Exhibit 5.1) |
| |
|
|
| 97.1 |
|
Executive Compensation Clawback Policy (Incorporated by reference to Exhibit 97.1 to the Company’s Annual Report on Form 10-K, filed on March 8, 2024) |
| |
|
|
| 101.INS
|
|
Inline
XBRL Instance Document** |
| |
|
|
| 101.SCH
|
|
Inline
XBRL Taxonomy Extension Schema Document** |
| |
|
|
| 101.CAL
|
|
Inline
XBRL Taxonomy Extension Calculation Linkbase Document** |
| |
|
|
| 101.DEF
|
|
Inline
XBRL Taxonomy Extension Definition Linkbase Document** |
| |
|
|
| 101.LAB
|
|
Inline
XBRL Taxonomy Extension Label Linkbase Document** |
| |
|
|
| 101.PRE
|
|
Inline
XBRL Taxonomy Extension Presentation Linkbase Document** |
| |
|
|
| 104 |
|
Cover
Page Interactive Data File (embedded within the Inline XBRL document) |
| |
|
|
| 107 |
|
Filing Fee Table |
(b)
Exhibits
See
Item 15(a) (3) above.
(c)
Financial Statement Schedules
See
Item 15(a) (2) above.
SIGNATURES
In
accordance with Section 13 or 15(d) of the Exchange Act, the registrant caused this Report to be signed on its behalf by the undersigned,
thereunto duly authorized.
| Date:
August 20, 2024 |
SACKS
PARENTE GOLF, INC. |
| |
a
Delaware corporation |
| |
|
|
| |
By:
|
/s/
Greg Campbell |
| |
|
Greg
Campbell |
| |
|
Executive
Chairman |
In
accordance with the Exchange Act, this Report has been signed below by the following persons on behalf of the registrant and in the capacities
and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Greg Campbell |
|
Executive
Chairman, Chairman of the Board |
|
August
20, 2024 |
| Greg
Campbell |
|
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
| /s/
Steve Handy |
|
Chief
Financial Officer |
|
August
20, 2024 |
| Steve
Handy |
|
(Principal
Financial Officer) |
|
|
| |
|
|
|
|
| /s/
Dotti Pepper |
|
Director |
|
August
20, 2024 |
| Dotti
Pepper |
|
|
|
|
| |
|
|
|
|
| /s/
Brett Hoge |
|
Director |
|
August
20, 2024 |
| Brett
Hoge |
|
|
|
|
| |
|
|
|
|
| /s/
Akinobu Yorihiro |
|
Director |
|
August
20, 2024 |
| Akinobu
Yorihiro |
|
|
|
|
| |
|
|
|
|
| /s/
Jane Casanta |
|
Director |
|
August
20, 2024 |
| Jane
Casanta |
|
|
|
|
Exhibit 4.7
SACKS PARENTE GOLF, INC.
INDENTURE
Dated as of ______, 20 _____
____________
Trustee
TABLE OF CONTENTS (cont.)
| |
|
|
Page |
| ARTICLE I |
DEFINITIONS AND INCORPORATION BY REFERENCE |
|
1 |
| Section 1.1 |
Definitions |
|
1 |
| Section 1.2 |
Other Definitions |
|
4 |
| Section 1.3 |
Incorporation by Reference of Trust Indenture Act |
|
4 |
| Section 1.4 |
Rules of Construction |
|
4 |
| |
|
|
|
| ARTICLE II |
THE SECURITIES |
|
4 |
| Section 2.1 |
Issuable in Series |
|
4 |
| Section 2.2 |
Establishment of Terms of Series of Securities |
|
5 |
| Section 2.3 |
Execution and Authentication |
|
6 |
| Section 2.4 |
Registrar and Paying Agent |
|
7 |
| Section 2.5 |
Paying Agent to Hold Money in Trust |
|
8 |
| Section 2.6 |
Securityholder Lists |
|
8 |
| Section 2.7 |
Transfer and Exchange |
|
8 |
| Section 2.8 |
Mutilated, Destroyed, Lost and Stolen Securities |
|
8 |
| Section 2.9 |
Outstanding Securities |
|
9 |
| Section 2.10 |
Treasury Securities |
|
9 |
| Section 2.11 |
Temporary Securities |
|
10 |
| Section 2.12 |
Cancellation |
|
10 |
| Section 2.13 |
Defaulted Interest |
|
10 |
| Section 2.14 |
Global Securities |
|
10 |
| Section 2.15 |
CUSIP Numbers |
|
11 |
| |
|
|
|
| ARTICLE III |
REDEMPTION |
|
12 |
| Section 3.1 |
Notice to Trustee |
|
12 |
| Section 3.2 |
Selection of Securities to be Redeemed |
|
12 |
| Section 3.3 |
Notice of Redemption |
|
12 |
| Section 3.4 |
Effect of Notice of Redemption |
|
13 |
| Section 3.5 |
Deposit of Redemption Price |
|
13 |
| Section 3.6 |
Securities Redeemed in Part |
|
13 |
| |
|
|
|
| ARTICLE IV |
COVENANTS |
|
13 |
| Section 4.1 |
Payment of Principal and Interest |
|
13 |
| Section 4.2 |
SEC Reports |
|
13 |
| Section 4.3 |
Compliance Certificate |
|
14 |
| Section 4.4 |
Stay, Extension and Usury Laws |
|
14 |
TABLE OF CONTENTS (cont.)
| |
|
|
Page |
| ARTICLE V |
SUCCESSORS |
|
14 |
| Section 5.1 |
When Company May Merge, Etc |
|
14 |
| Section 5.2 |
Successor Corporation Substituted |
|
14 |
| |
|
|
|
| ARTICLE VI |
DEFAULTS AND REMEDIES |
|
15 |
| Section 6.1 |
Events of Default |
|
15 |
| Section 6.2 |
Acceleration of Maturity |
|
16 |
| Section 6.3 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
|
16 |
| Section 6.4 |
Trustee May File Proofs of Claim |
|
17 |
| Section 6.5 |
Trustee May Enforce Claims Without Possession of Securities |
|
17 |
| Section 6.6 |
Application of Money Collected |
|
17 |
| Section 6.7 |
Limitation on Suits |
|
18 |
| Section 6.8 |
Unconditional Right of Holders to Receive Principal and Interest |
|
18 |
| Section 6.9 |
Restoration of Rights and Remedies |
|
18 |
| Section 6.10 |
Rights and Remedies Cumulative |
|
18 |
| Section 6.11 |
Delay or Omission Not Waiver |
|
19 |
| Section 6.12 |
Control by Holders |
|
19 |
| Section 6.13 |
Waiver of Past Defaults |
|
19 |
| Section 6.14 |
Undertaking for Costs |
|
19 |
| |
|
|
|
| ARTICLE VII |
TRUSTEE |
|
20 |
| Section 7.1 |
Duties of Trustee |
|
20 |
| Section 7.2 |
Rights of Trustee |
|
21 |
| Section 7.3 |
Individual Rights of Trustee |
|
22 |
| Section 7.4 |
Trustee’s Disclaimer |
|
22 |
| Section 7.5 |
Notice of Defaults |
|
22 |
| Section 7.6 |
Reports by Trustee to Holders |
|
22 |
| Section 7.7 |
Compensation and Indemnity |
|
22 |
| Section 7.8 |
Replacement of Trustee |
|
23 |
| Section 7.9 |
Successor Trustee by Merger, Etc |
|
24 |
| Section 7.10 |
Eligibility |
|
24 |
| Section 7.11 |
Preferential Collection of Claims Against Company |
|
24 |
TABLE OF CONTENTS (cont.)
| |
|
|
Page |
| ARTICLE VIII |
SATISFACTION AND DISCHARGE |
|
24 |
| Section 8.1 |
Satisfaction and Discharge of Indenture |
|
24 |
| Section 8.2 |
Application of Trust Funds |
|
25 |
| Section 8.3 |
Legal Defeasance of Securities of any Series |
|
25 |
| Section 8.4 |
Covenant Defeasance |
|
26 |
| Section 8.5 |
Repayment to Company |
|
27 |
| Section 8.6 |
Reinstatement |
|
27 |
| |
|
|
|
| ARTICLE IX |
AMENDMENTS AND WAIVERS |
|
28 |
| Section 9.1 |
Without Consent of Holders |
|
28 |
| Section 9.2 |
With Consent of Holders |
|
28 |
| Section 9.3 |
Limitations |
|
29 |
| Section 9.4 |
Compliance with Trust Indenture Act |
|
29 |
| Section 9.5 |
Revocation and Effect of Consents |
|
29 |
| Section 9.6 |
Notation on or Exchange of Securities |
|
30 |
| Section 9.7 |
Trustee Protected |
|
30 |
| |
|
|
|
| ARTICLE X |
MISCELLANEOUS |
|
30 |
| Section 10.1 |
Trust Indenture Act Controls |
|
30 |
| Section 10.2 |
Notices |
|
30 |
| Section 10.3 |
Communication by Holders with Other Holders |
|
31 |
| Section 10.4 |
Certificate and Opinion as to Conditions Precedent |
|
31 |
| Section 10.5 |
Statements Required in Certificate or Opinion |
|
31 |
| Section 10.6 |
Rules by Trustee and Agents |
|
32 |
| Section 10.7 |
Legal Holidays |
|
32 |
| Section 10.8 |
No Recourse Against Others |
|
32 |
| Section 10.9 |
Counterparts |
|
32 |
| Section 10.10 |
Governing Law, Waiver of Jury Trial, Consent to Jurisdiction |
|
32 |
| Section 10.11 |
No Adverse Interpretation of Other Agreements |
|
33 |
| Section 10.12 |
Successors |
|
33 |
| Section 10.13 |
Severability |
|
33 |
| Section 10.14 |
Table of Contents, Headings, Etc |
|
33 |
| Section 10.15 |
Securities in a Foreign Currency |
|
33 |
| Section 10.16 |
Judgment Currency |
|
34 |
| Section 10.17 |
Force Majeure |
|
34 |
| Section 10.18 |
U.S.A. Patriot Act |
|
34 |
| |
|
|
|
| ARTICLE XI |
SINKING FUNDS |
|
34 |
| Section 11.1 |
Applicability of Article |
|
34 |
| Section 11.2 |
Satisfaction of Sinking Fund Payments with Securities |
|
35 |
| Section 11.3 |
Redemption of Securities for Sinking Fund |
|
35 |
Sacks Parente Golf, Inc.
Reconciliation and tie between the Trust Indenture
Act of 1939 and
the Indenture, dated as of ________, 20 _____
| § 310(a)(1) |
|
7.10 |
| (a)(2) |
|
7.10 |
| (a)(3) |
|
Not Applicable |
| (a)(4) |
|
Not Applicable |
| (a)(5) |
|
7.10 |
| (b) |
|
7.10 |
| § 311(a) |
|
7.11 |
| (b) |
|
7.11 |
| (c) |
|
Not Applicable |
| § 312(a) |
|
2.6 |
| (b) |
|
10.3 |
| (c) |
|
10.3 |
| § 313(a) |
|
7.6 |
| (b)(1) |
|
7.6 |
| (b)(2) |
|
7.6 |
| (c)(1) |
|
7.6 |
| (d) |
|
7.6 |
| § 314(a) |
|
4.2, 10.5 |
| (b) |
|
Not Applicable |
| (c)(1) |
|
10.4 |
| (c)(2) |
|
10.4 |
| (c)(3) |
|
Not Applicable |
| (d) |
|
Not Applicable |
| (e) |
|
10.5 |
| (f) |
|
Not Applicable |
| § 315(a) |
|
7.1 |
| (b) |
|
7.5 |
| (c) |
|
7.1 |
| (d) |
|
7.1 |
| (e) |
|
6.14 |
| § 316(a) |
|
2.10 |
| (a)(1)(A) |
|
6.12 |
| (a)(1)(B) |
|
6.13 |
| (b) |
|
6.8 |
| § 317(a)(1) |
|
6.3 |
| (a)(2) |
|
6.4 |
| (b) |
|
2.5 |
| § 318(a) |
|
10.1 |
Note: This reconciliation and tie shall not, for any
purpose, be deemed to be part of the Indenture.
Indenture dated as of ______________,
20__ between Sacks Parente Golf, Inc., a Delaware corporation (the “Company”), and _________ (the “Trustee”).
Each party agrees as follows for
the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.
DEFINITIONS AND INCORPORATION BY REFERENCE
“Additional Amounts”
means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid
by the Company in respect of certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.
“Affiliate”
of any specified person means any other person directly or indirectly controlling or controlled by or under common control with such specified
person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled
by” and “under common control with”), as used with respect to any person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities
or by agreement or otherwise.
“Agent” means
any Registrar, Paying Agent or Notice Agent.
“Board of Directors”
means the board of directors of the Company or any duly authorized committee thereof.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and
delivered to the Trustee.
“Business Day”
means, unless otherwise provided by Board Resolution, Officer’s Certificate or supplemental indenture hereto for a particular Series,
any day except a Saturday, Sunday or a legal holiday in The City of New York, New York (or in connection with any payment, the place of
payment) on which banking institutions are authorized or required by law, regulation or executive order to close.
“Capital Stock”
means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock.
“Company” means
the party named as such above until a successor replaces it and thereafter means the successor.
“Company Order”
means a written order signed in the name of the Company by an Officer.
“Corporate Trust Office”
means the office of the Trustee at which at any particular time its corporate trust business related to this Indenture shall be principally
administered.
“Default” means
any event which is, or after notice or passage of time or both would be, an Event of Default.
“Depositary”
means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities,
the person designated as Depositary for such Series by the Company, which Depositary shall be a clearing agency registered under the Exchange
Act; and if at any time there is more than one such person, “Depositary” as used with respect to the Securities of any Series
shall mean the Depositary with respect to the Securities of such Series.
“Discount Security”
means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.2.
“Dollars” and
“$” means the currency of the United States of America.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Foreign Currency”
means any currency or currency unit issued by a government other than the government of the United States of America.
“Foreign Government Obligations”
means, with respect to Securities of any Series that are denominated in a Foreign Currency, direct obligations of, or obligations guaranteed
by, the government that issued or caused to be issued such currency for the payment of which obligations its full faith and credit is
pledged and which are not callable or redeemable at the option of the issuer thereof.
“GAAP” means
accounting principles generally accepted in the United States of America set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession,
which are in effect as of the date of determination.
“Global Security”
or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section
2.2 evidencing all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in the name
of such Depositary or nominee.
“Holder” or
“Securityholder” means a person in whose name a Security is registered.
“Indenture”
means this Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
“interest”
with respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Maturity”,
when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Officer” means
the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer or any Assistant Treasurer, the Secretary or any
Assistant Secretary, and any Vice President of the Company.
“Officer’s Certificate”
means a certificate signed by any Officer.
“Opinion of Counsel”
means a written opinion of legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company.
The opinion may contain customary limitations, conditions and exceptions.
“person” means
any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“principal”
of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, and any Additional Amounts in respect
of, the Security.
“Responsible Officer”
means any officer of the Trustee in its Corporate Trust Office having responsibility for administration of this Indenture and also means,
with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of his or
her knowledge of and familiarity with a particular subject.
“SEC” means
the Securities and Exchange Commission.
“Securities”
means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
“Series” or
“Series of Securities” means each series of debentures, notes or other debt instruments of the Company created pursuant
to Sections 2.1 and 2.2 hereof.
“Stated Maturity”
when used with respect to any Security, means the date specified in such Security as the fixed date on which the principal of such Security
or interest is due and payable.
“Subsidiary”
of any specified person means any corporation, association or other business entity of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries
of that person or a combination thereof.
“TIA” means
the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required
by any such amendment, the Trust Indenture Act as so amended.
“Trustee” means
the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each person who is
then a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to the Securities
of any Series shall mean the Trustee with respect to Securities of that Series.
“U.S. Government Obligations”
means securities which are direct obligations of, or guaranteed by, the United States of America for the payment of which its full faith
and credit is pledged and which are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary
receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt, provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such depositary
receipt.
| TERM |
|
DEFINED IN
SECTION |
| “Bankruptcy Law” |
|
6.1 |
| “Custodian” |
|
6.1 |
| “Event of Default” |
|
6.1 |
| “Judgment Currency” |
|
10.16 |
| “Legal Holiday” |
|
10.7 |
| “mandatory sinking fund payment” |
|
11.1 |
| “New York Banking Day” |
|
10.16 |
| “Notice Agent” |
|
2.4 |
| “optional sinking fund payment” |
|
11.1 |
| “Paying Agent” |
|
2.4 |
| “Registrar” |
|
2.4 |
| “Required Currency” |
|
10.16 |
| “Specified Courts” |
|
10.10 |
| “successor person” |
|
5.1 |
| C. |
Incorporation by Reference of Trust Indenture Act. |
Whenever this Indenture refers
to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
“Commission”
means the SEC.
“indenture securities”
means the Securities.
“indenture security holder”
means a Securityholder.
“indenture to be qualified”
means this Indenture.
“indenture trustee”
or “institutional trustee” means the Trustee.
“obligor” on
the indenture securities means the Company and any successor obligor upon the Securities.
All other terms used in this Indenture
that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined
herein are used herein as so defined.
| D. |
Rules of Construction. |
Unless the context otherwise requires:
(a) a term has the meaning assigned
to it;
(b) an accounting term not otherwise
defined has the meaning assigned to it in accordance with GAAP;
(c) “or” is not
exclusive;
(d) words in the singular include
the plural, and in the plural include the singular; and
(e) provisions apply to successive
events and transactions.
THE SECURITIES
The aggregate principal amount
of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series.
All Securities of a Series shall be identical except as may be set forth or determined in the manner provided in a Board Resolution, a
supplemental indenture hereto or an Officer’s Certificate detailing the adoption of the terms thereof pursuant to authority granted
under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officer’s
Certificate or supplemental indenture hereto detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution
may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall
accrue) are to be determined. Securities may differ between Series in respect of any matters, provided that all Series of Securities shall
be equally and ratably entitled to the benefits of this Indenture.
| B. |
Establishment of Terms of Series of Securities. |
At or prior to the issuance of
any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection 2.2.1 and either
as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.23) by or pursuant
to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental indenture hereto or Officer’s
Certificate:
| |
1. |
the title (which shall distinguish the Securities of that particular Series from the Securities of any other Series) and ranking (including the terms of any subordination provisions) of the Series; |
| |
2. |
the price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued; |
| |
3. |
any limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6); |
| |
4. |
the date or dates on which the principal of the Securities of the Series is payable; |
| |
5. |
the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if any, shall commence and be payable and any regular record date for the interest payable on any interest payment date; |
| |
6. |
the place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be delivered, and the method of such payment, if by wire transfer, mail or other means; |
| |
7. |
if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities of the Series may be redeemed, in whole or in part, at the option of the Company; |
| |
8. |
the obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; |
| |
9. |
the dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company at the option of the Holders thereof and other detailed terms and provisions of such repurchase obligations; |
| |
10. |
if other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall be issuable; |
| |
11. |
the forms of the Securities of the Series and whether the Securities will be issuable as Global Securities; |
| |
12. |
if other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2; |
| |
13. |
the currency of denomination of the Securities of the Series, which may be Dollars or any Foreign Currency, and if such currency of denomination is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency; |
| |
14. |
the designation of the currency, currencies or currency units in which payment of the principal of and interest, if any, on the Securities of the Series will be made; |
| |
15. |
if payments of principal of or interest, if any, on the Securities of the Series are to be made in one or more currencies or currency units other than that or those in which such Securities are denominated, the manner in which the exchange rate with respect to such payments will be determined; |
| |
16. |
the manner in which the amounts of payment of principal of or interest, if any, on the Securities of the Series will be determined, if such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index; |
| |
17. |
the provisions, if any, relating to any security provided for the Securities of the Series; |
| |
18. |
any addition to, deletion of or change in the Events of Default which applies to any Securities of the Series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2; |
| |
19. |
any addition to, deletion of or change in the covenants set forth in Articles IV or V hereof which applies to Securities of the Series; |
| |
20. |
any Depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such Series if other than those appointed herein; |
| |
21. |
the provisions, if any, relating to conversion or exchange of any Securities of such Series, including if applicable, the conversion price or exchange price, the conversion or exchange period, provisions as to whether conversion or exchange will be mandatory, at the option of the Holders thereof or at the option of the Company, the events requiring an adjustment of the conversion price or exchange price and provisions affecting conversion or exchange if such Series of Securities are redeemed; |
| |
22. |
any other terms of the Securities of the Series (which may supplement, modify or delete any provision of this Indenture insofar as it applies to such Series), including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of Securities of that Series; and |
| |
23. |
whether any of the Company’s direct or indirect Subsidiaries will guarantee the Securities of that Series, including the terms of subordination, if any, of such guarantees. |
All Securities of any one Series
need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by
or pursuant to the Board Resolution, supplemental indenture hereto or Officer’s Certificate referred to above.
| C. |
Execution and Authentication. |
An Officer shall sign the Securities
for the Company by manual or facsimile signature.
If an Officer whose signature
is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid
until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.
The Trustee shall at any time,
and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental
indenture hereto or Officer’s Certificate, upon receipt by the Trustee of a Company Order. Each Security shall be dated the date
of its authentication.
The aggregate principal amount
of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth
in the Board Resolution, supplemental indenture hereto or Officer’s Certificate delivered pursuant to Section 2.2, except as provided
in Section 2.8.
Prior to the issuance of Securities
of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution,
supplemental indenture hereto or Officer’s Certificate establishing the form of the Securities of that Series or of Securities within
that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an Officer’s Certificate complying
with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right
to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such
action may not be taken lawfully; or (b) if the Trustee in good faith by its board of directors or trustees, executive committee or a
trust committee of directors and/or vice presidents or a committee of Responsible Officers shall determine that such action would expose
the Trustee to personal liability to Holders of any then outstanding Series of Securities.
The Trustee may appoint an authenticating
agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may
do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent
has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
| D. |
Registrar and Paying Agent. |
The Company shall maintain, with
respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.2, an office
or agency where Securities of such Series may be presented or surrendered for payment (the “Paying Agent”), where Securities
of such Series may be surrendered for registration of transfer or exchange (the “Registrar”) and where notices and
demands to or upon the Company in respect of the Securities of such Series and this Indenture may be delivered (the “Notice Agent”).
The Registrar shall keep a register with respect to each Series of Securities and to their transfer and exchange. The Company will give
prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar, Paying Agent or
Notice Agent. If at any time the Company shall fail to maintain any such required Registrar, Paying Agent or Notice Agent or shall fail
to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands; provided, however, that any appointment of the Trustee as the Notice Agent shall exclude
the appointment of the Trustee or any office of the Trustee as an agent to receive the service of legal process on the Company.
The Company may also from time
to time designate one or more co-registrars, additional paying agents or additional notice agents and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations
to maintain a Registrar, Paying Agent and Notice Agent in each place so specified pursuant to Section 2.2 for Securities of any Series
for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change
in the name or address of any such co-registrar, additional paying agent or additional notice agent. The term “Registrar”
includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Notice
Agent” includes any additional notice agent. The Company or any of its Affiliates may serve as Registrar or Paying Agent.
The Company hereby appoints the
Trustee the initial Registrar, Paying Agent and Notice Agent for each Series unless another Registrar, Paying Agent or Notice Agent, as
the case may be, is appointed prior to the time Securities of that Series are first issued.
| E. |
Paying Agent to Hold Money in Trust. |
The Company shall require each
Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders of
any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series
of Securities, and will notify the Trustee in writing of any default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary
of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all money held by it
as Paying Agent. Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee shall serve as Paying
Agent for the Securities.
The Trustee shall preserve in
as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders of each
Series of Securities and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least ten days before each interest payment date and at such other times as the Trustee may request in writing a list,
in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders of each Series of
Securities.
| G. |
Transfer and Exchange. |
Where Securities of a Series are
presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of
Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions
are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s request.
No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Neither the Company nor the Registrar
shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the opening
of business fifteen days immediately preceding the sending of a notice of redemption of Securities of that Series selected for redemption
and ending at the close of business on the day such notice is sent, or (b) to register the transfer of or exchange Securities of any Series
selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or being
called for redemption in part.
| H. |
Mutilated, Destroyed, Lost and Stolen Securities. |
If any mutilated Security is surrendered
to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same
Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to
the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security
or indemnity bond as may be required by each of them to hold itself and any of its agents harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon receipt of
a Company Order the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security,
a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed,
lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security
under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series
issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly issued
hereunder.
The provisions of this Section
are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
| I. |
Outstanding Securities. |
The Securities outstanding at
any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described
in this Section as not outstanding.
If a Security is replaced pursuant
to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by
a bona fide purchaser.
If the Paying Agent (other than
the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient
to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and interest
on them ceases to accrue.
The Company may purchase or otherwise
acquire the Securities, whether by open market purchases, negotiated transactions or otherwise. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security (but see Section 2.10 below).
In determining whether the Holders
of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.2.
In determining whether the Holders
of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice, consent
or waiver, Securities of a Series owned by the Company or any Affiliate of the Company shall be disregarded, except that for the purposes
of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent
or waiver only Securities of a Series that a Responsible Officer of the Trustee knows are so owned shall be so disregarded.
Until definitive Securities are
ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary Securities
shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon receipt of a Company Order shall authenticate definitive
Securities of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged, temporary securities shall
have the same rights under this Indenture as the definitive Securities.
The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered
to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for transfer, exchange,
payment, replacement or cancellation and shall destroy such canceled Securities (subject to the record retention requirement of the Exchange
Act and the Trustee) and deliver a certificate of such cancellation to the Company upon written request of the Company. The Company may
not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.
If the Company defaults in a payment
of interest on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable
on the defaulted interest, to the persons who are Securityholders of the Series on a subsequent special record date. The Company shall
fix the record date and payment date. At least 10 days before the special record date, the Company shall send to the Trustee and to each
Securityholder of the Series a notice that states the special record date, the payment date and the amount of interest to be paid. The
Company may pay defaulted interest in any other lawful manner.
| |
1. |
Terms of Securities. A Board Resolution, a supplemental indenture hereto or an Officer’s Certificate shall establish whether the Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depositary for such Global Security or Securities. |
| |
2. |
Transfer and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 of this Indenture and in addition thereto, any Global Security shall be exchangeable pursuant to Section 2.7 of this Indenture for Securities registered in the names of Holders other than the Depositary for such Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary registered as a clearing agency under the Exchange Act within 90 days of such event or (ii) the Company executes and delivers to the Trustee an Officer’s Certificate to the effect that such Global Security shall be so exchangeable. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as the Depositary shall direct in writing in an aggregate principal amount equal to the principal amount of the Global Security with like tenor and terms. |
Except as provided in this Section
2.14.2, a Global Security may not be transferred except as a whole by the Depositary with respect to such Global Security to a nominee
of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such a successor Depositary.
| |
3. |
Legends. Any Global Security issued hereunder shall bear a legend in substantially the following form: |
“THIS SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY.
THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY,
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY”.
In addition, so long as the Depository
Trust Company (“DTC”) is the Depositary, each Global Security registered in the name of DTC or its nominee shall bear a legend
in substantially the following form:
“UNLESS THIS GLOBAL SECURITY IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN”.
| |
4. |
Acts of Holders. The Depositary, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under this Indenture. |
| |
5. |
Payments. Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof. |
| |
6. |
Consents, Declaration and Directions. The Company, the Trustee and any Agent shall treat a person as the Holder of such principal amount of outstanding Securities of such Series represented by a Global Security as shall be specified in a written statement of the Depositary or by the applicable procedures of such Depositary with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture. |
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.
REDEMPTION
The Company may, with respect
to any Series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay the Series
of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities.
If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part
of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee in writing of the redemption date and
the principal amount of Series of Securities to be redeemed. The Company shall give the notice at least 15 days before the redemption
date, unless a shorter period is satisfactory to the Trustee.
| B. |
Selection of Securities to be Redeemed. |
Unless otherwise indicated for
a particular Series by a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, if less than all the Securities
of a Series are to be redeemed, the Securities of the Series to be redeemed will be selected as follows: (a) if the Securities are in
the form of Global Securities, in accordance with the procedures of the Depositary, (b) if the Securities are listed on any national securities
exchange, in compliance with the requirements of the principal national securities exchange, if any, on which the Securities are listed,
or (c) if not otherwise provided for under clause (a) or (b) in the manner that the Trustee deems fair and appropriate, including by lot
or other method, unless otherwise required by law or applicable stock exchange requirements, subject, in the case of Global Securities,
to the applicable rules and procedures of the Depositary. The Securities to be redeemed shall be selected from Securities of the Series
outstanding not previously called for redemption. Portions of the principal of Securities of the Series that have denominations larger
than $1,000 may be selected for redemption. Securities of the Series and portions of them it selected for redemption shall be in amounts
of $1,000 or whole multiples of $1,000 or, with respect to Securities of any Series issuable in other denominations pursuant to Section
2.2.10, the minimum principal denomination for each Series and the authorized integral multiples thereof. Provisions of this Indenture
that apply to Securities of a Series called for redemption also apply to portions of Securities of that Series called for redemption.
Unless otherwise indicated for
a particular Series by Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, at least 15 days but not more
than 60 days before a redemption date, the Company shall send or cause to be sent by first-class mail or electronically, in accordance
with the procedures of the Depositary, a notice of redemption to each Holder whose Securities are to be redeemed.
The notice shall identify the
Securities of the Series to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the
Paying Agent;
(d) if any Securities are being
redeemed in part, the portion of the principal amount of such Securities to be redeemed and that, after the redemption date and upon surrender
of such Security, a new Security or Securities in principal amount equal to the unredeemed portion of the original Security shall be issued
in the name of the Holder thereof upon cancellation of the original Security;
(e) that Securities of the Series
called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(f) that interest on Securities
of the Series called for redemption ceases to accrue on and after the redemption date unless the Company defaults in the deposit of the
redemption price;
(g) the CUSIP number, if any; and
(h) any other information as may
be required by the terms of the particular Series or the Securities of a Series being redeemed.
At the Company’s request,
the Trustee shall give the notice of redemption in the Company’s name and at its expense, provided, however, that the Company has
delivered to the Trustee, at least 10 days (unless a shorter time shall be acceptable to the Trustee) prior to the notice date, an Officer’s
Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice.
| D. |
Effect of Notice of Redemption. |
Once notice of redemption is sent
as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption date and at the redemption
price. Except as otherwise provided in the supplemental indenture hereto, Board Resolution or Officer’s Certificate for a Series
of Securities, a notice of redemption pertaining to such Series may not be conditional. Upon surrender to the Paying Agent, such Securities
shall be paid at the redemption price plus accrued interest to the redemption date.
| E. |
Deposit of Redemption Price. |
On or before 11:00 a.m., New York
City time, on the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and
accrued interest, if any, on all Securities to be redeemed on that date.
| F. |
Securities Redeemed in Part. |
Upon surrender of a Security that
is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal in principal
amount to the unredeemed portion of the Security surrendered.
COVENANTS
| A. |
Payment of Principal and Interest. |
The Company covenants and agrees
for the benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal of and interest, if any,
on the Securities of that Series in accordance with the terms of such Securities and this Indenture. On or before 11:00 a.m., New York
City time, on the applicable payment date, the Company shall deposit with the Paying Agent money sufficient to pay the principal of and
interest, if any, on the Securities of each Series in accordance with the terms of such Securities and this Indenture.
To the extent any Securities of
a Series are outstanding, the Company shall deliver to the Trustee within 15 days after it files them with the SEC copies of the annual
reports and of the information, documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules
and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The
Company also shall comply with the other provisions of TIA § 314(a). Reports, information and documents filed with the SEC via the
EDGAR system will be deemed to be delivered to the Trustee as of the time of such filing via EDGAR for purposes of this Section 4.2.
Delivery of reports, information
and documents to the Trustee under this Section 4.2 are for informational purposes only and the Trustee’s receipt of the foregoing
shall not constitute constructive or actual notice of any information contained therein or determinable from information contained therein,
including the Company’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officer’s Certificates).
| C. |
Compliance Certificate. |
To the extent any Securities of
a Series are outstanding, the Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company,
an Officer’s Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed
and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the
best of his/her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture
and is not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event
of Default shall have occurred, describing all such Defaults or Events of Default of which the Officer may have knowledge).
| D. |
Stay, Extension and Usury Laws. |
The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been
enacted.
SUCCESSORS
| A. |
When Company May Merge, Etc. |
The Company shall not consolidate
with or merge with or into, or convey, transfer or lease all or substantially all of its properties and assets to, any person (a “successor
person”) unless:
(a) the Company is the surviving
corporation or the successor person (if other than the Company) is a corporation organized and validly existing under the laws of any
U.S. domestic jurisdiction and expressly assumes the Company’s obligations on the Securities and under this Indenture; and
(b) immediately after giving effect
to the transaction, no Default or Event of Default, shall have occurred and be continuing.
The Company shall deliver to the
Trustee prior to the consummation of the proposed transaction an Officer’s Certificate to the foregoing effect and an Opinion of
Counsel stating that the proposed transaction and any supplemental indenture hereto comply with this Indenture.
Notwithstanding the above, any
Subsidiary of the Company may consolidate with, merge into or transfer all or part of its properties to the Company. Neither an Officer’s
Certificate nor an Opinion of Counsel shall be required to be delivered in connection therewith.
| B. |
Successor Corporation Substituted. |
Upon any consolidation or merger,
or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section
5.1, the successor corporation formed by such consolidation or into or with which the Company is merged or to which such sale, lease,
conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor person has been named as the Company herein; provided, however,
that the predecessor Company in the case of a sale, conveyance or other disposition (other than a lease) shall be released from all obligations
and covenants under this Indenture and the Securities.
DEFAULTS AND REMEDIES
“Event of Default”,
wherever used herein with respect to Securities of any Series, means any one of the following events, unless in the establishing Board
Resolution, supplemental indenture hereto or Officer’s Certificate, it is provided that such Series shall not have the benefit of
said Event of Default:
(a) default in the payment of any
interest on any Security of that Series when it becomes due and payable, and continuance of such default for a period of 30 days (unless
the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior to 11:00 a.m., New York City
time, on the 30th day of such period); or
(b) default in the payment of principal
of any Security of that Series at its Maturity; or
(c) default in the performance or
breach of any covenant or warranty of the Company in this Indenture (other than defaults pursuant to paragraphs (a) or (b) above or pursuant
to a covenant or warranty that has been included in this Indenture solely for the benefit of Series of Securities other than that Series),
which default continues uncured for a period of 60 days after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the outstanding Securities of that
Series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice
of Default” hereunder; or
(d) the Company pursuant to or within
the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of
an order for relief against it in an involuntary case,
(iii) consents to the appointment
of a Custodian of it or for all or substantially all of its property,
(iv) makes a general assignment
for the benefit of its creditors, or
(v) generally is unable to pay
its debts as the same become due; or
(e) a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the
Company in an involuntary case,
(ii) appoints a Custodian of the
Company or for all or substantially all of its property, or
(iii) orders the liquidation of
the Company, and the order or decree remains unstayed and in effect for 60 days; or
(f) any other Event of Default provided
with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officer’s
Certificate, in accordance with Section 2.2.18.
The term “Bankruptcy
Law” means title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law. The Company will provide the Trustee written
notice of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event of Default, which
notice will describe in reasonable detail the status of such Default or Event of Default and what action the Company is taking or proposes
to take in respect thereof.
| B. |
Acceleration of Maturity; Rescission and Annulment. |
If an Event of Default with respect
to Securities of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to in Section 6.1(d)
or (e)) then in every such case the Trustee or the Holders of not less than 25% in principal amount of the outstanding Securities of that
Series may declare the principal amount (or, if any Securities of that Series are Discount Securities, such portion of the principal amount
as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that Series
to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) and accrued and unpaid interest, if any, shall become immediately due and payable. If an Event
of Default specified in Section 6.1(d) or (e) shall occur, the principal amount (or specified amount) of and accrued and unpaid interest,
if any, on all outstanding Securities shall ipso facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder.
At any time after such a declaration
of acceleration with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities of
that Series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if all Events
of Default with respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities
of that Series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect
any subsequent Default or impair any right consequent thereon.
| C. |
Collection of Indebtedness and Suits for Enforcement by Trustee. |
The Company covenants that if
(a) default is made in the payment
of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment
of principal of any Security at the Maturity thereof, or
(c) default is made in the deposit
of any sinking fund payment, if any, when and as due by the terms of a Security,
then, the Company will, upon demand of the
Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal
and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and any
overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the compensation, reasonable expenses, disbursements and advances
of the Trustee, its agents and counsel.
If the Company fails to pay such
amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against
the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect
to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights
and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper remedy.
| D. |
Trustee May File Proofs of Claim. |
In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative
to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for
the whole amount of principal and interest owing and unpaid in respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee (including any claim for the compensation, reasonable expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys
or other property payable or deliverable on any such claims and to distribute the same, and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due it for the compensation, reasonable expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
| E. |
Trustee May Enforce Claims Without Possession of Securities. |
All rights of action and claims
under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or
the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the compensation, reasonable
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities
in respect of which such judgment has been recovered.
| F. |
Application of Money Collected. |
Any money or property collected
by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money or property on account of principal or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts
due the Trustee under Section 7.7; and
Second: To the payment of the
amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for
principal and interest, respectively; and
Third: To the Company.
No Holder of any Security of any
Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given
written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;
(b) the Holders of not less than
25% in principal amount of the outstanding Securities of that Series shall have made written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have
offered to the Trustee indemnity or security satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred
by the Trustee in compliance with such request;
(d) the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with
such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding
Securities of that Series;
it being understood, intended and expressly covenanted
by the Holder of every Security with every other Holder and the Trustee that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other
of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders of the applicable Series.
| H. |
Unconditional Right of Holders to Receive Principal and Interest. |
Notwithstanding any other provision
in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal
of and interest, if any, on such Security on the Maturity of such Security, including the Stated Maturity expressed in such Security (or,
in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
| I. |
Restoration of Rights and Remedies. |
If the Trustee or any Holder has
instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
| J. |
Rights and Remedies Cumulative. |
Except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the
extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
| K. |
Delay or Omission Not Waiver. |
No delay or omission of the Trustee
or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
The Holders of a majority in principal
amount of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of
such Series, provided that
(a) such direction shall not be
in conflict with any rule of law or with this Indenture,
(b) the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such direction,
(c) subject to the provisions of
Section 7.1, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible
Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability, and
(d) prior to taking any action as
directed under this Section 6.12, the Trustee shall be entitled to indemnity satisfactory to it against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction.
| M. |
Waiver of Past Defaults. |
The Holders of not less than a
majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of such Series,
by written notice to the Trustee and the Company, waive any past Default hereunder with respect to such Series and its consequences, except
a Default in the payment of the principal of or interest on any Security of such Series (provided, however, that the Holders of a majority
in principal amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration). Upon any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent
or other Default or impair any right consequent thereon.
| N. |
Undertaking for Costs. |
All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series,
or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after
the Maturity of such Security, including the Stated Maturity expressed in such Security (or, in the case of redemption, on the redemption
date).
TRUSTEE
(a) If an Event of Default has occurred
and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance
of an Event of Default:
(i) The Trustee need perform only
those duties that are specifically set forth in this Indenture and no others.
(ii) In the absence of bad faith
on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein,
upon Officer’s Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements of this Indenture;
however, in the case of any such Officer’s Certificates or Opinions of Counsel which by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine such Officer’s Certificates and Opinions of Counsel to determine
whether or not they conform to the form requirements of this Indenture.
(c) The Trustee may not be relieved
from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(i) This paragraph does not limit
the effect of paragraph (b) of this Section.
(ii) The Trustee shall not be
liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining
the pertinent facts.
(iii) The Trustee shall not be
liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any Series in good faith
in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities of such Series relating
to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities of such Series in accordance with Section 6.12.
(d) Every provision of this Indenture
that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform
any duty or exercise any right or power unless it receives indemnity satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in performing such duty or exercising such right or power.
(f) The Trustee shall not be liable
for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee
need not be segregated from other funds except to the extent required by law.
(g) No provision of this Indenture
shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or
in the exercise of any of its rights or powers, if adequate indemnity against such risk is not assured to the Trustee in its satisfaction.
(h) The Paying Agent, the Registrar
and any authenticating agent shall be entitled to the protections and immunities as are set forth in paragraphs (e), (f) and (g) of this
Section and in Section 7.2, each with respect to the Trustee.
(a) The Trustee may rely on and
shall be protected in acting or refraining from acting upon any document (whether in its original or facsimile form) believed by it to
be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains
from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.
(c) The Trustee may act through
agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No Depositary shall be deemed
an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any Depositary.
(d) The Trustee shall not be liable
for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers, provided that
the Trustee’s conduct does not constitute willful misconduct or negligence.
(e) The Trustee may consult with
counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder without willful misconduct or negligence, and in reliance thereon.
(f) The Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of
Securities unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses
and liabilities which might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit.
(h) The Trustee shall not be deemed
to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities generally or the Securities of a particular Series and this Indenture.
(i) In no event shall the Trustee
be liable to any person for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including
but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage.
(j) The permissive right of the
Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty to do so.
| C. |
Individual Rights of Trustee. |
The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate of the Company
with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to
Sections 7.10 and 7.11.
The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s use of the proceeds
from the Securities, and it shall not be responsible for any statement in the Securities other than its authentication.
If a Default or Event of Default
occurs and is continuing with respect to the Securities of any Series and if it is known to a Responsible Officer of the Trustee, the
Trustee shall send to each Securityholder of the Securities of that Series notice of a Default or Event of Default within 90 days after
it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default. Except in the case
of a Default or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee may withhold the notice
if and so long as its corporate trust committee or a committee of its Responsible Officers in good faith determines that withholding the
notice is in the interests of Securityholders of that Series.
| F. |
Reports by Trustee to Holders. |
Within 60 days after each ____________
commencing ____________, ________, the Trustee shall transmit by mail to all Securityholders, as their names and addresses appear on the
register kept by the Registrar, a brief report dated as of such anniversary date, in accordance with, and to the extent required under,
TIA § 313.
A copy of each report at the time
of its mailing to Securityholders of any Series shall be filed with the SEC and each national securities exchange on which the Securities
of that Series are listed. The Company shall promptly notify the Trustee in writing when Securities of any Series are listed on any national
securities exchange.
| G. |
Compensation and Indemnity. |
The Company shall pay to the Trustee
from time to time compensation for its services as the Company and the Trustee shall from time to time agree upon in writing. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee
upon request for all reasonable out of pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses
of the Trustee’s agents and counsel.
The Company shall indemnify each
of the Trustee and any predecessor Trustee (including for the cost of defending itself) against any cost, expense or liability, including
taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred by it except as set forth in the
next paragraph in the performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the Company promptly
of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations
hereunder, unless and to the extent that the Company is materially prejudiced thereby. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have 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 will not be unreasonably withheld. This
indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse
any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or agent
of the Trustee through willful misconduct or negligence. To secure the Company’s payment obligations in this Section, the Trustee
shall have a lien prior to the Securities of any Series on all money or property held or collected by the Trustee, except that held in
trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses
or renders services after an Event of Default specified in Section 6.1(d) or (e) occurs, the expenses and the compensation for the services
are intended to constitute expenses of administration under any Bankruptcy Law. The provisions of this Section shall survive the termination
of this Indenture.
| H. |
Replacement of Trustee. |
A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment
as provided in this Section.
The Trustee may resign with respect
to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation. The
Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by so notifying
the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series if:
(a) the Trustee fails to comply
with Section 7.10;
(b) the Trustee is adjudged a bankrupt
or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer
takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable
of acting.
If the Trustee resigns or is removed
or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year
after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may appoint
a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect
to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of at least a majority in principal amount of the Securities of the applicable Series may
petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver
a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall
transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7, the resignation
or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail
a notice of its succession to each Securityholder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company’s obligations under Section 7.7 hereof shall continue for the benefit of the retiring Trustee with respect to expenses
and liabilities incurred by it for actions taken or omitted to be taken in accordance with its rights, powers and duties under this Indenture
prior to such replacement.
| I. |
Successor Trustee by Merger, Etc. |
If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor Trustee, subject to Section 7.10.
| J. |
Eligibility; Disqualification. |
This Indenture shall always have
a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee shall always have a combined capital and surplus
of at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA §
310(b).
| K. |
Preferential Collection of Claims Against Company. |
The Trustee is subject to TIA
§ 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject
to TIA § 311(a) to the extent indicated.
SATISFACTION AND DISCHARGE; DEFEASANCE
| A. |
Satisfaction and Discharge of Indenture. |
This Indenture shall upon Company
Order be discharged with respect to the Securities of any Series and cease to be of further effect as to all Securities of such Series
(except as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities of such Series
theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that have been replaced or
paid) have been delivered to the Trustee for cancellation; or
(ii) all such Securities of such
Series not theretofore delivered to the Trustee for cancellation
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(A) |
have become due and payable by reason of sending a notice of redemption or otherwise, or |
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(B) |
will become due and payable at their Stated Maturity within one year, or |
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(C) |
have been called for redemption or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, or |
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(D) |
are deemed paid and discharged pursuant to Section 8.3, as applicable; and the Company, in the case of (1), (2) or (3) above, shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount of money or U.S. Government Obligations, which amount shall be sufficient for the purpose of paying and discharging each installment of principal (including mandatory sinking fund or analogous payments) of and interest on all the Securities of such Series on the dates such installments of principal or interest are due; |
(b) the Company has paid or caused
to be paid all other sums payable hereunder by the Company; and
(c) the Company shall have delivered
to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating
to the satisfaction and discharge contemplated by this Section have been complied with.
Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.7, and, if money shall have been deposited
with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.2 and 8.5 shall survive.
| B. |
Application of Trust Funds; Indemnification. |
(a) Subject to the provisions of
Section 8.5, all money and U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section
8.1, 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations deposited
with the Trustee pursuant to Section 8.1, 8.3 or 8.4, shall be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest for whose payment such money has been
deposited with or received by the Trustee or to make mandatory sinking fund payments or analogous payments as contemplated by Sections
8.1, 8.3 or 8.4.
(b) The Company shall pay and shall
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations or Foreign Government
Obligations deposited pursuant to Sections 8.1, 8.3 or 8.4 or the interest and principal received in respect of such obligations other
than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or
pay to the Company from time to time upon Company Order any U.S. Government Obligations or Foreign Government Obligations or money held
by it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent certified public accountants
or investment bank expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which
then would have been required to be deposited for the purpose for which such U.S. Government Obligations or Foreign Government Obligations
or money were deposited or received. This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations or
Foreign Government Obligations held under this Indenture.
| C. |
Legal Defeasance of Securities of any Series. |
Unless this Section 8.3 is otherwise
specified pursuant to Section 2.2 to be inapplicable to Securities of any Series, the Company shall be deemed to have paid and discharged
the entire indebtedness on all the outstanding Securities of any Series on the 91st day after the date of the deposit referred to in subparagraph
(d) hereof, and the provisions of this Indenture, as it relates to such outstanding Securities of such Series, shall no longer be in effect
(and the Trustee, at the expense of the Company, shall, upon receipt of a Company Order, execute instruments acknowledging the same),
except as to:
(a) the rights of Holders of Securities
of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment of the principal of and each installment
of principal of and interest on the outstanding Securities of such Series on the Maturity of such principal or installment of principal
or interest and (ii) the benefit of any mandatory sinking fund payments applicable to the Securities of such Series on the day on which
such payments are due and payable in accordance with the terms of this Indenture and the Securities of such Series;
(b) the provisions of Sections 2.4,
2.5, 2.7, 2.8, 7.7, 8.2, 8.3, 8.5 and 8.6; and
(c) the rights, powers, trusts and
immunities of the Trustee hereunder and the Company’s obligations in connection therewith;
provided that, the following conditions shall have
been satisfied:
(d) the Company shall have irrevocably
deposited or caused to be deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds specifically pledged as security
for and dedicated solely to the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated in
Dollars, cash in Dollars and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign
Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest and principal
in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed
on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of
a nationally recognized firm of independent public accountants or investment bank expressed in a written certification thereof delivered
to the Trustee, to pay and discharge each installment of principal of and interest, on and any mandatory sinking fund payments in respect
of all the Securities of such Series on the dates such installments of principal or interest and such sinking fund payments are due;
(e) such deposit will not result
in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is
a party or by which it is bound;
(f) no Default or Event of Default
with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period ending
on the 91st day after such date;
(g) the Company shall have delivered
to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that (i) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such deposit, defeasance and discharge had not occurred;
(h) the Company shall have delivered
to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company; and
(i) the Company shall have delivered
to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating
to the defeasance contemplated by this Section have been complied with.
Unless this Section 8.4 is otherwise
specified pursuant to Section 2.2 to be inapplicable to Securities of any Series, the Company may omit to comply with respect to the Securities
of any Series with any term, provision or condition set forth under Sections 4.2, 4.3, 4.4 and 5.1 and, unless otherwise specified therein,
any additional covenants specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officer’s
Certificate delivered pursuant to Section 2.2 (and the failure to comply with any such covenants shall not constitute a Default or Event
of Default with respect to such Series under Section 6.1) and the occurrence of any event specified in a supplemental indenture for such
Series of Securities or a Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2 and designated as an Event
of Default shall not constitute a Default or Event of Default hereunder, with respect to the Securities of such Series, but, except as
specified above, the remainder of this Indenture and such Securities will be unaffected thereby; provided that the following conditions
shall have been satisfied:
(a) with reference to this Section
8.4, the Company has irrevocably deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee
as trust funds in trust for the purpose of making the following payments specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars and/or
U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a composite
currency), money and/or Foreign Government Obligations, which through the payment of interest and principal in respect thereof in accordance
with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than
one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants or investment bank expressed in a written certification thereof delivered to the Trustee, to
pay and discharge each installment of principal (including mandatory sinking fund or analogous payments) of and interest on all the Securities
of such Series on the dates such installments of principal or interest are due;
(b) such deposit will not result
in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is
a party or by which it is bound;
(c) no Default or Event of Default
with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered
to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that the Holders of the Securities of such Series
will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and covenant defeasance and will be
subject to Federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit
and covenant defeasance had not occurred;
(e) The Company shall have delivered
to the Trustee an Officer’s Certificate stating the deposit was not made by the Company with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company; and
(f) The Company shall have delivered
to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for
relating to the covenant defeasance contemplated by this Section have been complied with.
Subject to applicable abandoned
property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal
and interest that remains unclaimed for two years. After that, Securityholders entitled to the money must look to the Company for payment
as general creditors unless an applicable abandoned property law designates another person.
If the Trustee or the Paying Agent
is unable to apply any money deposited with respect to Securities of any Series in accordance with Section 8.1 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the obligations of the Company under this Indenture with respect to the Securities of such Series and under the Securities
of such Series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.1 until such time as the Trustee
or the Paying Agent is permitted to apply all such money in accordance with Section 8.1; provided, however, that if the
Company has made any payment of principal of or interest on or any Additional Amounts with respect to any Securities because of the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money
or U.S. Government Obligations held by the Trustee or Paying Agent after payment in full to the Holders.
AMENDMENTS AND WAIVERS
| A. |
Without Consent of Holders. |
The Company and the Trustee may
amend or supplement this Indenture or the Securities of one or more Series without the consent of any Securityholder:
(a) to cure any ambiguity, defect
or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated
Securities in addition to or in place of certificated Securities;
(d) to add guarantees with respect
to Securities of any Series or secure Securities of any Series;
(e) to surrender any of the Company’s
rights or powers under this Indenture;
(f) to add covenants or events of
default for the benefit of the holders of Securities of any Series;
(g) to comply with the applicable
procedures of the applicable depositary;
(h) to make any change that does
not adversely affect the rights of any Securityholder;
(i) to provide for the issuance
of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;
(j) to evidence and provide for
the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more Series and to add to or change
any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder
by more than one Trustee; or
(k) to comply with requirements
of the SEC in order to effect or maintain the qualification of this Indenture under the TIA.
| B. |
With Consent of Holders. |
The Company and the Trustee may
enter into a supplemental indenture hereto with the written consent of the Holders of at least a majority in principal amount of the outstanding
Securities of each Series affected by such supplemental indenture (including consents obtained in connection with a tender offer or exchange
offer for the Securities of such Series), for the purpose of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of any supplemental indenture hereto or of modifying in any manner the rights of the Securityholders
of each such Series. Except as provided in Section 6.13, the Holders of at least a majority in principal amount of the outstanding Securities
of any Series by notice to the Trustee (including consents obtained in connection with a tender offer or exchange offer for the Securities
of such Series) may waive compliance by the Company with any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for
the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental indenture
hereto or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture hereto or
waiver under this section becomes effective, the Company shall send to the Holders of Securities affected thereby, a notice briefly describing
the supplemental indenture or waiver. Any failure by the Company to send such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
Without the consent of each Securityholder
affected, an amendment or waiver may not:
(a) reduce the principal amount
of Securities whose Holders must consent to an amendment, supplement or waiver;
(b) reduce the rate of or extend
the time for payment of interest (including default interest) on any Security;
(c) reduce the principal or change
the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous
obligation;
(d) reduce the principal amount
of Discount Securities payable upon acceleration of the maturity thereof;
(e) waive a Default or Event of
Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration of the Securities
of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and a waiver of the
payment default that resulted from such acceleration);
(f) make the principal of or interest,
if any, on any Security payable in any currency other than that stated in the Security;
(g) make any change in Sections
6.8, 6.13 or 9.3 (this sentence); or
(h) waive a redemption payment with
respect to any Security, provided that such redemption is made at the Company’s option.
| D. |
Compliance with Trust Indenture Act. |
Every amendment to this Indenture
or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then in effect.
| E. |
Revocation and Effect of Consents. |
Until an amendment is set forth
in a supplemental indenture hereto or a waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by
the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s
Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent
as to his Security or portion of a Security if the Trustee receives the notice of revocation before the date of the supplemental indenture
or the date the waiver becomes effective.
Any amendment or waiver once effective
shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described in any of clauses
(a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.
The Company may, but shall not
be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the second
immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those
persons, shall be entitled to give such consent or to revoke any consent previously given or take any such action, whether or not such
Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record
date.
| F. |
Notation on or Exchange of Securities. |
The Company or the Trustee may
place an appropriate notation about an amendment or waiver on any Security of any Series thereafter authenticated. The Company in exchange
for Securities of that Series may issue and the Trustee shall authenticate upon receipt of a Company Order in accordance with Section
2.3 new Securities of that Series that reflect the amendment or waiver.
In executing, or accepting the
additional trusts created by, any supplemental indenture hereto permitted by this Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in relying upon, an
Officer’s Certificate or an Opinion of Counsel or both complying with Section 10.4. The Trustee shall sign all supplemental indentures
hereto upon delivery of such an Officer’s Certificate or Opinion of Counsel or both, except that the Trustee need not sign any supplemental
indenture that adversely affects its rights, duties, liabilities or immunities under this Indenture.
MISCELLANEOUS
| A. |
Trust Indenture Act Controls. |
If any provision of this Indenture
limits, qualifies, or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required
or deemed provision shall control.
Any notice or communication by
the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in writing and delivered in person
or mailed by first-class mail (registered or certified, return receipt requested), facsimile transmission, email or overnight air courier
guaranteeing next day delivery, to the other’s address:
if to the Company:
Sacks Parente Golf, Inc.
551 Calle San Pablo
Camarillo, California 93012
Attention: Chief Financial Officer
with a copy to:
TroyGould PC
1801 Century Park East, 16th Floor
Los Angeles, California 90067
Attention: David Ficksman
if to the Trustee:
__________________
__________________
Attention: _________
with a copy to:
_________________
_________________
Attention: ________
The Company or the Trustee by
notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to
a Securityholder shall be sent electronically or by first-class mail to his, her or its address shown on the register kept by the Registrar,
in accordance with the procedures of the Depositary. Failure to send a notice or communication to a Securityholder of any Series or any
defect in it shall not affect its sufficiency with respect to other Securityholders of that or any other Series.
If a notice or communication is
sent or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives
it.
If the Company sends a notice
or communication to Securityholders, it shall send a copy to the Trustee and each Agent at the same time.
Notwithstanding any other provision
of this Indenture or any Security, where this Indenture or any Security provides for notice of any event (including any notice of redemption)
to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given to the Depositary for such Security
(or its designee) pursuant to the customary procedures of such Depositary.
| C. |
Communication by Holders with Other Holders. |
Securityholders of any Series
may communicate pursuant to TIA § 312(b) with other Securityholders of that Series or any other Series with respect to their rights
under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA § 312(c).
| D. |
Certificate and Opinion as to Conditions Precedent. |
Upon any request or application
by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officer’s Certificate
stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(b) an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent have been complied with.
| E. |
Statements Required in Certificate or Opinion. |
Each certificate or opinion with
respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA §
314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
(a) a statement that the person
making such certificate or opinion has read such covenant or condition;
(b) a brief statement as to the
nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are
based;
(c) a statement that, in the opinion
of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether or
not, in the opinion of such person, such condition or covenant has been complied with.
| F. |
Rules by Trustee and Agents. |
The Trustee may make reasonable
rules for action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements
for its functions.
Unless otherwise provided by Board
Resolution, Officer’s Certificate or supplemental indenture hereto for a particular Series, a “Legal Holiday”
is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on
the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
| H. |
No Recourse Against Others. |
A director, officer, employee
or stockholder (past or present), as such, of the Company shall not have any liability for any obligations of the Company under the Securities
or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by
accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the
Securities.
This Indenture may be executed
in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement. The exchange of copies of this Indenture and
of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties
hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or
PDF shall be deemed to be their original signatures for all purposes.
| J. |
Governing Law, Waiver of Jury Trial, Consent to Jurisdiction. |
THIS INDENTURE AND THE SECURITIES, INCLUDING ANY
CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE INDENTURE OR THE SECURITIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK. THE COMPANY, THE TRUSTEE AND THE HOLDERS (BY THEIR ACCEPTANCE OF THE SECURITIES) EACH HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE,
THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Any legal suit, action or proceeding
arising out of or based upon this Indenture or the transactions contemplated hereby may be instituted in the federal courts of the United
States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York
(collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive jurisdiction of such
courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under
any applicable statute or rule of court) to such party’s address set forth above shall be effective service of process for any suit,
action or other proceeding brought in any such court. The Company, the Trustee and the Holders (by their acceptance of the Securities)
each hereby irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the
Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has
been brought in an inconvenient forum.
| K. |
No Adverse Interpretation of Other Agreements. |
This Indenture may not be used
to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
All agreements of the Company
in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
| N. |
Table of Contents, Headings, Etc. |
The Table of Contents, Cross Reference
Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
| O. |
Securities in a Foreign Currency. |
Unless otherwise specified in
a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section 2.2 of this Indenture
with respect to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action at the time
outstanding and, at such time, there are outstanding Securities of any Series which are denominated in more than one currency, then the
principal amount of Securities of such Series which shall be deemed to be outstanding for the purpose of taking such action shall be determined
by converting any such other currency into a currency that is designated upon issuance of any particular Series of Securities. Unless
otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section
2.2 of this Indenture with respect to a particular Series of Securities, such conversion shall be at the spot rate for the purchase of
the designated currency as published in The Financial Times in the “Currency Rates” section (or, if The Financial Times is
no longer published, or if such information is no longer available in The Financial Times, such source as may be selected in good faith
by the Company) on any date of determination. The provisions of this paragraph shall apply in determining the equivalent principal amount
in respect of Securities of a Series denominated in currency other than Dollars in connection with any action taken by Holders of Securities
pursuant to the terms of this Indenture. All decisions and determinations provided for in the preceding paragraph shall, in the absence
of manifest error, to the extent permitted by law, be conclusive for all purposes and irrevocably binding upon the Trustee and all Holders.
The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary
to convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the “Required
Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange
used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking
Day, then the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not
be discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected
by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day”
means any day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are authorized or required
by law, regulation or executive order to close.
In no event shall the Trustee
be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services, it being understood that the Trustee shall use reasonable best efforts which
are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
The parties hereto acknowledge
that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee is required to obtain, verify, and record information that
identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture
agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements
of the U.S.A. Patriot Act.
SINKING FUNDS
| A. |
Applicability of Article. |
The provisions of this Article
shall be applicable to any sinking fund for the retirement of the Securities of a Series if so provided by the terms of such Securities
pursuant to Section 2.2 and except as otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture.
The minimum amount of any sinking
fund payment provided for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking fund payment”
and any other amount provided for by the terms of Securities of such Series is herein referred to as an “optional sinking fund
payment”. If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may be subject
to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities of any Series as
provided for by the terms of the Securities of such Series.
| B. |
Satisfaction of Sinking Fund Payments with Securities. |
The Company may, in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such Securities
(1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than any of such Securities
previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to which such sinking fund
payment is applicable and which have been repurchased by the Company or redeemed either at the election of the Company pursuant to the
terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application of permitted optional sinking
fund payments or other optional redemptions pursuant to the terms of such Securities, provided that such Securities have not been previously
so credited. Such Securities shall be received by the Trustee, together with an Officer’s Certificate with respect thereto, not
later than 15 days prior to the date on which the Trustee begins the process of selecting Securities for redemption, and shall be credited
for such purpose by the Trustee at the price specified in such Securities for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities in lieu of cash
payments pursuant to this Section 11.2, the principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid
cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for redemption, except upon receipt of a
Company Order that such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next
succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall from time to time upon receipt
of a Company Order pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery
by the Company to the Trustee of Securities of that Series purchased by the Company having an unpaid principal amount equal to the cash
payment required to be released to the Company.
| C. |
Redemption of Securities for Sinking Fund. |
Not less than 45 days (unless
otherwise indicated in the Board Resolution, supplemental indenture hereto or Officer’s Certificate in respect of a particular Series
of Securities) prior to each sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an Officer’s
Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that Series,
the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting of Securities of that Series pursuant to Section 11.2, and the optional amount, if any, to be added in cash to
the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated to pay the amount therein specified. Not
less than 30 days (unless otherwise indicated in the Board Resolution, Officer’s Certificate or supplemental indenture hereto in
respect of a particular Series of Securities) before each such sinking fund payment date the Securities to be redeemed upon such sinking
fund payment date will be selected in the manner specified in Section 3.2 and the Company shall send or cause to be sent a notice of the
redemption thereof to be given in the name of and at the expense of the Company in the manner provided in and in accordance with Section
3.3. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections
3.4, 3.5 and 3.6.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the day and year first written above.
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SACKS PARENTE GOLF, INC. |
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By: |
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Name: |
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Its: |
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____________,as Trustee |
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By: |
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Name: |
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Its: |
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EXHIBIT 5.1
TroyGould PC
1801 Century Park East, 16th Floor
Los Angeles, California 90067
August 20, 2024
Sacks Parente Golf, Inc.
551 Calle San Pablo
Camarillo, California 93012
Re: Registration Statement
on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Sacks
Parente Golf, Inc., a Delaware corporation (the “Company”), in connection with the above-referenced Registration Statement
on Form S-3 (the “Registration Statement”), under the Securities Act of 1933, as amended (the “Securities
Act”), filed by the Company with the Securities and Exchange Commission (the “Commission”). The Registration
Statement relates to the Company’s offer, sale, and issuance from time to time, pursuant to Rule 415 under the Securities Act, of
the following securities of the Company with an aggregate public offering price of up to $25,000,000: (1) shares of the Company’s
common stock, par value $0.0001 per share (“Common Stock”); (2) shares of the Company’s preferred stock, par
value $0.0001 per share (“Preferred Stock”), which may be issued in one or more series; (3) debt securities of the
Company (“Debt Securities”), which may be issued in one or more series under an indenture proposed to be entered into
by the Company and a trustee (the “Trustee”) to be named in the indenture, the form of which is included as an exhibit
to the Registration Statement, and one or more board resolutions, supplements thereto or officer’s certificates thereunder (such
indenture, together with the applicable board resolution, supplement or officer’s certificate pertaining to the applicable series
of Debt Securities, the “Applicable Indenture”); (4) warrants to purchase shares of Common Stock, shares of Preferred
Stock, or Debt Securities, or any combination of such securities (“Warrants”); (5) stock purchase rights (the “Rights”)
entitling or obligating the holders thereof to purchase Common Stock or Preferred Stock from the Company at a future date or dates which
will be issued pursuant to a rights agreement (the “Rights Agreement”) to be entered into between the Company and a
rights agent (the “Rights Agent”); and (6) units consisting of any combination of shares of Common Stock, shares of
Preferred Stock, Debt Securities, and/or Warrants (“Units”). The Common Stock, the Preferred Stock, , the Debt Securities,
the Warrants, the Rights and the Units plus any additional Common Stock, Preferred Stock, Debt Securities, Warrants, Rights and Units
that may be registered pursuant to any subsequent registration statement that the Company hereafter files with the Commission pursuant
to Rule 462(b) under the Securities Act in connection with the offering contemplated by the Registration Statement collectively are referred
to in this opinion letter as the “Securities”. The Registration Statement includes a prospectus (the “Prospectus”),
which states that it will be supplemented from time to time by one or more supplements setting forth the specific terms of each offering
of Securities (each, a “Prospectus Supplement”).
This opinion letter is furnished
to you at your request and in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In connection with rendering the
opinions expressed below, we have reviewed and relied upon originals or copies of (1) the Registration Statement, (2) the Company’s
Certificate of Incorporation, as presently in effect (the “Certificate of Incorporation”), (3) the Company’s
Bylaws, as presently in effect (the “Bylaws”), (4) the resolutions adopted by the Company’s Board of Directors
(the “Board of Directors”) pertaining to the Registration Statement, the Securities, and related matters, and (5) such
certificates of public officials and officers of the Company, and such records of the Company and other documents, as we have deemed necessary
or appropriate as a basis for our opinions. We also have reviewed such matters of the law described in the following paragraph as we considered
necessary or appropriate as a basis for the opinions expressed below.
| Sacks Parente Golf, Inc. |
| August
20, 2024 |
| Page 2 |
The law covered by our opinions
expressed below is limited to (1) the General Corporation Law of the State of Delaware (the “Delaware Corporation Law”),
including applicable rules and regulations promulgated under the Delaware Corporation Law and applicable reported judicial decisions interpreting
the Delaware Corporation Law, (2) the internal laws of the State of California, excluding laws, rules, and regulations of any counties,
cities, municipalities, and local agencies within California, and (3) with respect only to the opinions expressed below in paragraph 3,
4 and 6 below regarding Debt Securities, Warrants and Units the internal laws of the State of New York, excluding laws, rules, and regulations
of any counties, cities, municipalities, and local agencies within New York.
We neither express nor imply any
opinion with respect to any other laws or the laws of any other jurisdiction. The Securities may be issued from time to time on a delayed
or continuous basis, and the opinions expressed below concern only laws that are in effect on the date of this opinion letter. We undertake
no, and hereby disclaim any, obligation to advise you of any change in any matter set forth in this opinion letter, whether based on a
change in laws, a change in any fact relating to the Company, or any other circumstance. This opinion letter is limited to the matters
expressly stated herein, and no opinions are to be inferred or may be implied beyond the opinions expressly set forth below. Without limiting
the generality of the foregoing, we neither express nor imply any opinion regarding the contents of the Registration Statement, the Prospectus,
or any Prospectus Supplement other than as expressly stated in this opinion letter with respect to the issuance of the Securities.
Based upon and subject to the
foregoing and the additional assumptions, qualifications, and limitations set forth below, we are of the opinion that:
1. With respect to any shares
of Common Stock offered by the Company pursuant to the Registration Statement, when (a) the issuance and the terms of the offering of
such shares of Common Stock have been duly authorized and approved by all necessary corporate action by the Board of Directors in conformity
with the Delaware Corporation Law and the Certificate of Incorporation, and (b) such shares have been duly issued and delivered against
payment of their full purchase price in an amount not less than the par value of such shares and in accordance with the duly executed
and delivered applicable purchase, underwriting, or similar agreement approved by the Board of Directors and the terms of the Registration
Statement, the Prospectus, and the applicable Prospectus Supplement (and, if issued upon the exercise, conversion, or exchange of any
Securities that are exercisable for, convertible into, or exchangeable for Common Stock, when such shares of Common Stock have been duly
issued and delivered as contemplated by the exercise, conversion, or exchange terms of such Securities). In rendering the foregoing opinion,
we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the Delaware
Corporation Law.
2. With respect to any shares
of any series of Preferred Stock offered by the Company pursuant to the Registration Statement, when (a) the issuance and the terms of
the offering of such shares of Preferred Stock have been duly authorized and approved by all necessary corporate action by the Board of
Directors in conformity with the Delaware Corporation Law and the Certificate of Incorporation, including a duly adopted certificate of
designations setting forth the rights, preferences, and privileges of such series of Preferred Stock conforming to the Delaware Corporation
Law and filed with the Secretary of State of the State of Delaware, and (b) such shares have been duly issued and delivered against payment
of their full purchase price in an amount not less than the par value of such shares and in accordance with the duly executed and delivered
applicable purchase, underwriting, or similar agreement approved by the Board of Directors and the terms of the Registration Statement,
the Prospectus, and the applicable Prospectus Supplement (and, if issued upon the exercise, conversion, or exchange of any Securities
that are exercisable for, convertible into, or exchangeable for Preferred Stock, when such shares of Preferred Stock have been duly issued
and delivered as contemplated by the exercise, conversion, or exchange terms of such Securities), such shares of Preferred Stock will
be validly issued, fully paid, and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with
all applicable notice requirements regarding uncertificated shares provided in the Delaware Corporation Law.
| Sacks Parente Golf, Inc. |
| August
20, 2024 |
| Page 3 |
3. With respect to any series
of Debt Securities offered by the Company pursuant to the Registration Statement, when (a) the Applicable Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), (b) the Trustee has been duly qualified
to act as trustee under the Applicable Indenture following the filing of a Form T-1 with the Commission, (c) the issuance and the terms
of the offering of such Debt Securities have been duly authorized and approved by all necessary corporate action by the Board of Directors,
(d) the Applicable Indenture has been duly executed and delivered by the Company following authorization and approval by all necessary
corporate action by the Board of Directors, (e) the Applicable Indenture has been duly executed and delivered by the Trustee, (f) such
Debt Securities have been duly executed, authenticated, issued, and delivered against payment of their full purchase price and in accordance
with the Indenture, the duly executed and delivered applicable purchase, underwriting, or similar agreement approved by the Board of Directors,
and the terms of the Registration Statement, the Prospectus, and the applicable Prospectus Supplement (and, if issued upon the exercise,
conversion, or exchange of any Securities that are exercisable for, convertible into, or exchangeable for Debt Securities, when such Debt
Securities have been duly issued and delivered as contemplated by the exercise, conversion, or exchange terms of such Securities), and
(g) any Securities that are issuable upon conversion of such Debt Securities have been duly authorized and approved (and, if applicable,
reserved for issuance) by all necessary corporate action by the Board of Directors, such Debt Securities will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms.
4. With respect to any Warrants
offered by the Company pursuant to the Registration Statement, when (a) the issuance and the terms of the offering of such Warrants have
been duly authorized and approved by all necessary corporate action by the Board of Directors, (b) such Warrants have been duly executed,
issued, and delivered against payment of their full purchase price and in accordance with the duly executed and delivered applicable warrant,
purchase, underwriting, or similar agreement approved by the Board of Directors and the terms of the Registration Statement, the Prospectus,
and the applicable Prospectus Supplement, and (c) the Securities that are issuable upon exercise of such Warrants have been duly authorized
and approved (and, if applicable, reserved for issuance) by all necessary corporate action by the Board of Directors, such Warrants will
constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
5. With respect to any Rights
offered by the Company pursuant to the Registration Statement, when (a) the issuance and terms of the offering of such Rights have been
duly authorized and approved by all necessary corporate action by the Board of Directors. (b) a Rights Agreement relating to such Rights
has been duly authorized, executed and delivered by the Company and duly executed by the Rights Agent named in the Rights Agreement; (c)
if such Rights relate to the issuance and sale of Common Stock, the actions described in paragraph 1 above have been taken; (d) if such
Rights relate to the issuance and sale of Preferred Stock, the actions described in paragraph 2 above have been taken, and (e) certificates
representing such Rights have been duly executed, countersigned and registered in accordance with the Rights Agreement and have been duly
delivered in accordance with the Rights Agreement against payment of the agreed consideration therefor, such Rights will constitute valid
and binding obligations of the Company in accordance with their terms.
6. With respect to any Units offered
by the Company pursuant to the Registration Statement, when (a) the issuance and the terms of the offering of such Units have been duly
authorized and approved by all necessary corporate action by the Board of Directors, (b) such Units have been duly issued and delivered
(and, if such Units are represented by certificates, such certificates representing Units have been duly executed and delivered) against
payment of their full purchase price and in accordance with the duly executed and delivered applicable unit, purchase, underwriting, or
similar agreement approved by the Board of Directors and the terms of the Registration Statement, the Prospectus, and the applicable Prospectus
Supplement, and (c) the Securities that are issuable as part of or upon exercise of such Units have been duly authorized and approved
(and, if applicable, reserved for issuance) by all necessary corporate action by the Board of Directors, such Units will constitute valid
and binding obligations of the Company, enforceable against the Company in accordance with their terms.
| Sacks Parente Golf, Inc. |
| August
20, 2024 |
| Page 4 |
With your permission, we have
made (and are relying upon) the following assumptions, without any independent investigation or inquiry by us, and our opinions expressed
above are subject to, and limited and qualified by the effect of, the following assumptions: (1) all representations, warranties, and
other statements as to factual matters that are contained in the documents that we reviewed in connection with this opinion letter are
accurate and complete, and all corporate records furnished to us by the Company are accurate and complete; (2) the Registration Statement
will be declared effective under the Securities Act prior to the Company’s offer, sale, or issuance of any Securities, and such
effectiveness will not be suspended or terminated as of the date of the offer, sale, or issuance of any Securities; (3) the Board of Directors
will adopt resolutions duly authorizing each offer, sale, and issuance of the Securities and establishing the terms of the offering of
such Securities, and such resolutions will not be rescinded and will not be modified in a manner that adversely affects the opinions expressed
above; (4) in compliance with the Securities Act and the rules and regulations thereunder, the Company will prepare and file with the
Commission a Prospectus Supplement describing the terms of each offering of any Securities in compliance with the Securities Act and the
rules and regulations thereunder; (5) a definitive purchase, underwriting, warrant, rights agreement, unit, or similar agreement will
be duly executed and delivered by the Company and the other parties thereto with respect to each offer, sale, and issuance of any Securities,
and each such agreement will constitute the valid and binding obligation of each party other than the Company enforceable against each
party other than the Company in accordance with its terms; (6) if Debt Securities are issued, the Applicable Indenture will be duly executed
and delivered by the Trustee and will constitute the valid and binding obligation of the Trustee, enforceable against the Trustee in accordance
with its terms, and the executed Applicable Indenture will not differ in any material respect from the form of Applicable Indenture that
is filed as an exhibit to the Registration Statement; (7) if Rights are issued, a Rights Agreement will be duly executed and delivered
by the Rights Agent and will constitute the valid and binding obligation of the Rights Agent, enforceable against the Rights Agent in
accordance with its terms; (8) the number of shares of Common Stock or Preferred Stock, as applicable, to be issued pursuant to the Registration
Statement, the Prospectus, and any Prospectus Supplement, together with the number of then-outstanding shares of Common Stock or Preferred
Stock, will not exceed the number of shares of Common Stock or Preferred Stock authorized in the Certificate of Incorporation; (9) in
connection with each issuance of any Securities, the Company will duly execute and deliver stock certificates, promissory notes, warrant
certificates, or unit certificates, as applicable, in the form filed, or to be filed, by the Company as exhibits to the Registration Statement
or in the form of the applicable documents to be filed by the Company with the Commission and incorporated by reference into the Registration
Statement, provided, that, with respect to any Common Stock, Preferred Stock, or Units issued on an uncertificated basis, the Company
will comply with applicable law regarding notice requirements and the documentation of uncertificated securities; (10) all Securities
will be offered, sold, and issued by the Company in compliance with applicable federal and state securities laws, rules, and regulations,
including, without limitation, the Securities Act and the Trust Indenture Act, and the rules and regulations thereunder, and in the manner
stated in the Registration Statement, the Prospectus, and the applicable Prospectus Supplement; (11) the Company’s offer, sale,
and issuance of the Securities, and compliance with any definitive purchase, underwriting, warrant, rights agreement, unit, or similar
agreement, or with the Applicable Indenture, pertaining to such offer, sale, and issuance, will not constitute a default under, or a breach
of, any agreement to which the Company is a party or is otherwise subject, and neither the Certificate of Incorporation nor the Bylaws
will be amended after the date of this opinion letter in a manner that would cause such offer or sale of any Securities to constitute
a violation of the Certificate of Incorporation or Bylaws; (12) each purchase, underwriting, warrant, rights agreement unit, or similar
agreement pertaining to the offer, sale, and issuance of any Securities will be governed by the internal laws of the State of California,
except that the Applicable Indenture, and any related promissory notes will be governed by the internal laws of the State of New York;
(13) if any Securities are issued by the Company upon the exercise, conversion, or exchange of other Securities, the exercise, conversion,
or exchange terms of such Securities, as applicable, will be complied with; and (14) with respect to documents that we reviewed in connection
with this opinion letter, all documents submitted to us as originals are authentic and complete; all documents submitted to us as certified,
electronic, facsimile, or photostatic copies conform to the originals of such documents, and such original documents are authentic and
complete; the signatures on all documents are genuine; and all natural persons who have executed any of the documents have the legal capacity
to do so.
| Sacks Parente Golf, Inc. |
| August
20, 2024 |
| Page 5 |
Our opinions are subject to (a)
the effect of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium, and other similar laws and court decisions
relating to or affecting the rights and remedies of creditors, (b) the effect of general principles of equity, whether considered in a
proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief), concepts of materiality,
reasonableness, good faith, and fair dealing, and the discretion of the court before which a proceeding is brought, and (c) the invalidity
under certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution to a party
with respect to a liability where such indemnification or contribution is contrary to public policy or otherwise illegal. Furthermore,
we neither express nor imply any opinion as to (1) any provision for liquidated damages, default interest, default charges, late charges,
monetary penalties, make-whole premiums, or other economic remedies to the extent such provisions are deemed to constitute a penalty,
(2) consents to, or restrictions upon, governing law, jurisdiction, venue, arbitration, remedies, or judicial relief, (3) waivers of rights
or defenses, (4) any provision requiring the payment of attorneys’ fees, where such payment is contrary to law or public policy,
(5) any provision permitting, upon acceleration of any Debt Securities, collection of that portion of the stated principal amount thereof
which might be determined to constitute unearned interest thereon, (6) the creation, validity, attachment, perfection, or priority of
any lien or security interest, (7) advance waivers of claims, defenses, rights granted by law, notice, opportunity for hearing, evidentiary
requirements, statutes of limitation, trial by jury or at law, or other procedural rights, (8) waivers of broadly or vaguely stated rights,
(9) provisions for exclusivity, election, or cumulation of rights or remedies, (10) provisions authorizing or validating conclusive or
discretionary determinations, (11) grants of setoff rights, (12) proxies, powers, and trusts, (13) any law, rule, or regulation relating
to usury, (14) any provision to the extent it requires that a claim with respect to a security denominated in other than U.S. dollars
(or a judgment in respect of such a claim) be converted into U.S. dollars at a rate of exchange at a particular date, to the extent applicable
law otherwise provides, or (15) the severability, if invalid, of provisions to the foregoing effect. We neither express nor imply any
opinion regarding the validity, binding effect, or enforceability of any agreement except to the extent expressly stated above in this
opinion letter.
This opinion letter is rendered
to you in connection with the Registration Statement and may not be relied upon by you for any other purpose. We hereby consent to the
filing of this opinion letter as an exhibit to the Registration Statement and further consent to the reference to our name under the caption
“Legal Matters” in the Prospectus. We further consent to the incorporation by reference of this letter and consent into any
registration statement or post-effective amendment to the Registration Statement filed pursuant to Rule 462(b) under the Act with respect
to the Securities. In giving our consent, we do not thereby admit that we are included within the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations of the Commission under the Securities Act.
| |
Very truly yours, |
| |
|
| |
/s/ TroyGould PC |
| |
|
| |
TROYGOULD PC |
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
Sacks Parente Inc.
Camarillo, California
We hereby consent to the incorporation by reference
in the Registration Statement on Form S-3 of Sacks Parente Inc. of our report, dated March 18, 2024, relating to the consolidated financial
statements as of December 31, 2023 and 2022 and for the years then ended (which report includes an explanatory paragraph relating to
substantial doubt about Sacks Parente, Inc.’s ability to continue as a going concern). We also consent to the reference to our
firm under the heading “Experts” in the prospectus.
/s/ Weinberg & Company
Los Angeles, California
August 20, 2024
eXHIBIT
107
Calculation of Filing Fee Tables
FORM S-3
(Form Type)
Sacks Parente Golf, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security
Type |
|
Security
Class
Type(1) |
|
Fee Calculation or Carry Forward Rule |
|
Amount Registered |
|
|
Proposed Maximum Offering Price Per Unit |
|
|
Maximum Aggregate Offering Price |
|
|
Fee Rate |
|
|
Amount of Registration Fee |
|
|
Carry Forward Form Type |
|
|
Carry Forward File Number |
|
|
Carry Forward Initial Effective Date |
|
|
Filing Fee Previously Paid in Connection with Unsold Securities to be Carried Forward |
|
| Newly Registered Securities |
| Fees to be paid |
|
Equity |
|
Common Stock |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Equity |
|
Preferred Stock |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Other |
|
Purchase Contract |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Other |
|
Warrants(4) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Other |
|
Subscription Rights (5) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Other |
|
Depositary Shares |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Debt |
|
Debt Securities(3) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Other |
|
Units (6) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Unallocated (Universal) Shelf |
|
- |
|
|
457 |
(o) |
|
|
(1 |
) |
|
$ |
25,000,000 |
(2) |
|
|
$147.60 per
$1,000,000 |
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Carry Forward Securities |
| Carry Forward Securities |
|
- |
|
- |
|
|
- |
|
|
|
- |
|
|
|
|
|
|
|
- |
|
|
|
|
|
|
|
|
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
| |
|
Total Offering Amounts |
|
|
$ |
25,000,000 |
|
|
|
|
|
|
$ |
3,690 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Total Fees Previously Paid |
|
|
|
|
|
|
|
|
|
|
|
- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Total Fees Offsets |
|
|
|
|
|
|
|
|
|
|
|
- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Net Fee Due |
|
|
|
|
|
|
|
|
|
|
$ |
3,690 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| (1) |
There are being registered hereunder such indeterminate amount of the securities of each identified class as may from time to time be offered hereunder by the Registrant at indeterminate prices which shall have an aggregate initial offering price not to exceed $25,000,000. The securities being registered hereunder also include such indeterminate amount of securities as may be issued upon exercise, settlement, exchange or conversion securities offered or sold hereunder, or pursuant to the anti-dilution provisions of any such securities. If any debt securities are issued at an original issue discount, then the principal amount of such debt securities shall be in such greater amount as shall result in an aggregate initial offering price not to exceed $25,000,000, less the aggregate dollar amount of all securities previously issued hereunder. |
| (2) |
The proposed maximum offering price per security for the primary offering will be determined, from time to time, by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act. |
| (3) |
Debt securities may be senior or subordinated, convertible or non-convertible and secured or unsecured. |
| (4) |
Warrants may represent rights to purchase debt securities, common stock, preferred stock or other securities registered hereunder. |
| (5) |
Subscription rights evidence rights to purchase any securities of the Registrant registered under this registration statement. |
| (6) |
Any securities registered under this registration statement may be sold separately or as units with other securities registered under this registration statement. |
Grafico Azioni Sacks Parente Golf (NASDAQ:SPGC)
Storico
Da Dic 2024 a Gen 2025
Grafico Azioni Sacks Parente Golf (NASDAQ:SPGC)
Storico
Da Gen 2024 a Gen 2025
