Exhibit 1.1
EXECUTION VERSION
SMITH & NEPHEW PLC
Debt Securities
UNDERWRITING AGREEMENT
October 7, 2020
BofA Securities, Inc.
One Bryant Park
New York, New York 10036
United States of America
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
United States of America
as representatives of the several Underwriters named
in Schedule I to the Pricing Agreement (defined below)
Ladies and Gentlemen:
Smith & Nephew plc, a company organized
under the laws of England and Wales (the “Company”), proposes to enter into a Pricing Agreement (“Pricing
Agreement”), substantially in the form of Annex I hereto, with such additions and deletions as the parties thereto may
determine, and subject to the terms and conditions stated herein, to issue and sell to the firms named in Schedule I to the Pricing
Agreement (such firms constituting the “Underwriters” with respect to such Pricing Agreement and the securities
specified therein), certain of its debt securities (the “Securities”) specified in Schedule II to the Pricing
Agreement (with respect to such Pricing Agreement, the “Designated Securities”).
The terms and rights of the Designated Securities shall be
as specified in the Pricing Agreement and pursuant to the Indenture, to be dated on or around of October 14, 2020, as amended
or supplemented from time to time (the “Indenture”), between the Company and The Bank of New York Mellon, as
Trustee (the “Trustee”).
This underwriting agreement (the “Agreement”)
supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any Underwriter,
with respect to the subject matter hereof.
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1.
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Particular sales of Designated Securities may be made from time to time to
the Underwriters of such Securities, for whom you will act as representatives (the “Representatives”). The term
“Representatives” also refers to the firm(s) acting as Underwriters and to Underwriters who act without any firm being
designated as their representative. This Underwriting Agreement shall not be construed as an obligation of the Company to sell
any of the Securities or as an obligation of any of the Underwriters to purchase the Securities. The obligation of the Company
to issue and sell any of the
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Securities and the obligation
of any of the Underwriters to purchase any of the Securities shall be evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. The Pricing Agreement shall specify the aggregate principal amount of such Designated Securities,
the initial public offering price of such Designated Securities, the purchase price to the Underwriters of such Designated Securities,
the names of the Underwriters of such Designated Securities, the names of the Representatives of such Underwriters and the principal
amount of such Designated Securities to be purchased by each Underwriter and shall set forth the date, time and manner of delivery
of such Designated Securities and payment therefor. The Pricing Agreement shall also specify the terms of such Designated Securities.
The Pricing Agreement shall be in the form of an executed writing (which may be in counterparts), and may be evidenced by an exchange
of telegraphic or electronic communications or any other rapid transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several and not joint.
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2.
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The Company represents and warrants to, and agrees with, each of the Underwriters
that:
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(a)
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The registration statement on Form F-3 (Registration No. 333-249255) in respect of the Securities
has been filed with the Securities and Exchange Commission (the “Commission”); such registration statement and
any amendments thereto filed prior to the date of the applicable Pricing Agreement, excluding exhibits to such registration statement,
but including all documents incorporated by reference in the prospectus contained therein, became effective on filing with the
Commission in such form; the base prospectus filed as part of such registration statement, in the form in which it has most recently
been filed with the Commission on or prior to the date of the applicable Pricing Agreement, is hereafter called the “Basic
Prospectus”; any preliminary prospectus relating to the Designated Securities (including any preliminary prospectus supplement)
included in such registration statement or filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Securities Act of l933, as amended (the “Act”), being hereinafter called a “Preliminary
Prospectus”; the various parts of such registration statement, including all exhibits thereto and the documents incorporated
by reference in the prospectus contained in such registration statement, at the time such parts became effective, but excluding
Form T-1 and including any prospectus supplement relating to the Designated Securities that is filed with the Commission and deemed
by virtue of Rule 430B under the Act to be part of such registration statement, each as amended at the time such part of the registration
statement became effective being hereinafter called the “Registration Statement”; “Applicable Time”
is the time specified as such in the applicable Pricing Agreement; “Effective Date” shall mean each date and
time that the Registration Statement and any post-effective amendments or amendments thereto became or becomes effective; any reference
herein to the Basic Prospectus, any Preliminary Prospectus or the Prospectus (as defined below) shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the Act, as of the date of such Basic
Prospectus, any Preliminary Prospectus or Prospectus, as the case may be, and any post-effective amendments to the Registration
Statement; any
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reference to any amendment or
supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents
filed after the date of such Basic Prospectus, any Preliminary Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated by reference in such Basic Prospectus,
any Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall
be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the Effective Date of the Registration Statement that is incorporated by reference in the Registration Statement; the Basic
Prospectus, as supplemented by the prospectus supplement specifically relating to the Designated Securities filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing, is hereinafter called the “Prospectus ”; and no stop order suspending
the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or threatened
by the Commission and no order preventing or suspending the use of the Basic Prospectus, any Preliminary Prospectus, the Prospectus
or the Pricing Disclosure Package (as defined below) together with any “issuer free writing prospectus” as defined
in Rule 433 under the Act relating to the Designated Securities (an “Issuer Free Writing Prospectus”) has been
issued and no proceeding for that purpose has been initiated or threatened by the Commission;
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(b)
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The documents incorporated by reference in the Pricing Disclosure Package and the Prospectus, when
they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the applicable rules and regulations of the Commission thereunder, and none
of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
any further documents so filed and incorporated by reference in the Pricing Disclosure Package or the Prospectus or any further
amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided however, that this representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter of Designated Securities
through the Representatives expressly for use in the Pricing Disclosure Package or the Prospectus as amended or supplemented relating
to such Securities; and no such documents will have been filed with the Commission following the Commission's close of business
on the business day immediately prior to the date of the applicable Pricing Agreement and prior to the execution of the applicable
Pricing Agreement, except as set forth on Schedule III to the applicable Pricing Agreement;
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(c)
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The Registration Statement and the Prospectus conform, and any further amendments or supplements
to the Registration Statement and the Prospectus will conform, in all material respects, to the requirements of the Act and the
Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission
thereunder; the Registration Statement and any amendment thereto do not and will not, as of the applicable Effective Date, contain
an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, not misleading; and the Prospectus and any amendment or supplement thereto do not and will not, as of its date
and as of the Time of Delivery (as defined below), contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty shall not apply to (i) any statements
or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in the Registration Statement or the Prospectus as amended
or supplemented relating to such Securities or (ii) that part of the Registration Statement which shall constitute the Statement
of Eligibility and Qualification (Form T-1) under the Trust Indenture Act;
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(d)
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The (i) Basic Prospectus, the Preliminary Prospectus, if any, used most recently prior to the Applicable
Time, as supplemented by the final term sheet prepared and filed pursuant to Section 5(a) hereof as of the Applicable Time and
listed on Schedule IV to the applicable Pricing Agreement together with the Issuer Free Writing Prospectus listed in Schedule III
(if any) to the applicable Pricing Agreement and any other free writing prospectus that the parties hereto shall hereafter expressly
agree in writing to treat as part of the Pricing Disclosure Package (collectively, the “Pricing Disclosure Package”)
and (ii) each electronic road show, if any, when taken together as a whole with the Pricing Disclosure Package, will not include
any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule
III (if any) to the applicable Pricing Agreement will not conflict with the information contained in the Registration Statement,
the Basic Prospectus, the Preliminary Prospectus, if any, used most recently prior to the Applicable Time or the Prospectus; provided,
however, that this representation and warranty shall not apply to (i) any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an Underwriter of Designated Securities through the Representatives
expressly for use in any such Issuer Free Writing Prospectus or the Pricing Disclosure Package or (ii) that part of the Registration
Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act;
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(e)
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Each of the Company and its Significant Subsidiaries (as defined in Regulation S-X under the Exchange
Act) has been duly incorporated and is validly existing under the law of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own, lease and operate its properties and conduct its
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business as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus. The Company is not, and at the time of the Pricing Agreement,
will not be an “ineligible issuer,” as defined in Rule 405 under the Act;
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(f)
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The Designated Securities have been duly authorized and, when executed and authenticated in accordance
with the Indenture and delivered to and paid for by the Underwriters, will constitute valid and binding obligations of the Company
entitled to the benefits provided by the Indenture; each of this Agreement, the Pricing Agreement and the Indenture has been or
will be duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, the Indenture will constitute a valid and binding obligation of the Company, enforceable in accordance with its
terms, subject to the effects of applicable bankruptcy, insolvency and similar laws affecting the enforcement of creditors' rights
generally and equitable principles of general applicability; the Indenture has been duly qualified under the Trust Indenture Act;
and the Designated Securities conform in all material respects to the description thereof contained in the Pricing Disclosure Package
and the Prospectus as amended or supplemented;
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(g)
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The issue and sale of the Designated Securities and the compliance by the Company with the Indenture,
this Agreement and the Pricing Agreement relating to the Designated Securities and the consummation by the Company of the transactions
contemplated herein and therein will not contravene (i) any of the terms or provisions of any indenture, mortgage, deed of trust,
loan agreement or other similar agreement or instrument to which the Company is a party or by which the Company is bound (collectively,
“Agreements and Instruments”), or (ii) the memorandum or articles of association of the Company (the “Charter”),
or (iii) any statute of the United States or the United Kingdom or any political subdivision thereof, or any order, rule or regulation
known to the Company of any court or of any governmental agency or body in the United States or the United Kingdom or any political
subdivision thereof (collectively, “Governmental Requirements”), except in the case of clause (i) above for
such contraventions which would not, singly or in the aggregate, (A) affect the validity or binding nature of the Designated Securities
or (B) have a material adverse effect on the financial position, shareholders’ equity or results of operations of the Company
and its consolidated subsidiaries considered as a whole (clauses (A) and (B) together, a “Material Adverse Effect”);
the Company is not in violation of (i) any Agreements and Instruments, or (ii) its Charter, or (iii) any Governmental Requirements,
except for such violations as would not, singly or in the aggregate, have a Material Adverse Effect;
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(h)
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No consent, approval, authorization, order, registration or qualification of or with any court
or any governmental agency or body described in (g) above is required for the issue and sale of the Designated Securities by the
Company in the manner contemplated herein or the consummation of the other transactions contemplated by this Agreement, the Pricing
Agreement or the Indenture except as may be required by the securities or Blue Sky laws of the various states in connection with
the offer and sale of the Designated Securities;
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(i)
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The Company is not, and after giving effect to the offering and sale of the
Designated Securities and the application of the proceeds thereof as described in the Pricing Disclosure Package and the Prospectus
will not be, required to register as an “investment company” as such term is defined in the Investment Company Act
of 1940, as amended;
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(j)
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KPMG LLP, which has audited the financial statements of the Company and its subsidiaries and the
Company's internal controls over financial reporting as specified under the heading “Experts” in the Registration Statement,
the Pricing Disclosure Package and the Prospectus is an independent registered public accounting firm with respect to the Company
as required by the Act and the applicable rules and regulations of the Commission thereunder;
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(k)
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The financial statements of the Company included or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly the
financial position of the Company and its consolidated subsidiaries at the dates indicated and the results of operations, shareholders’
equity and cash flows of the Company and its consolidated subsidiaries for the periods specified; said financial statements have
been prepared in conformity with International Financial Reporting Standards as adopted by the European Union (“IFRS-EU”)
and International Financial Reporting Standards as issued by the International Accounting Standards Board (“IFRS-IASB”)
applied on a consistent basis throughout the periods involved. IFRS-EU differs in certain respects from IFRS-IASB, however, the
differences have no impact for the periods specified. Except as included or incorporated by reference therein, no historical or
pro forma financial statements or supporting schedules are required to be included or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package or the Prospectus under the Act, the Exchange Act or the rules and regulations of the
Commission thereunder. All disclosures contained or incorporated by reference in the Registration Statement, the Pricing Disclosure
Package or the Prospectus, if any, regarding “non-GAAP financial measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G under the Exchange Act, to the extent applicable, in all material respects;
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(l)
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The Company maintains a system of internal controls over financial reporting (as defined under
Rule 13a-15 and Rule 15d-15 under the Exchange Act) sufficient to provide reasonable assurances that: (A) transactions are executed
in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation
of financial statements in conformity with IFRS-EU, IFRS-IASB or applicable local generally accepted accounting principles and
to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or
specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. Except as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, at the end of the Company’s most recent audited fiscal year, there was (1) no material
weakness in the Company’s internal control over financial reporting
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(whether or not remediated) and
(2) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely
to materially affect, the Company’s internal control over financial reporting. The Company maintains an effective system
of disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) that is designed to ensure
that the information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and
is accumulated and communicated to the Company’s management, including its principal executive officer or officers and principal
financial officer or officers, as appropriate, to allow timely decisions regarding disclosure;
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(m)
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Since the date of the most recent consolidated financial statements included
or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there has not been
any material adverse change in the consolidated shareholders’ equity or consolidated long-term debt of the Company and its
subsidiaries taken as a whole, or any material adverse change, or any development reasonably likely to result in a prospective
material adverse change in or affecting the financial position, shareholders’ equity or results of operations of the Company
and its consolidated subsidiaries considered as a whole, otherwise than as set forth therein;
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(n)
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The operations of the Company and its subsidiaries are and have been conducted at all times in
compliance with, in all material respects, applicable financial recordkeeping and reporting requirements, money laundering statutes
and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced
by any governmental agency (collectively, the “Money Laundering Laws”), insofar as they apply, and no action,
suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or
any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened;
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(o)
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None of the Company or any of its subsidiaries or, to the knowledge of the Company, any director,
officer or employee of the Company or any of its subsidiaries is currently subject to any sanctions administered by the U.S. government
(including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department
of State and including, without limitation, the designation as a “specially designated national” or “blocked
person”), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions
authority (collectively, “Sanctions”), nor is the Company or any of its subsidiaries located, organized or resident
in a country or territory that is the subject or target of Sanctions that broadly prohibits dealings with that country or territory
(each, a “Sanctioned Country”); and the Company will not directly or, knowingly, indirectly use the proceeds
of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the
time of such funding or facilitation, is
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the subject or target of Sanctions,
(ii) to fund or facilitate any activities of or business in any Sanctioned Country (except, in the case of (i) or (ii), to the
extent permissible for a person required to comply with Sanctions) or (iii) in any other manner that will result in a violation
by any person participating in the transaction, whether as underwriter, initial purchaser, advisor, investor or otherwise of Sanctions.
It is acknowledged and agreed that the representations and warranties in this clause (o) are only sought and given to the extent
that to do so would not result in a violation of, or conflict with, Regulation (EC) 2271/96 or any implementing measures, or any
related or associated regulation implemented in the United Kingdom;
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(p)
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For the past five years, none of the Company, any of its subsidiaries or, to the knowledge of the
Company, any director, officer or employee of the Company or any of its subsidiaries is aware of or has taken any action, directly
or indirectly, that would result in a violation in any material respect by such persons of the Foreign Corrupt Practices Act of
1977, as amended, and the rules and regulations thereunder (the “FCPA”), the U.K. Bribery Act 2010 (the “Bribery
Act”), the U.K. Criminal Finances Act 2017 (the “Criminal Finances Act”) or any other applicable anti-bribery
or anti-corruption law or regulation; the Company, its subsidiaries and, to the knowledge of the Company, its other affiliates
have conducted their businesses in compliance with the FCPA, the Bribery Act, the Criminal Finances Act and such applicable laws
and regulations and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected
to continue to ensure, continued compliance therewith in all material respects;
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(q)
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Other than as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
there are no legal or governmental or regulatory proceedings pending or threatened to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its subsidiaries is the subject that are required to be described
in the Registration Statement, the Pricing Disclosure Package or the Prospectus and are not so described and there are no statutes
or regulations that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus
and are not so described;
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(r)
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The Company and its subsidiaries own or possess, or can acquire on reasonable terms, adequate patents,
patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively,
“Intellectual Property”) necessary to carry on the business now operated by them, and neither the Company nor
any of its subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or any of its subsidiaries therein, and which infringement or conflict,
if the subject of an unfavorable decision, ruling or finding, or invalidity or inadequacy, could, singly or in the aggregate have
a Material Adverse Effect;
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(s)
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The Company and its subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, “Governmental Licenses”) issued by the appropriate governmental entities necessary
to conduct the business now operated by them, except where the failure so to possess would not, singly or in the aggregate, result
in a Material Adverse Effect. The Company and its subsidiaries are in compliance with the terms and conditions of all Governmental
Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect. All
of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a
Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any Governmental Licenses which, if the subject of an unfavorable decision, ruling or finding, would,
singly or in the aggregate, result in a Material Adverse Effect;
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(t)
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To the best of the Company’s knowledge, there has been no material security breach or incident,
unauthorized access or disclosure, or other compromise of or relating to the Company’s or its subsidiaries’ information
technology and computer systems, networks, hardware, software, data and databases (including the data and information of their
respective customers, employees, suppliers, vendors and any third party data maintained, processed or stored by the Company and
its subsidiaries, and any such data processed or stored by third parties on behalf of the Company and its subsidiaries), equipment
or technology (collectively, “IT Systems and Data”); (ii) neither the Company nor any of its subsidiaries have
been notified of, and have no knowledge of any event or condition that could result in, any security breach or incident, unauthorized
access or disclosure or other compromise to their IT Systems and Data; and (iii) the Company and its subsidiaries have implemented
appropriate controls, policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation,
redundancy and security of their IT Systems and Data reasonably consistent with industry standards and practices, or as required
by applicable regulatory standards;
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(u)
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Assuming the Designated Securities are listed on a recognised stock exchange (as defined in Section
1005 of the United Kingdom Income Tax Act 2007 (the “ITA”)) at the relevant time, all payments of principal,
premium, if any, and interest on the Designated Securities may be made free and clear of and without withholding taxes or deduction
on account of taxes in the United Kingdom; no stamp or other issuance or transfer taxes or similar duties are payable by or on
behalf of the Underwriters in the United Kingdom (or to any political subdivision thereof) in connection with the initial issuance,
initial sale and delivery of the Designated Securities in the manner contemplated herein (provided that no election is made by
DTC (as defined below) or any other relevant clearance service under section 97A of the Finance Act 1986).
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3.
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Upon the execution of the Pricing Agreement applicable to any Designated Securities and authorization
by the Representatives of the release of such Designated Securities,
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the several Underwriters propose to offer such Designated
Securities for sale upon the terms and conditions set forth in the Prospectus as amended or supplemented.
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4.
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Designated Securities to be purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in such authorized denominations and registered in such names as the Representatives may request upon at least forty-eight
hours' prior notice to the Company, shall be delivered by or on behalf of the Company to the Representatives for the account of
such Underwriter at the office of Sidley Austin LLP, 70
St Mary Axe, London, England, against payment by such Underwriter or on its behalf of the purchase price therefor in same day
funds, payable to the order of the Company in the funds specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as the Representatives and the Company may agree
upon in writing, such time and date being herein called the “Time of Delivery” for such Securities. The Securities
will be delivered by the Company to the Representatives in the form of one or more global Securities, representing all of the
Securities, which will be registered in the name of a nominee for The Depository Trust Company (“DTC”) and
deposited on behalf of the Underwriters with Cede & Co. as custodian for DTC, for credit to the respective participant accounts
of the Underwriters unless otherwise directed by you. Such global Securities will be made available for checking at least twenty-four
hours prior to the Time of Delivery.
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5.
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The Company agrees with each of the Underwriters of any Designated Securities:
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(a)
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To prepare in consultation with the Representatives the Prospectus, as amended and supplemented
in relation to the applicable Designated Securities, in a form approved by the Representatives, which approval the Representatives
agree they will not unreasonably withhold, and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the execution and delivery of the Pricing Agreement relating
to the applicable Designated Securities or, if applicable, such earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement, the Pricing Disclosure Package or Prospectus (as each may have been
amended or supplemented) after the date of the Pricing Agreement relating to such Designated Securities and prior to the Time of
Delivery without prior consultation with the Representatives for such Designated Securities; to advise the Representatives promptly
of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; if requested
by the Representatives prior to the Applicable Time, to prepare a final term sheet, containing solely a description of the Designated
Securities, in a form substantially as set forth in Schedule V to the applicable Pricing Agreement and which shall be attached
to the applicable Pricing Agreement and approved by the Representatives, and to file such term sheet pursuant to Rule 433(d) under
the Act within the time required by such Rule; to file promptly all other material required to be filed by the Company with the
Commission pursuant to Rule 433(d) under the Act; to file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so
long as the delivery of a prospectus (or, in lieu thereof, the
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notice referred to in Rule 173(a)
under the Act) is required in connection with the offering or sale of such Designated Securities, and during such same period to
advise the Representatives, promptly after the Company receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed with
the Commission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus
relating to the Securities, of the suspension of the qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the use of any prospectus relating to the Securities or suspending
any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal;
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(b)
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Promptly from time to time to use its reasonable best efforts to qualify such Securities for offering
and sale under the securities laws of such jurisdictions as the Representatives may reasonably request and to pay all expenses
(including reasonable fees and disbursements of counsel to the Underwriters) in connection with such qualification and in connection
with the determination of the eligibility of such Securities for investment under the laws of such jurisdictions as the Representatives
may designate and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of such Securities; provided, however, that in connection
therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process
in any jurisdiction or to take any other action which would subject it to service of process in suits in any jurisdiction or subject
it to taxation in any jurisdiction other than those arising out of the offering or sale of the Designated Securities in such jurisdiction;
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(c)
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To furnish the Underwriters, without charge, with a copy of the Registration Statement, with copies
of the Prospectus as amended or supplemented, including the exhibits and materials, if any, incorporated by reference therein,
in such quantities as the Representatives may from time to time reasonably request, and, if the delivery of a prospectus is required
(or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the offering or sale of the Designated Securities and if at such time any
event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered,
not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify the Representatives and upon their request to file such document and to
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prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
provided, however, if any Underwriter is required to deliver a prospectus in connection with sales of any of the
Designated Securities at any time nine months or more after the time of issue of the Prospectus, upon their request but at the
expense of such Underwriter, to prepare and deliver to such Underwriter as many copies as the Representatives may request of an
amended or supplemented Prospectus complying with Section 10(a) (3) of the Act;
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(d)
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To make generally available to the Company's security holders and to the Representatives as soon
as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined
in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company,
Rule 158); and
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(e)
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During the period beginning from the date of the Pricing Agreement for such Designated Securities
and continuing to and including the completion of the distribution of such Designated Securities, as notified to the Company by
the Representatives, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company which mature
more than one year after the Time of Delivery and which are denominated in U.S. dollars and substantially similar to such Designated
Securities, without the prior written consent of the Representatives, which consent shall not be unreasonably withheld.
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(f)
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To pay on behalf of the Underwriters (on an after-tax basis) the amount of all stamp, issue, registration,
documentary and other similar taxes payable in the United Kingdom upon or in connection with the creation, issue, offering and
initial resale of the Designated Securities in the manner contemplated herein and the execution and delivery of this Agreement
and to reimburse the Underwriters (on an after-tax basis, including any interest or penalties) the amount of all stamp, issue,
registration, documentary and other similar taxes paid by the Underwriters in any jurisdiction upon or in connection with the creation,
issue, offering and initial resale of the Designated Securities and the execution and delivery of this Agreement and the Company
agrees to indemnify the Underwriters against any claim, demand, action, liability, damages, cost, loss or expense (including, without
limitation, legal and other advisory fees (and any value added tax thereon)) which the Underwriters may incur as a result of or
arising out of or in relation to any failure to pay or delay in paying any of the same.
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(g)
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To use its reasonable best efforts to (i) list the Designated Securities, and ensure the Designated
Securities remain listed, on the New York Stock Exchange (or another “recognised stock exchange” as defined in Section
1005 of the ITA) (the “Relevant Stock Exchange”) as promptly as practicable, but, in any event, prior to the
first interest payment date in relation to such Designated Securities.
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(h)
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To ensure that neither the Company nor any of its affiliates will take, directly or indirectly,
any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price
of the Designed Securities.
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(i)
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To cooperate with the Representatives and use its reasonable best efforts to permit the Designated
Securities to be eligible for clearance and settlement through DTC.
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6.
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(a)
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Each Underwriter
represents and agrees that it shall not use, refer to or distribute any “free writing prospectus” (as defined in Rule
405 under the Act, a “Free Writing Prospectus”) except:
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(i)
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a Free Writing Prospectus
that (1) is not an Issuer Free Writing Prospectus, and (2) contains only information describing the preliminary terms of the Securities
or their offering or otherwise permitted under Rule 134 under the Act;
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(ii)
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a Free Writing Prospectus as shall be agreed in writing with the Company that is not distributed,
used or referenced by such Underwriter in a manner reasonably designed to lead to its broad unrestricted dissemination (including
any electronic road show) unless the Company consents to such dissemination and such Free Writing Prospectus is listed on Schedule
VI to the applicable Pricing Agreement; provided that an Underwriters' internal communications with its own sales force shall not
be covered by this clause (ii); and
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(b)
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Notwithstanding Section 6(a) above, the Company hereby agrees that the Underwriters may distribute
to investors one or more Free Writing Prospectuses that contain only the final terms of the Designated Securities (including, for
the avoidance of doubt, in the format of Bloomberg communications) substantially in the form set forth in Schedule V to the applicable
Pricing Agreement and that any such Free Writing Prospectus substantially in the form set forth in Schedule V to the applicable
Pricing Agreement will be filed by the Company in accordance with Rule 433(d) under the Act and shall be considered an Issuer Free
Writing Prospectus for purposes of this Agreement.
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(c)
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The Company agrees that, unless it has obtained or will obtain the prior written consent of the
Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required
to be filed by the Company with the Commission or retained by the Company under Rule 433 under the Act, provided that the prior
written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectus included in
Schedule III to the applicable Pricing Agreement. Any such free writing prospectus consented to by the Representatives is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat,
as the case may be, each Permitted Free Writing Prospectus (including the final terms of the Designated Securities as set forth
in Schedule V to the applicable Pricing Agreement) as an Issuer Free Writing Prospectus and (ii) it
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has complied and will comply, as
the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record keeping.
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(d)
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The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus
any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the
Registration Statement, the Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing,
not misleading, the Company will give prompt notice thereof to the Representatives and, if requested by the Representatives, will
prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such
conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through the Representatives expressly for use therein.
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7.
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The Company covenants and agrees with the several Underwriters that the Company will pay or cause
to be paid the following: (i) except as provided in the proviso contained in Section 5(c) hereof, the fees, disbursements and expenses
of counsel and accountants of the Company in connection with the registration of the Designated Securities under the Act and the
qualification of any indenture related to the Designated Securities under the Trust Indenture Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the
Prospectus and amendments and supplements thereto, the Pricing Disclosure Package and any Issuer Free Writing Prospectus and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, the Pricing Disclosure Package, the Indenture and any other documents in connection with the
offering, purchase, sale and delivery of the Designated Securities; (iii) all expenses in connection with the qualification of
the Designated Securities for offering and sale under state securities laws as provided in Section 5(b) hereof, including the reasonable
fees, disbursements and expenses of counsel for the Underwriters in connection with such qualification and in connection with any
Blue Sky and legal investment surveys; (iv) any fees charged by securities rating services for rating the Designated Securities;
(v) any filing fees incident to any required review by the Financial Industry Regulatory Authority of the terms of the sale of
the Designated Securities; (vi) the cost of preparing the Securities and of the delivery of the Designated Securities to the Underwriters,
excluding any stamp, issue, registration, documentary or other similar taxes compensated for by Section 5(f); (vii) the fees and
expenses of any Trustee and any agent of any Trustee and the fees and disbursements of counsel for any Trustee in connection with
any Indenture and the Securities; (viii) the fees and expenses incurred in connection with listing of the Securities on the Relevant
Stock Exchange; (ix) except as provided in the proviso contained in Section 5(c) hereof all reasonable other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section; and
(x) to the extent any of the aforementioned costs, fees and expenses are reimbursed to the Underwriters, such
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reimbursement shall be on an
after-tax basis and include the amount of any applicable irrecoverable value added tax. It is understood, however, that, except
as provided in this Section 7, Section 9 and Section 13 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel and transfer taxes on any resale, other than initial resale, of any of the Designated Securities
by them.
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8.
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The obligations of the Underwriters of any Designated Securities under the
Pricing Agreement relating to such Designated Securities shall be subject, in the discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Company in or incorporated by reference in the Pricing Agreement
relating to such Designated Securities are, at and as of the Time of Delivery for such Designated Securities, true and correct,
the condition that the Company shall have performed all, of its obligations hereunder theretofore to be performed, and the following
additional conditions:
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(a)
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The final term sheet contemplated by Section 5(a) hereof in relation to the applicable Designated
Securities, and any other material required to be filed pursuant to Rule 433 under the Act in relation to the applicable Designated
Securities shall have been filed within the applicable time period prescribed for such filings by Rule 433 under the Act and the
Prospectus as amended or supplemented in relation to the applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(a) hereof; no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no order
suspending or preventing the use of the Basic Prospectus, any Preliminary Prospectus, any documents which are part of the Pricing
Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission
shall have been complied with to the Representatives' reasonable satisfaction;
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(b)
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Sidley Austin LLP, United States counsel for the Underwriters, shall have furnished to the Representatives
such opinion or opinions, dated the Time of Delivery for such Designated Securities, with respect to the validity of the Indenture,
the Designated Securities, the Registration Statement, the Pricing Disclosure Package, the Prospectus as amended or supplemented
and other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters (such counsel being entitled to state that they have assumed
that any document referred to in their opinion and executed by the Company has been duly authorized, executed and delivered pursuant
to English law and, as to all matters of English law, their opinion is given in reliance upon, and is subject to the qualifications
set forth in, the opinion of counsel for the Company required by subsection (c) of this Section 8);
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(c)
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Davis Polk & Wardwell London LLP, English solicitors for the Company shall have furnished to
the Representatives a written opinion, dated the Time of Delivery for such Designated Securities, in form and substance reasonably
satisfactory to the Representatives, substantially to the effect as set forth in Exhibit A hereto.
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(d)
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The Chief Legal and Compliance Officer of the Company shall have furnished
to the Representatives a written opinion, dated the Time of Delivery for such Designated Securities, in form and substance reasonably
satisfactory to the Representatives, substantially to the effect set forth in Exhibit B hereto.
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(e)
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Davis Polk & Wardwell London LLP, United States counsel for the Company,
shall have furnished to the Representatives their written opinion and disclosure letter, dated the Time of Delivery for such Designated
Securities, in form and substance reasonably satisfactory to the Representatives, substantially to the effect set forth in Exhibit
C hereto.
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(f)
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On the date of the applicable Pricing Agreement and at the Time of Delivery for such Designated
Securities, KPMG LLP, the independent registered public accountants of the Company, which has audited the financial statements
of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement as specified
under the heading “Experts” in the Registration Statement, shall have furnished to the Representatives a letter or
letters, dated as of each such date and in form and substance satisfactory to the Representatives, containing statements and information
of the type ordinarily included in accountants' “comfort letters” to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement and the Prospectus as amended or supplemented and as
to such other matters as the Representatives may reasonably request; and
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(g)
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The Company shall have furnished or caused to be furnished to the Representatives
a certificate or certificates, dated the Time of Delivery for the Designated Securities, of officers of the Company satisfactory
to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement and the Pricing
Agreement at and as of the Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed
prior to such Time of Delivery, and as to the matters set forth in Sections 8(a) and 12(i) hereof.
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9.
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(a)
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The
Company agrees to indemnify and hold harmless each Underwriter from and against any and all losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (including without limitation, legal fees and other expenses reasonably incurred
in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred) that arise
out of, or are based upon, (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement or the omission or alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material
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fact contained in the Basic Prospectus,
any Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto, the Pricing Disclosure Package, any Issuer
Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the
Act, including the information in the final term sheet filed in accordance with Section 5(a) of this Agreement and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or the omission or alleged omission to state therein a material
fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in
each case except to the extent that any such loss, claim, damage or liability arises out of or is based upon written information
furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in the Prospectus
as amended or supplemented relating to such Securities.
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(b)
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Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company
to the same extent as the indemnity to each Underwriter set forth in paragraph (a) above, but only with respect to any losses,
claims, damages or liabilities that arise out of, or are based upon, any untrue statement or alleged untrue statement or omission
or alleged omission in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Prospectus, or any amendment
or supplement thereto, the Pricing Disclosure Package, or any Issuer Free Writing Prospectus and any other prospectus relating
to the Securities, or any amendment or supplement made in reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives expressly for use therein. The Company acknowledges that the only information
which has been so provided by the Underwriters includes: (i) the names of the Underwriters at the bottom of the front and back
cover pages of the Prospectus and (iii) the sixth, seventh and eighth paragraphs of text under the caption “Underwriting”
on pages S-30 and S-31 of the Prospectus relating to over-allotment, stabilization and penalty bids.
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(c)
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Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the
commencement of any action (including any governmental action), such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, promptly notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection, except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure. In case any such action shall be brought or asserted against any
indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall retain counsel
reasonably satisfactory to the indemnified party (who shall not, without the consent of the indemnified party, be counsel to the
indemnifying party) to represent the indemnified party and any others entitled to indemnification pursuant to this Section that
the indemnifying party may designate in such proceedings and shall pay the fees and expenses of such proceeding, as incurred. In
any such proceeding, any indemnified person shall have the right to retain its own counsel, but the fees and expenses of such
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counsel shall be at the
expense of such indemnified person unless (i) the indemnifying person and indemnified person shall have mutually agreed to
the contrary; (ii) the indemnifying person has failed within a reasonable time to retain counsel reasonably satisfactory to
the indemnified person; (iii) the indemnified person shall have reasonably concluded that there may be legal defenses
available to it that are different from or in addition to those available to the indemnifying person; or (iv) the named
parties in such proceeding (including any impleaded parties) include both the indemnifying person and the indemnified person
and representation of both parties by the same counsel would be inappropriate due to actually or potential differing
interests between them. It is understood and agreed that the indemnifying person shall not, in connection with any suit,
action or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all indemnified persons, and that all such fees and expenses shall be reimbursed as they
are incurred. Any such separate firm for any Underwriter and any related indemnified person shall be designated in writing by
the Representatives and any such separate firm for the Company and any other related indemnified person shall be designated
in writing by the Company. The indemnifying person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be any final judgment for the plaintiff, the indemnifying
person agrees to indemnify each indemnified person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an indemnified person shall have requested that an
indemnifying person reimburse the indemnified person for fees and expenses of counsel as contemplated by this paragraph, the
indemnifying person shall be liable for any settlement of any proceeding affected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by the indemnifying person of such request and (ii) the
indemnifying person shall not have reimbursed the indemnified person in accordance with such request prior to the date of
such settlement. No indemnifying person shall, without the written consent of the indemnified person, effect any settlement
of any pending or threatened claim in respect of which any indemnified person is or could have been a party and
indemnification could have been sought hereunder by such indemnified person, unless such settlement (x) includes an
unconditional release of such indemnified person, in form and substance reasonably satisfactory to such indemnified person,
from all liability arising out of such actions or claims that are the subject matter of such proceeding and (y) does not
include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of indemnified
person.
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(d)
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To the extent that the indemnification provided for in
this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect
of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company
on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities
to which loss, claim,
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damage or liability (or action
in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable
law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion
as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the
Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same respective
proportions as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters, in each case as set forth in the table on the cover page
of the Prospectus as amended and supplemented. The relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company on the one hand or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required
to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten
by it exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such Securities and not joint.
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(e)
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The obligations of the Company under this Section 9 shall be in addition to any liability which
the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act and to the Underwriters' affiliates, directors and officers; and the obligations of the Underwriters
under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company, the duly authorized representative of the Company
in the United States, and to each person, if any, who controls the Company within
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the meaning of the Act or the
Exchange Act. To the extent any of the aforementioned costs, fees and expenses are reimbursed to the Underwriters or any related
indemnified person, such reimbursement shall be on an after tax basis and include the amount of any applicable irrecoverable value
added tax.
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10.
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(a)
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If any Underwriter shall default in its obligation to purchase the Designated Securities which it has agreed to purchase under the Pricing Agreement relating to such Designated Securities, the Representatives may in their discretion arrange for themselves or another party or other parties to purchase such Designated Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Designated Securities, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties reasonably satisfactory to the Representatives to purchase such Designated Securities on such terms. In the event that, within the respective prescribed period, the Representatives notify the Company that the Representatives have so arranged for the purchase of such Designated Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Designated Securities, the Representatives or the Company shall have the right to postpone the Time of Delivery for such Designated Securities for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus as amended or supplemented, or in any other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to the Pricing Agreement with respect to such Designated Securities.
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(b)
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If, after giving effect to any arrangements for the purchase of the Designated Securities of a
defaulting Underwriter or Underwriters by the Representatives, the Company as provided in subsection (a) above, the aggregate principal
amount of such Designated Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal
amount of Designated Securities which such Underwriter agreed to purchase under the Pricing Agreement relating to such Designated
Securities and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Designated Securities which such Underwriter agreed to purchase under such Pricing Agreement) of the Designated Securities
of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
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(c)
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If, after giving effect to any arrangements for the purchase of the Designated
Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of the Designated Securities which remains unpurchased exceeds one-eleventh of the aggregate principal
amount of the Designated Securities, as
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referred to in subsection (b) above,
or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase
Designated Securities of a defaulting Underwriter or Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the indemnity
and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its
default.
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11.
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The respective indemnities, agreements, representations, warranties and other statements of the
Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any Underwriter or the Company, the duly authorized representative
of the Company in the United States or any officer or director or controlling person of the Company, and shall survive delivery
of and payment for the Designated Securities.
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12.
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Any Pricing Agreement shall be subject to termination in the absolute
discretion of the Representatives, after consultation with the Company, if, since the respective dates as of which
information is given in the Pricing Disclosure Package in the case of clause
(i) below, or subsequent to
the Applicable Time and prior to the Time of Delivery of the Designated Securities, in the case of clauses (ii) through (vii) below,
(i) there shall have been a material adverse change, or any development which could reasonably be expected to result in a material
adverse change, in the business, properties or financial
condition of the Company and
its consolidated subsidiaries considered as a whole, otherwise than as set forth or contemplated in the Pricing Disclosure Package;
(ii) there shall have occurred a downgrading in the rating accorded the Company's senior debt securities by Moody's Investor Services,
Inc. (“Moody's”) or Standard & Poor's Corporation (“S&P”) or, in the event that the
Company's senior debt securities are not rated by either Moody's or S&P, by another “nationally recognized statistical
rating organization” as such term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act; (iii)
such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect
to, its rating of the Securities or of any other senior debt securities or preferred stock of or guaranteed by the Company (other
than an announcement with positive implications of a possible upgrading); (iv) there shall have been a change or development involving
a prospective change in United States or United Kingdom taxation affecting the Designated Securities or the imposition of exchange
controls by the United States or the United Kingdom affecting the Designated Securities or the transfer thereof, otherwise than
as set forth or contemplated in the Pricing Disclosure Package; (v) trading in any securities of the Company or trading in securities
generally on the New York Stock Exchange or the London Stock Exchange or any other exchange where the Designated Securities are
listed or intended to be listed shall have been suspended or materially limited; (vi) a general moratorium on commercial banking
activities in the State of New York shall have been declared by either U.S. Federal or New York State authorities or a general
moratorium on commercial banking activities in the United Kingdom shall have been declared by authorities in the United Kingdom;
(vii) there shall have occurred the outbreak or escalation of hostilities involving the United States or the United Kingdom or
the declaration by the United States or the
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United Kingdom of a national
emergency or war; or (viii) there shall have occurred any change in financial markets or other national or international calamity
or crisis of such magnitude and severity in its effect on the financial markets, as, in any such case described in clauses (i)
through (viii) above, in the judgment of the Representatives, after consultation with the Company, to make it impracticable to
proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the
Pricing Disclosure Package and the Prospectus, as amended or supplemented relating to such Securities.
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13.
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If any Pricing Agreement shall be terminated by the Underwriters of the Designated Securities pursuant
to clause (i) of Section 12 hereof or because of any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of the Pricing Agreement, or if for any reason the Company shall be unable to perform its obligations
under the Pricing Agreement, the Company will reimburse the Underwriters of such Securities for all out-of-pocket expenses (including
the fees and disbursements of counsel) reasonably incurred by the Underwriters in connection with the Designated Securities.
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Notwithstanding the termination
of any Pricing Agreement, the provisions of Section 9, Section 10 and Section 11 hereof shall remain in effect.
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14.
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In all dealings hereunder, the Representatives of the Underwriters of Designated Securities shall
act on behalf of each of such Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such Representatives jointly or by such of the Representatives,
if any, as may be designated for such purpose in the Pricing Agreement.
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All statements, requests, notices
and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, e-mail or facsimile
transmission as directed in the applicable Pricing Agreement; and if to the Company shall be delivered or sent by mail, e-mail
or facsimile transmission to its address set forth in the Registration Statement, Attention: Company Secretary, or such other address
as the Company shall notify in writing to the Representatives; provided, however, that any notice to an Underwriter
of Designated Securities pursuant to Section 9(c) hereof shall be delivered or sent by mail, e-mail or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' questionnaire, or e-mail constituting such questionnaire, which
address will be supplied to the Company by the Representatives upon request. Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
In accordance with the requirements
of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain,
verify and record information that identifies their respective clients, including the Company, which information may include the
name and address of their respective clients, as well as other information that will allow the underwriters to properly identify
their respective clients.
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15.
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This Agreement and each Pricing Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Section 9 and Section 11 hereof, the officers and directors of
the Company and each person who
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controls the Company or any Underwriter
and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or any such Pricing Agreement. No purchaser of any of the Designated Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
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16.
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The Company acknowledges and agrees that (i) the purchase and sale of any Designated Securities
pursuant to this Agreement is an arm's-length commercial transaction between the Company, on the one hand, and the several Underwriters,
on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as
principal and not as an agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary responsibility
in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether
such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except
the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to
the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered
advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction
or the process leading thereto.
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17.
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(a)
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In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
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(b)
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In the event that any Underwriter that is a Covered Entity or a Covered Affiliate of such Underwriter
becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised
against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the
U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
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“Covered Affiliate” has the meaning
assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the
following:
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(i)
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a “covered entity” as that term is defined in, and interpreted in accordance
with, 12
C.F.R. § 252.82(b);
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(ii)
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a “covered bank” as that term is defined in, and interpreted in accordance with, 12
C.F.R. § 47.3(b); or
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(iii)
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a “covered FSI” as that term is defined in, and interpreted in accordance with, 12
C.F.R. § 382.2(b).
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“Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1,
as applicable.
“U.S. Special Resolution
Regime” means each of (i) the U.S. Federal Deposit Insurance Act, as amended and the regulations promulgated thereunder
and (ii) Title II of the U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act, as amended and the regulations promulgated
thereunder.
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18.
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Notwithstanding and to the exclusion of any other term of this Agreement or
any other agreements, arrangements, or understandings between the Underwriters and the Company, the Company acknowledges and accepts
that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution
Authority, and acknowledges, accepts and agrees to be bound by:
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(a)
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the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to
any BRRD Liability of an Underwriter to the Company under this Agreement, that (without limitation) may include and result in any
of the following, or some combination thereof;
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(b)
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the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;
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(c)
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the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other
obligations of the relevant Underwriter or another person, and the issue to, or conferral on, the Company of such shares, securities
or obligations;
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(d)
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the cancellation of the BRRD Liability; or
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(e)
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the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates
on which any payments are due, including by suspending payment for a temporary period; and
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(f)
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the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority,
to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority.
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For purposes of this Section
18, the following terms shall have the respective meanings set out below:
“Bail-in Legislation”
shall mean, in relation to the United Kingdom and a member state of the European Economic Area which has implemented, or which
at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in
Legislation Schedule from time to time.
“Bail-in Powers”
shall mean any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant
Bail-in Legislation.
“BRRD” shall
mean Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
“BRRD Liability”
shall mean a liability in respect of which the relevant Write-down and Conversion Powers in the applicable Bail-in Legislation
may be exercised.
“EU Bail-in Legislation
Schedule” shall mean the document described as such, then in effect, and published by the Loan Market Association (or
any successor person) from time to time at http://www.lma.eu.com/.
“Relevant Resolution
Authority” shall mean the resolution authority with the ability to exercise any Bail-in Powers in relation to any of
the Underwriters.”
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19.
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The Company agrees that any suit, action or proceeding arising out of or relating to this Agreement
or the Pricing Agreement or the transactions contemplated hereby or thereby may be instituted in the courts of the State of New
York in The City and County of New York and of the United States for the Southern District of New York, and waives to the fullest
extent it may do so any objection which it may now or hereafter have to the laying of venue or any such proceeding, and irrevocably
submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The Company hereby appoints Smith & Nephew Inc., 150 Minuteman Road, Andover, Massachusetts 01810 as its authorized agent (the “Authorized Agent”)
upon which process may be served in any suit, action or proceeding based on this Agreement or the Pricing Agreement which may be
instituted in any such court by any Underwriter, the directors, officers, employees, affiliates and agents of any Underwriter,
or any person who controls any Underwriter. Such appointment shall be irrevocable so long as any of the Designated Securities remain
outstanding unless and until a successor Authorized Agent shall be appointed and such successor shall accept such appointment.
The Company will take any and all action, including the filing of any and all documents and instruments, that may be necessary
to continue such appointment or appointments in full force and effect as aforesaid. Service of process upon the Authorized Agent
and written notice of such service to the Company (mailed or delivered as aforesaid) shall be deemed, in every respect, effective
service of process upon the Company. Notwithstanding the foregoing, any action based on this Agreement or any Pricing Agreement
may be instituted by any Underwriter against the Company in any competent court in the United Kingdom.
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20.
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Each reference in this Agreement and any Pricing Agreement to U.S. dollars (the “relevant
currency”), including by use of the symbol “$”, is of the essence. To the fullest extent permitted by law,
the obligation of each party in respect of any amount due under this Agreement or any Pricing Agreement will, notwithstanding any
payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in
the relevant currency that the party entitled to receive such payment may, in accordance with its normal procedures, purchase with
the sum paid in such other currency (after any premium and costs of exchange) on the business day immediately following the day
on which such party receives such payment. If the amount in the relevant currency that may be so purchased for any reason falls
short of the amount originally due, the applicable party will pay such additional amounts, in the relevant currency, as may be
necessary to compensate for the shortfall. Any obligation of the applicable party not discharged by such payment will, to the fullest
extent
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permitted by applicable law, be due as a separate
and independent obligation and, until discharged as provided herein, will continue in full force and effect.
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21.
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To the extent the Company has or hereafter may acquire any immunity (sovereign or otherwise) from
any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice,
attachment in aid or otherwise) with respect to itself or any of its property, to the fullest extent permitted by applicable law,
the Company hereby irrevocably waives and agrees not to plead or claim such immunity in respect of its obligations under this Agreement
or any Pricing Agreement.
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22.
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Time shall be of the essence of each Pricing Agreement. As used herein, the
term “business day” shall mean any day when the Commission's office in Washington, D.C. is open for business.
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23.
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THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS. EACH OF THE COMPANY AND THE
UNDERWRITERS HEREBY IRREVOCABLY WAIVES, 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 AGREEMENT OR ANY PRICING AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY.
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24.
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This Agreement and each Pricing Agreement may be executed by any one or more of the parties hereto
and thereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument. The exchange of copies of this Agreement and each Pricing Agreement and
of the signature pages thereto that are executed by manual signatures that are scanned, photocopied or faxed or by other electronic
signing created on an electronic platform (such as DocuSign) or by digital signing (such as Adobe Sign) shall constitute effective
execution and delivery of this Agreement and each Pricing Agreement for all purposes.
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[Signature Pages to Follow]
IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed as of October 7,
2020.
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SMITH & NEPHEW PLC
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By:
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/s/ Susan M. Swabey
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Name: Susan Margaret Swabey
Title: Company Secretary
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[Signature page to the Underwriting Agreement]
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BOFA SECURITIES, INC.
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By:
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/s/ Andrew R. Karp
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Name: Andrew Karp
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Title: Managing Director
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J.P. MORGAN SECURITIES LLC
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By:
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/s/ Robert Bottamedi
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Name: Robert Bottamedi
Title: Executive Director
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For themselves and as Representatives of the several Underwriters.
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[Signature page to the Underwriting Agreement]
ANNEX I
PRICING AGREEMENT
October 7, 2020
BofA Securities, Inc.
One Bryant Park
New York, New York 10036
United States of America
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
United States of America
as representatives of the several Underwriters named in Schedule
I hereto
Ladies and Gentlemen:
Smith & Nephew plc (the “Company”) proposes,
subject to the terms and conditions stated herein and in the Underwriting Agreement dated October 7, 2020, a copy of which is
attached hereto as Annex A (the “Underwriting Agreement”), to issue and sell to the Underwriters named in Schedule
I hereto (the “Underwriters”) the Securities specified in Schedule II hereto (the “Notes”).
Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed
to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement, except that
each representation and warranty which refers to the Basic Prospectus, Pricing Disclosure Package or the Prospectus in Section
2 of the Underwriting Agreement shall be deemed to be a representation or warranty as of the date of the Underwriting Agreement
in relation to the Basic Prospectus (as defined therein) as amended or supplemented as of the date of the Underwriting Agreement
and also a representation and warranty as of the date of this Pricing Agreement in relation to the Basic Prospectus, Pricing Disclosure
Package or the Prospectus, as amended or supplemented, relating to the Notes which are the subject of this Pricing Agreement.
Each reference to the “Representatives” herein and in the provisions of the Underwriting Agreement so incorporated
by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are
used herein as therein defined. The Representatives designated to act on behalf of each of the Underwriters of the Notes pursuant
to Section 14 of the Underwriting Agreement and the address of the Representatives referred to in such Section 14 are set forth
at the end of Schedule II hereto. Schedule III sets forth each Issuer Free Writing Prospectus that is part of the Pricing Disclosure
Package and any additional documents incorporated by reference that were filed with the Commission subsequent to the Commission's
close of business on the business day immediately prior to the date of the execution of this Pricing Agreement. Schedule IV sets
forth all documents that the Company and the Representatives agree are to be included in the Pricing
AI-1
Disclosure Package. The final term
sheet prepared in accordance with Section 5(a) of the Underwriting Agreement are attached hereto as Schedule V.
The “Applicable Time” means 2.43 p.m. New
York time on the date hereof.
An amendment of the Registration
Statement, or a supplement to the Basic Prospectus, as the case may be, relating to the Notes, in the form heretofore delivered
to you is now proposed to be filed with the Commission.
Subject to the terms and conditions
set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to issue and sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule II hereto, the principal amount of Notes set forth
opposite the name of such Underwriter in Schedule I hereto.
All statements, requests, notices and agreements
hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, e-mail or facsimile transmission
to you as the Representatives in care of: BofA Securities, Inc., One Bryant Park, New York, New York 10036, United States of America,
Attention: High Grade Debt Capital Markets Transaction Management / Legal, Tel: +1 800 294 1322, Fax: +1 (212) 901 7881
and J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, United States of America, Attention: Investment Grade
Syndicate Desk, Tel: +1 (212) 834 4533, Fax: +1 (212) 834 6081; and if to the Company shall be delivered or sent by mail, e-mail
or facsimile transmission to its address set forth in the Registration Statement, Attention: Company Secretary, or such other address
as the Company shall notify in writing to the Representatives at their respective foregoing addresses; provided, however,
that any notice to an Underwriter of Notes pursuant to Section 9(c) of the Underwriting Agreement shall be delivered or sent by
mail, e-mail or facsimile transmission to such Underwriter at its address set forth in its Underwriters’ questionnaire, or
e-mail constituting such questionnaire, which address will be supplied to the Company by the Representatives upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt thereof.
If the foregoing is in accordance with
your understanding, please sign and return to us counterparts hereof, and upon acceptance hereof by you, on behalf of each of the
Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein
by reference, shall constitute a binding agreement between each of the Underwriters and the Company. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the Company for examination upon request, but without warranty
on the part of the Representatives as to the authority of the signers thereof. The exchange of copies of this Agreement and of
the signature pages hereto that are executed by manual signatures that are scanned, photocopied or faxed or by other electronic
signing created on an electronic platform (such as DocuSign) or by digital signing (such as Adobe Sign) shall constitute effective
execution and delivery of this Agreement for all purposes.
AI-2
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Very truly yours,
SMITH & NEPHEW PLC
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By:
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Title:
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Name:
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AI-3
Accepted as of the date hereof:
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BOFA SECURITIES, INC.
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By:
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Name:
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Title:
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J.P. MORGAN SECURITIES LLC
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By:
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Name:
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Title:
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For themselves and as Representatives of the several Underwriters.
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AI-4
SCHEDULE I
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Principal Amount of Notes to be Purchased
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$[·]
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BofA Securities, Inc.
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$[·]
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J.P. Morgan Securities LLC
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$[·]
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SMBC Nikko Securities America, Inc.
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$[·]
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Mizuho Securities USA LLC
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$[·]
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Bank of China Limited, London Branch
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$[·]
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HSBC Securities (USA) Inc.
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$[·]
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SG Americas Securities, LLC
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$[·]
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Wells Fargo Securities, LLC
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$[·]
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Total:
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$[·]
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I-1
SCHEDULE II
Title of Notes:
[•]% Notes due 2030
Aggregate Principal Amount:
$[•] principal amount of the Notes
Price to Public:
[•]% of the principal amount of the Notes, plus accrued
interest, if any, from October [•], 2020
Purchase Price by Underwriters:
[•]% of the principal amount of the Notes
Specified funds for payment of purchase price:
New York Clearing House funds
Indenture:
Indenture to be dated on or around
October 14, 2020 between the Company and The Bank of New York Mellon, London Branch
Maturity:
October 14, 2030
Interest Rate:
[•]% per annum
Interest Payment Dates:
Interest on the Notes will be paid semi-annually in
arrears on [•] and [•] of each year, commencing [•], 2021, to (and including) maturity
Redemption Provisions:
The Notes may be redeemed at any time at
the Company’s option, in whole or in part, at the redemption prices described in the Prospectus Supplement and the Issuer
Free Writing Prospectus
Make Whole
At any time prior to [•] at a discount rate of
Treasury rate plus [•] bps
Par Call
II-1
On or after [•], 100%
Tax Redemption
100%
Repurchase upon Change of Control Repurchase Event:
101%
Sinking Fund Provisions:
No sinking fund provisions
Defeasance provisions:
The defeasance and covenant defeasance provisions of the Indenture
apply to the Notes
Time of Delivery:
October 14, 2020
Closing Location for Delivery of Securities:
The offices of Davis Polk & Wardwell London LLP, 5 Aldermanbury
Square, London EC2V 7HR United Kingdom
Names and addresses of Representatives:
Designated Representatives:
BofA Securities, Inc.
J.P. Morgan Securities LLC
Address for Notices:
BofA Securities, Inc.
One Bryant Park
New York, New York 10036
United States of America
Facsimile: +1 (212) 901 7881
Attention: High Grade Debt Capital Markets Transaction Management
/ Legal
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
United States of America
Facsimile: +1 (212) 834 6081
Attention: Investment Grade Syndicate Desk
II-2
SCHEDULE III
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(a)
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Issuer Free Writing Prospectus, if any: None
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(b)
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Additional Documents Incorporated by Reference, if any: None
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III-1
SCHEDULE IV
Pricing Disclosure Package:
Basic Prospectus
Preliminary Prospectus
Issuer Free Writing Prospectus dated October 7, 2020 containing
the final terms of the Notes
IV-1
SCHEDULE V
FINAL TERM SHEET
V-1
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Free Writing Prospectus dated October 7, 2020
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Filed pursuant to Rule 433
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(to Prospectus dated October 2, 2020 and
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Registration Statement No. 333-249255
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Preliminary Prospectus Supplement dated October 7,
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2020)
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$[•] [•]% Notes due 20[•]
(the “Notes”)
Final Term Sheet
October 7, 2020
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Issuer:
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Smith & Nephew plc (the “Issuer”)
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Security Description:
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[Senior] Notes
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Trade Date:
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October 7, 2020
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Settlement Date*:
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October 14, 2020 (T+4)
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Maturity Date:
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October 14, 2030
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Aggregate Principal Amount:
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$[·] (the “Aggregate Principal Amount”)
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Price to Public:
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[·]% of the Aggregate Principal Amount
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Coupon:
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[·]%
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Interest Payment Dates:
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[·], and [·], commencing [·], 2021
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Benchmark Treasury:
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[·]% due [·], 20[·]
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Benchmark Treasury Price and Yield:
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[·], [·]%
|
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Spread to Benchmark Treasury:
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[·] basis points
|
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Yield to Maturity:
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[·]%
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Make Whole Call:
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At any time prior to [·] at a discount rate of Treasury rate plus [·] bps
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Par Call:
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On or after [·], 100%
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Tax Redemption:
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100%
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Change of Control Repurchase Event:
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Put at 101%
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Gross Proceeds to Issuer:
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$[·]
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Underwriting Discount:
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[·]% of the Aggregate Principal Amount
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Net Proceeds to Issuer (before expenses):
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$[·]
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Day Count Fraction:
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30/360 (following, unadjusted)
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Business Days:
|
New York and London
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Governing Law:
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New York
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|
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Listing:
|
Application will be made for the Notes to be listed on the New York Stock Exchange.
|
|
|
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|
CUSIP:
|
83192P AA6
|
|
|
|
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ISIN:
|
US83192PAA66
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Denominations/Multiple:
|
Minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
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Ratings**:
|
Baa2 (Moody’s)
BBB+ (S&P)
|
|
Joint Book-Running Managers:
|
BofA Securities, Inc.
J.P. Morgan Securities LLC
|
|
Bookrunners:
|
Bank of China Limited, London Branch
HSBC Securities
(USA) Inc.
Mizuho Securities USA LLC
SG Americas Securities,
LLC
SMBC Nikko Securities America, Inc.
Wells Fargo Securities, LLC
|
* Pursuant to Rule 15c6-1 under the
Securities Exchange Act of 1934, as amended, trades in the secondary market are generally required to settle in two business days,
unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Notes prior to the
delivery of the Notes will be required to specify alternative settlement arrangements to prevent a failed settlement. Such purchasers
should consult their own advisors.
**A securities rating is not a recommendation to buy, sell
or hold securities and may be subject to revision or withdrawal at any time.
The Issuer has filed a registration
statement (including the Prospectus) with the U.S. Securities and Exchange Commission (the “SEC”) for this
offering. Before you invest, you should read the Preliminary Prospectus Supplement and the Prospectus in that registration statement,
and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may
get these documents for free by searching the SEC online database (EDGAR®) at www.sec.gov.
Alternatively, you may obtain a copy of the Prospectus and Preliminary Prospectus Supplement from BofA Securities, Inc. by calling
toll free +1-800-294-1322 or J.P. Morgan Securities LLC by calling collect +1-212-834-4533.
If this document has been distributed
by electronic transmission, such as e-mail, then such transmission cannot be guaranteed to be secure or error-free as information
could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not
accept liability for any errors or omissions in the contents of this document, which may arise as a result of electronic transmission.
MiFID II product governance / Professional
investors and ECPs only target market: Solely for the purposes of the manufacturer’s product approval process, the target
market assessment in respect of the Notes has led to the conclusion that: (i) the target market for the Notes is eligible counterparties
and professional clients only, each as defined in Directive 2014/65/EU, as amended (“ MiFID II”); and (ii)
all channels for distribution of the Notes to eligible counterparties and professional clients are appropriate. Any person subsequently
offering, selling or recommending the Notes (a “distributor”) should take into consideration the manufacturer’s
target market assessment; however, a distributor subject to MiFID II is responsible for undertaking its own target market assessment
in respect of the Notes (by either adopting or refining the manufacturer’s target market assessment) and determining appropriate
distribution channels.
SCHEDULE VI
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(a)
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Issuer Free Writing Prospectus not contained in Pricing Disclosure Package:
Electronic road show
|
VI-1
ANNEX A
UNDERWRITING AGREEMENT
EXHIBIT A
[•], 2020
BofA Securities, Inc.
One Bryant Park
New York, New York 10036
United States of America
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
United States of America
as representatives of the several Underwriters named
in Schedule I to the Pricing Agreement (as defined below)
Dear Sir or Madam
U.S.$[●] [●]% Notes due 20[●] to be issued
by Smith & Nephew plc
We have acted as advisers as to English law to Smith
& Nephew plc, a public limited company organised under the laws of England and Wales (the “Issuer”), in
connection with the issue by the Issuer of U.S.$[●] [●]% Notes due 20[●] (the “Notes”) under
its automatic shelf Registration Statement on Form-3 filed with the United States Securities and Exchange Commission on [●],
2020 (the “Registration Statement”) for the purposes of registering, under the United States Securities Act
of 1933, as amended, the Notes to be issued, from time to time, pursuant to the Indenture referred to below (the offer and issue
of the Notes being referred to in this opinion as the “Transaction”).
We have been asked to deliver
this opinion to you as contemplated by Section [8(c)] of the underwriting agreement dated [●], 2020 between, inter alia,
you and the Issuer (the “Notes Underwriting Agreement”).
The Notes will be issued by the Issuer pursuant to
the provisions of an indenture dated [●], 2020 (the “Notes Indenture”) between the Issuer and The Bank
of New York Mellon, London Branch as trustee.
For the purposes of this opinion, we have examined the documents
listed in Schedule 1 to this opinion.
Capitalised terms used in this opinion shall, unless otherwise
defined, have the meaning given to them in Schedule 1 and paragraphs 14 and 15 of Schedule 2 to this opinion, provided that the
terms “Disclosure Package” and “Prospectus” shall have the meanings given to them
A-1
in the separate opinion of Davis Polk & Wardwell
London LLP as to the laws of the State of New York and the federal laws of the United States of America of even date herewith.
This opinion is confined to matters of English law as
at the date of this opinion, and this opinion and any non-contractual obligations arising out of or in relation to it are governed
by and shall be construed in accordance with English law. Accordingly, we express no opinion with regard to any system of law other
than English law as currently applied by the English courts. In particular, we express no opinion on European Union law as it applies
to any jurisdiction other than England and Wales. To the extent that the laws of New York or of any other jurisdiction may be relevant,
we have made no independent investigation thereof and our opinion is subject to the effect of such laws.
Statements relating to United Kingdom taxation are based
on English law as applied by the English courts and on the generally published practice of HM Revenue and Customs, as at the date
of this opinion. This opinion does not extend to (A) any law relating to tax made by the Scottish Parliament, the National Assembly
for Wales or the Northern Irish Assembly, (B) any other law relating to any law so made, or (C) any practice relating to any such
law, and we express no opinion on any such matters.
We assume no obligation to notify
you of any future changes in law or the practice of HM Revenue and Customs, including any changes occurring as a result of the
United Kingdom withdrawing from the European Union, which may affect the opinions expressed herein, or otherwise to update this
opinion in any respect.
Opinions
On the basis of our examination of the documents listed
in Schedule 1 to this opinion and the other matters referred to above, and subject to the assumptions set out in Schedule 2 to
this opinion, the qualifications set out in Schedule 3 to this opinion and any matters not disclosed to us, we are of the opinion
that:
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1.
|
Corporate existence: The Issuer is a company that has been duly incorporated in Great Britain
and registered in England and Wales as a public company limited by shares and the Company Search and Central Registry Search revealed
no application, petition, order or resolution for the administration or winding up of the Issuer and no notice of appointment of,
or intention to appoint, a receiver or administrator in respect of the Issuer.
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2.
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Corporate power: The Issuer has the requisite corporate capacity to enter into the Opinion
Documents and to issue the Notes and, in each case, to perform its obligations thereunder.
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3.
|
Corporate action: All corporate action required to be taken by the Issuer
to authorise the execution by it of, and the performance of its obligations under, the Opinion Documents, and to issue the Notes,
has been duly taken and each of the Opinion Documents and the Notes has been duly executed by or on behalf of the Issuer.
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4.
|
No violation: The execution and delivery by the Issuer of the Opinion
Documents, the issuance by the Issuer of the Notes, and, in each case, the performance of its obligations thereunder do not of
themselves result in any violation by the Issuer of any law or
|
A-2
regulation having the force of law in England and
applicable to companies generally, or of any term of its articles of association.
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5.
|
Consents etc.: No consents, licences, approvals or authorisations of, or registrations or
filings with, any governmental or regulatory authority or agency in the United Kingdom are required by law applicable to companies
generally by the Issuer as a condition to the execution or delivery by the Issuer of, or the performance by the Issuer of its obligations
under, the Opinion Documents or the Notes, provided that offers and sales of the Notes in the United Kingdom are made only in the
circumstances set out in section 86 of the Financial Services and Markets Act 2000, as amended (the “FSMA”).
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6.
|
Choice of foreign law: The choice of New York law to govern (i) the
Notes Underwriting Agreement, pursuant to Section [23] thereof, (ii) the Notes Indenture, pursuant to Section [10.08] thereof and
(iii) the Pricing Agreement and the Notes pursuant to the terms thereof, would be recognised and upheld by the English courts (if
the English courts were to take jurisdiction).
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7.
|
Enforcement of Foreign Judgments: There are
no arrangements currently in force for the reciprocal enforcement of judgments between the United Kingdom and the United States.
However, a final judgment of a relevant court sitting in the State of New York in relation to the obligations of the Issuer under
(i) the Notes Underwriting Agreement, (ii) the Notes Indenture, (iii) the Pricing Agreement and (iv) the Notes should be
capable of indirect enforcement by action in the English courts without retrial or re-examination of the matters thereby adjudicated.
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8.
|
Fair summary: The statements made under the section “Enforcement of Certain Civil
Liabilities” in the Registration Statement, the Disclosure Package and the Prospectus, insofar as such section purports to
constitute matters of English law is, in all material respects, a fair summary of the matters it purports to summarise.
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9.
|
Certain United Kingdom Tax Considerations. The statements included in
the Registration Statement, the Disclosure Package and the Prospectus under the caption “Certain United Kingdom and United
States Tax Considerations – United Kingdom Taxation”, to the extent that they purport to describe provisions of United
Kingdom tax law or legal conclusions with respect thereto, are, in all material respects, a fair summary of the matters they purport
to summarise.
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10.
|
Stamp duties: No United Kingdom stamp duty or stamp duty reserve tax
is required to be paid on the execution of any Opinion Document or on the issue or initial delivery or initial transfer of the
Notes.
|
This opinion is addressed to you
solely for your own benefit in relation to the Transaction and may not be disclosed or furnished to, or used or relied upon by,
any other person (including, without limitation, any offeree or holder of Notes) or used or relied upon by you for any other purpose
without, in any such case, our prior written consent. This opinion may, however, without our further written consent, be used by
you and, if necessary, furnished, where it is reasonable to do so and without prior notice to us (to the extent notice is impracticable)
(i) for the purpose of responding to requests to review the opinion by governmental, regulatory or judicial authorities having
competent jurisdiction over you and (ii) in connection with the defence of any legal or regulatory proceeding or investigation
arising out of the Transaction.
A-3
We have not advised or assisted you in
any way in connection with the Issue Documents or the Transaction, and you have instead been advised on such matters by your own
legal adviser, Sidley Austin LLP. Accordingly, beyond the matters expressly opined on in this opinion, the giving of this opinion
must not be taken to create or imply any duty of care on our part to you in connection with the Issue Documents or the Transaction.
The provision of this opinion to you does not create any client relationship between you and this firm, we shall have no obligation
to advise you in relation to any of the matters referred to herein, and we expressly reserve the right to represent or advise the
Issuer or any of its affiliates at any time in the future in connection with any matters in any way relating to the Issue Documents
or the Transaction, and the existence of this opinion shall not be deemed to have caused us any conflict of interest in relation
thereto.
Yours faithfully
A-4
SCHEDULE 1
DOCUMENTS EXAMINED
For the purposes of this opinion, we have examined
the following documents:
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1.
|
a copy of the Registration Statement;
|
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2.
|
a copy of the executed New York law governed Notes Underwriting Agreement;
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3.
|
a copy of the executed New York law governed Notes Indenture;
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4.
|
a copy of the executed New York law governed pricing agreement dated [●], 2020 (the “Pricing
Agreement”);
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5.
|
a copy of the preliminary prospectus supplement dated [●], 2020 and a
copy of the final prospectus supplement dated [●], 2020 (the “Prospectus Supplement”), each relating to
the Notes;
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6.
|
an officer’s certificate establishing the issue of the Notes pursuant
to the Indenture dated [●], 2020;
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7.
|
a certificate from [●], in [his/her] capacity as [a Director/Company Secretary] of the Issuer,
dated [●], 2020 (the “Officer’s Certificate”) having attached to it, inter alia:
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(a)
|
a copy of the certificate of incorporation in respect of the Issuer certified to be a true and
correct copy;
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(b)
|
a copy of each certificate of incorporation on change of name in respect of
the Issuer each certified to be a true and correct copy;
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(c)
|
a copy of the certificate of incorporation on re-registration as a public limited
company in respect of the Issuer certified to be a true and correct copy;
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(d)
|
a copy of the articles of association of the Issuer certified to be a true and correct copy as
at: (i) the date of the meeting of the Board of Directors of the Issuer held on [●], 2020 (the “Board Meeting”);
(ii) the date of the meeting of the committee of the Board of Directors of the Issuer held on [●], 2020 (the “Committee
Meeting”) and (iii) the date hereof;
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(e)
|
a copy of the minutes of the Board Meeting (the “Board Minutes”)
and a copy of the minutes of the Committee Meeting (the “Committee Minutes”) each certified to be a true and
correct copy; and
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(f)
|
a list of persons duly appointed as directors of the Issuer (who duly remain
as directors of the Issuer), certified to be a true and correct copy.
|
The Notes Underwriting Agreement,
the Notes Indenture and the Pricing Agreement are referred to in this opinion letter collectively as the “Opinion Documents”
and each as an “Opinion Document”. The Opinion Documents and the Notes are together referred to in
A-5
this opinion letter collectively
as the “Issue Documents” and each as an “Issue Document”.
Except as stated above we have not examined
any contracts, instruments or other documents entered into by any party to any of the Opinion Documents or any corporate records
of any party to any of the Opinion Documents and have not made any other enquiries, other than the Company Search and Central Registry
Search, concerning any of the Opinion Documents or the parties thereto.
A-6
SCHEDULE 2
ASSUMPTIONS
For the purposes of this opinion, we have assumed:
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1.
|
all documents submitted to us as originals are authentic and complete;
|
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2.
|
all documents submitted to us as copies, whether in physical or electronic form, conform to authentic,
complete originals and, where a document has been examined by us in draft or specimen form, it will be or has been executed in
the form of that draft or specimen;
|
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3.
|
all signatures (whether in physical or electronic form), stamps and seals on all documents that
we reviewed are genuine and the person who affixed any signature (whether in physical or electronic form) to any document is the
person whose signature it purports to be or a person who had the authority of the person whose signature it purports to be to do
so;
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4.
|
all signatures which purport to have been attested were made in the presence of the purported witness.
Each of the Opinion Documents and the Notes has been signed by a person or persons identified in the Board Minutes or the Committee
Minutes of the Issuer as a prospective signatory of that Opinion Document or of the Notes. Each signatory for whom an office or
position or special authority is specified by his or her signature does in fact hold the specified office or position or special
authority;
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5.
|
each of the Issue Documents is valid and binding on each party to it under the laws of the State
of New York by which each of the Issue Documents is expressed to be governed, and that the words and phrases used in each of the
Issue Documents have the same meaning and effect as they would have if it were governed by English law;
|
|
|
6.
|
the capacity, power and authority to execute, deliver and perform each of the Opinion Documents
by or on behalf of each of the parties (other than the Issuer) thereto;
|
|
|
7.
|
the Notes have been duly authenticated and issued in accordance with the provisions of the Opinion
Documents, the name of each holder of a Note has been correctly registered in the register maintained for that purpose;
|
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|
8.
|
each of the Opinion Documents has been duly authorised, executed and delivered
by each of the parties thereto in accordance with all applicable laws (other than, in the case of the Issuer, the laws of England);
|
|
|
9.
|
in any case where the legal adviser of a party to an Issue Document or other
person has attached and released the signature page of such party’s counterpart of that Issue Document, that such legal adviser
or other person had all necessary authority from such party to do so;
|
|
|
10.
|
in relation to the Issuer:
|
A-7
|
|
(a)
|
the certificate of incorporation in the form referred to in paragraph 7(a)
of Schedule 1 to this opinion and each of the certificates of incorporation on change of name in the forms referred to in paragraph
7(b) of Schedule 1 to this opinion and the certificate of incorporation on re-registration as a public limited company referred
to in paragraph 7(c) of Schedule 1 to this opinion are in force on the date hereof;
|
|
|
(b)
|
the articles of association of the Issuer, in the form referred to in paragraph 7(d) of Schedule
1 to this opinion, were in force at the date and time of authorisation and execution of each of the Issue Documents and are in
force on the date hereof;
|
|
|
(c)
|
each of the Board Minutes and the Committee Minutes, in the form referred to
in paragraph 7(e) of Schedule 1 to this opinion, are complete and correct, and that no amendment has been made thereto; and
|
|
|
(d)
|
(i) that the meetings of the board of directors of the Issuer and the meetings of a committee of
the board of directors of the Issuer referred to in the Board Minutes and the Committee Minutes, respectively, were properly constituted
and convened; (ii) that all relevant policies and procedures of the Issuer, including the terms of any delegation of authority
to the committee of the board of directors of the Issuer were complied with; (iii) that a quorum of properly appointed directors
of the Issuer (holding the necessary offices and meeting the other requirements for the purposes of forming a quorum) was present
throughout and that the resolutions referred to therein were properly passed at such meetings and (iv) that all relevant provisions
of the Companies Act 2006 and the articles of association of the Issuer were duly observed; (v) and that such resolutions have
not been amended, revoked or rescinded and are in full force and effect;
|
|
|
11.
|
each of the statements contained in the Officer’s Certificate is true
and correct as at the date hereof;
|
|
|
12.
|
the directors of the Issuer acted in good faith and in accordance with their duties under all applicable
laws and the articles of association of the Issuer in authorising the execution of each of the Issue Documents;
|
|
|
13.
|
the execution and delivery of each of the Issue Documents by the Issuer and
the exercise of its rights and performance of its obligations under each of the Issue Documents will sufficiently benefit, and
are in the interests of, the Issuer;
|
|
|
14.
|
the information revealed by our search of the entries shown on the Companies House Direct online
service on [●], 2020 with respect to the Issuer (the “Company Search”) (i) was accurate in all respects
and has not since the time of such search been altered, and (ii) was complete and included all relevant information which should
properly have been submitted to the Registrar of Companies;
|
|
|
15.
|
the information revealed by the results of a telephone search with the Companies Court
in London of the Central Registry of Winding Up Petitions on [●], 2020 with respect to the Issuer (the “Central
Registry Search”) was accurate in all respects and has not since the time of such enquiry been altered;
|
A-8
|
|
16.
|
no foreign law which may apply with respect to any Issue Document or the transactions
and matters contemplated thereby would be such as to affect any of the conclusions stated herein;
|
|
|
17.
|
all consents, licences, approvals, authorisations, registrations, notices or
filings which are necessary under any applicable laws (other than, in the case of the Issuer, the laws of England) in order to
permit the execution, delivery or performance of each Issue Document, or otherwise in connection therewith, have been made or obtained;
|
|
|
18.
|
each Issue Document was delivered by each party thereto on the date of execution of such agreement
and none of the Issue Documents is subject to any escrow or other similar arrangement;
|
|
|
19.
|
each of the parties to each of the Issue Documents validly authorised the attachment of its signature
page to the final text of each of the Issue Documents to which it is a party;
|
|
|
20.
|
each of the Issue Documents has been performed in accordance with its terms and none of them has
been amended or modified in any way, and there are no other arrangements nor any course of dealings which modify, supersede or
otherwise affect any of the terms thereof, and no unknown facts or circumstances which are not apparent from the face of any of
the Issue Documents which may affect the conclusions in this opinion;
|
|
|
21.
|
none of the parties to any Opinion Document or the Notes is restricted by contract or any other
arrangement binding on it from entering into any of the Opinion Documents to which it is a party or any offer or issue of Notes
in connection therewith and that none of the parties to any of the Opinion Documents or the Notes has entered into any documents
other than those referred to in this opinion or other arrangements which could affect the validity of this opinion;
|
|
|
22.
|
each of the Issue Documents reflects the commercial intentions of the parties thereto and was entered
into in good faith on arm’s length terms, that each party has made its own independent decision to enter into each of the
Issue Documents to which it is a party and that, in respect of any party to any of the Issue Documents and its respective directors,
employees, agents and advisers, there is no bad faith, fraud, coercion, duress or undue influence;
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23.
|
all statements made as to matters of fact and all representations and warranties
given by the respective parties in the documents that we have reviewed were and are true, accurate and complete;
|
|
|
24.
|
each person who is a party to any of the Opinion Documents or otherwise involved in the Transaction
has complied with and will comply with all applicable provisions of Regulation (EU) No. 596/2014 on market abuse (“MAR”),
Regulation (EU) 1129/2017 (the “Prospectus Regulation”), the Financial Services and Markets Act 2000, as amended
(the “FSMA”) and the Financial Services Act 2012 (the “FSA”) and any regulations made under
any of MAR, the Prospectus Regulation, the FSMA and the FSA with respect to anything done or to be done by it in connection with
the Notes, any of the Opinion Documents or the Transaction in, from, or otherwise
|
A-9
involving the United Kingdom
including, without limitation, Article 14 (prohibition of insider dealing etc) and Article 15 (prohibition of market manipulation)
of MAR, section 19 (the general prohibition) and section 21 (restrictions on financial promotion) of the FSMA, and section 89 (misleading
statements), section 90 (misleading impressions) and section 91 (misleading statements etc in relation to benchmarks) of the FSA,
and in particular:
|
|
(a)
|
that each person involved in the Transaction or dealing with the Issuer in connection with the
Transaction which is carrying on, or purporting to carry on, a regulated activity (within the meaning of section 19 of the FSMA)
is an authorised person or exempt person for the purposes of the FSMA;
|
|
|
(b)
|
that each of the Registration Statement and the Prospectus Supplement, including any draft or preliminary
version thereof, and any other invitation or inducement to engage in investment activity (within the meaning of section 21 of the
FSMA) in connection with the Transaction has only been and will only be communicated or caused to be communicated in circumstances
in which there has been and will be no breach of section 21(1) of the FSMA;
|
|
|
(c)
|
that none of the Notes has been or will be offered to the public in the United
Kingdom except in circumstances which do not require the publication of a prospectus pursuant to Part VI of the FSMA, and that
no circumstances have occurred or will occur requiring the submission and publication of a prospectus relating thereto in accordance
with Part VI of the FSMA;
|
|
|
(d)
|
that no advertisement (as defined in the Prospectus Regulation) relating to the Notes has been
or will be issued otherwise than in compliance with the Prospectus Regulation and any regulations made under the Prospectus Regulation;
and
|
|
|
(e)
|
that any act done and any conduct engaged in for the purpose of stabilising the price of the Notes
will be, and has been, done or engaged in in conformity with Article 5 of MAR and any directly applicable EU regulation made under
MAR and the rules made under section 137Q of the FSMA;
|
|
|
25.
|
no Notes will be offered in the European Economic Area or in the United Kingdom to any “retail
investor” within the meaning given to that term in Regulation (EU) No 1286/2014 on key information documents for packaged
retail and insurance-based investment products (PRIIPS);
|
|
|
26.
|
each person who is a party to any of the Issue Documents or is otherwise involved in the Transaction
has complied and will continue to comply with all applicable anti-corruption, anti-money laundering, anti-terrorism, sanctions
and human rights laws and regulations and that the performance and enforcement of each Issue Document is consistent therewith;
|
|
|
27.
|
neither the Notes, nor an interest in the Notes, will be transferred by an instrument of transfer,
and the Notes will not carry the right to subscribe for, convert into or otherwise acquire a share or other security (or an interest
in, or right arising out of, a share or other security);
|
A-10
|
|
28.
|
the Notes constitute loan capital falling within any of paragraphs (a) to (c) (inclusive) of section
78(7) of the Finance Act 1986 and do not carry and will not at any time carry a right to interest the amount of which exceeds a
reasonable commercial return on the nominal amount of the capital, or which falls to be determined to any extent by reference to
the results of, or of any part of, a business or to the value of any property; and
|
|
|
29.
|
the Notes do not carry and will not at any time carry a right on repayment to an amount which exceeds
the nominal amount of the capital and is not reasonably comparable with what is generally repayable (in respect of a similar nominal
amount of capital) under the terms of issue of loan capital listed in the Official List of the Financial Conduct Authority acting
in its capacity as the competent authority for the purposes of Part VI of the FSMA.
|
A-11
SCHEDULE 3
QUALIFICATIONS
Our opinion is subject to the following qualifications:
|
|
1.
|
The Company Search is not capable of revealing conclusively whether or not, inter alia, (i) a winding-up
order has been made or a resolution passed for the winding up of a company; or (ii) an administration order has been made; or (iii)
a receiver, administrative receiver, administrator or liquidator has been appointed; or (iv) a court order has been made under
the Cross Border Insolvency Regulations 2006, since notice of these matters may not be filed with the Registrar of Companies immediately
and, when filed, may not be entered on the electronic records of the relevant company immediately. In addition, the Company Search
is not capable of revealing, prior to the making of the relevant order or the appointment of an administrator otherwise taking
effect, whether or not a winding-up petition or an application for an administration order has been presented or notice of intention
to appoint an administrator under paragraphs 14 or 22 of Schedule B1 to the Insolvency Act 1986 has been filed with the court.
|
|
|
2.
|
The Central Registry Search relates only to the presentation of (i) a petition for the making of
a winding-up order or the making of a winding-up order by the Court; (ii) an application to the High Court of Justice in London
for the making of an administration order and the making by such court of an administration order; and (iii) a notice of intention
to appoint an administrator or a notice of appointment of an administrator filed at the High Court of Justice in London. It is
not capable of revealing conclusively whether or not such a winding-up petition, application for an administration order, notice
of intention or notice of appointment has been presented or winding-up or administration order granted.
|
|
|
3.
|
Except as expressly set out in our opinion above, we express no opinion in respect of the tax treatment
of, or the transactions contemplated by, any of the Issue Documents or any other documentation entered into in connection therewith
or in connection with the Transaction or any other legal issue including (without limitation) whether any of the Issue Documents
or any such other documentation is effective for any commercial, accounting, tax or legal objectives or purposes of the parties
thereto or any other person. We express no opinion on the applicability of Schedule 17 to the Finance Act 2009. We also express
no opinion as to matters of fact.
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4.
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We have not been responsible for verifying whether any statement of fact (including foreign law),
opinion or intention in any documents referred to in this opinion, in any related documents or otherwise in connection with the
Transaction, is accurate, complete or reasonable or that no material facts have been omitted therefrom. We express no opinion as
to whether the Registration Statement or the Prospectus Supplement contains all information it is required to contain.
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5.
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The English courts will not apply New York law in relation to any Issue Document if (i) it is
not pleaded or proved; or (ii) to do so would be contrary to the mandatory rules of English law or New York law, or
manifestly incompatible with English public policy.
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6.
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We express no opinion as to whether or not a foreign court (applying its own conflict of law rules)
will act in accordance with the parties’ agreement as to jurisdiction or choice of law.
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7.
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Article 3(1) of Regulation (EC) No. 593/2008 (“Rome I”) provides that a contract
shall be governed by the law chosen by the parties. Although the express choice of New York law as the governing law of (i) the
Notes Underwriting Agreement, (ii) the Notes Indenture, (iii) the Pricing Agreement and (iv) the Notes is a choice of law within
the terms of Article 3(1), Rome I does provide for circumstances where Article 3(1) will not be applicable or could be modified
or overridden. We express no opinion as to the choice of the laws of New York law to govern contractual obligations falling outside
the scope of Rome I. We also express no opinion on the law governing non-contractual obligations.
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8.
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A final judgment of a court sitting in the State of New York (a “Foreign Judgment”)
may only be relied upon as establishing a cause of action in respect of which proceedings may be issued in the English courts,
provided (i) the court sitting in the State of New York (a “Foreign Court”) is recognised by the English court
as having jurisdiction to give the Foreign Judgment and (ii) the Foreign Judgment finally and conclusively on the merits establishes
a debt or definite sum of money between the parties.
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9.
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Enforcement of a Foreign Judgment will not be direct enforcement. In any enforcement proceedings
relating to a Foreign Judgment, (i) the defendant may be able to raise a counterclaim that would have been available to it had
the matter been heard in the English courts and (ii) the Issuer may have defences open to it and enforcement of a Foreign Judgment
may not be permitted in certain circumstances including, without limitation, if the Foreign Judgment was obtained by fraud, enforcement
of the Foreign Judgment would be contrary to public policy of English law, the Foreign Judgment relates to foreign penal or revenue
laws or multiple damages, the Foreign Judgment was obtained in proceedings contrary to natural justice, the Foreign Judgment amounts
to judgment on a matter previously determined by an English court or conflicts with a judgment on the same matter given by a court
other than a Foreign Court, the judgment is given in proceedings brought in breach of an agreement for the settlement of disputes,
or enforcement proceedings are not commenced within six years of the date of such Foreign Judgment.
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10.
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In the event of proceedings being brought in respect of a monetary obligation expressed to be payable
in a currency other than Sterling, any judgment or award may only be given in, or be required to be converted into, Sterling, and
the benefit of a currency conversion or indemnity clause may not be enforced and, with respect to bankruptcy, insolvency, liquidation,
moratorium, reorganisation, reconstruction or similar proceedings, English law may require that all claims or debts are converted
into Sterling at an exchange rate determined at a date related thereto, such as the date of commencement of a winding-up.
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11.
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In certain circumstances, a claimant in an action may be ordered to provide security for costs.
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12.
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Any provision of any of the Issue Documents requiring any person to pay amounts imposed in circumstances
of breach or default (whether expressed by way of penalty,
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A-13
additional interest, liquidated damages or otherwise)
may be unenforceable on the grounds that it is a penalty.
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13.
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Any provision of any agreement or deed which amounts to an indemnity in respect of the costs of
litigation or arbitration or any provision which would involve the enforcement of foreign revenue, public or penal laws or which
would be inconsistent with English public policy may not be given effect.
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14.
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To the extent that any operative provision in any of the Issue Documents is reliant on another
contract or a provision in another contract and such other contract or provision is held to be void or otherwise unenforceable,
then such operative provision would also be unenforceable, to the extent of such reliance.
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15.
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The effectiveness of contractual terms exculpating a party from liabilities or duties otherwise
owed is limited by law.
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16.
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This opinion is subject to all applicable laws relating to bankruptcy, insolvency, liquidation,
administration, voluntary arrangement, scheme of arrangement, moratorium, reorganisation, rescheduling, fraudulent transfer, preference,
transactions at undervalue or other laws of general application relating to or affecting the rights of creditors.
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17.
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A claim pursuant to an indemnity or contribution provision may not be given effect insofar as the
subject matter of such claim relates to penalties imposed under any provision of the FSMA or of the rules made under it, and any
indemnity obligations imposed under any agreement may not be legal, valid, binding or enforceable insofar as they relate to fines
or penalties arising out of matters of civil or criminal liability.
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18.
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Any provision of any of the Issue Documents which constitutes, or purports to constitute, a restriction
on the exercise of any statutory power by any party to any of the Issue Documents or any other person may be ineffective.
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19.
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We express no opinion on whether a right of set-off against contingent, unascertained or unmatured
obligations would be effective.
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20.
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We express no opinion on whether any Issue Document may result in the breach of any restrictions
imposed on any of the parties by its constitutional documents but, in the case of the Issuer, without prejudice to paragraph 4
(No Violation) of our opinion or by any instrument to which any such person is a party or by which it may be bound.
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21.
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Legislation, treasury rules and other laws and regulations in England and Wales restrict or prohibit
payments, transactions and dealings with assets and individuals or entities having a proscribed connection with certain countries
or subject to international sanctions or associated with terrorism.
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22.
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The laws of another country which cannot under the laws of the relevant country be derogated from
by contract may be applied, regardless of the fact that the parties have chosen the laws of a country other than the relevant country
as the applicable law, where all the other elements pertaining to the situation are connected to the relevant country.
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A-14
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23.
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We express no opinion as to whether any United Kingdom stamp duty or stamp duty reserve tax is
required to be paid on or in relation to any assignment or other transfer of any right or interest under any Opinion Document,
to a person not originally a party thereto. Other than opinion 9 (Certain United Kingdom Tax Considerations) and opinion 10 (Stamp
duties), we express no opinion on any aspect of United Kingdom taxation.
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24.
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Any undertaking or indemnity given in relation to United Kingdom stamp duty may be void under section
117 of the Stamp Act 1891.
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25.
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The term “filing” as used in paragraph 5 of this opinion shall not be taken to refer
to any filings which could be said to be required as a result of provisions of United Kingdom tax law which may require the reporting
of information to the relevant tax authorities in certain circumstances. Without prejudice to the generality of the prior sentence,
the term “filing” shall exclude any obligations that may arise under or in connection with any of: Part 7 of the Finance
Act 2004, Schedule 11A to the Value Added Tax Act 1994, section 18B of the Taxes Management Act 1970, Schedule 23 to the Finance
Act 2011, the Reporting of Savings Income Information Regulations 2003 (S.I. 2003/3297) and any regulations made in exercise of
the powers conferred by sections 135 or 136 of the Finance Act 2002, section 222 of the Finance Act 2013 or section 84 of the Finance
Act 2019.
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A-15
EXHIBIT B
[Letterhead of Smith & Nephew plc]
BofA Securities, Inc.
One Bryant Park
New York, New York 10036
United States of America
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
United States of America
As Representatives of the
several
Underwriters named in
Schedule I to
the Pricing
Agreement
[●], 2020
Dear Ladies and Gentlemen
I am Chief Legal and Compliance
Officer for Smith & Nephew plc (the Company) and, as such, I am familiar with its affairs.
Reference is made to the Underwriting
Agreement dated [●], 2020 (the Shelf Underwriting Agreement) and the related Pricing Agreement dated [●],
2020 among the Company, and you, as Underwriters (the Pricing Agreement, and together with the Shelf Underwriting
Agreement, referred to as the Underwriting Agreement). Words used as defined terms in this letter shall have the
same meaning as that given to them in the Underwriting Agreement.
In connection with the Pricing
Disclosure Package, the Prospectus and the Registration Statement, I give my opinion as follows:
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i.
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To the best of my knowledge, after due inquiry, and other than as set forth in the Pricing Disclosure
Package and the Prospectus, there are no material legal or governmental proceedings pending or threatened to which the Company
or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject that are
required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus and are not so described
and there are no statutes or regulations that are required to be described in the Registration Statement, the Pricing Disclosure
Package or the Prospectus and are not so described.
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B-1
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ii.
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The issue and sale of the Designated Securities and the compliance by the Company with all of the
provisions of the Indenture and the Underwriting Agreement and the consummation by the Company of the transactions contemplated
therein will not contravene any of the terms or provisions of any indenture, mortgage, deed of trust, loan agreement or other similar
agreement or instrument known to me to which the Company is a party or by which the Company is bound, except for such contraventions
which would not affect the validity or binding nature of the Designated Securities or have a material adverse effect on the financial
position, shareholders’ equity or results of operations of the Company and its consolidated subsidiaries considered as a
whole.
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In giving this opinion, I have
made no investigation of the laws of any country other than England and this opinion is confined to matters of English law and,
as to all matters governed by the laws of the United States and the State of New York, this opinion is given in reliance upon,
and is subject to the qualifications set forth in, the opinion required by Section [8(d)] of the Underwriting Agreement.
[The rest of this page has been intentionally left
blank.]
B-2
Yours faithfully
Catheryn O’Rourke
[Signature Page to Company Opinion]
B-3
EXHIBIT C
[•], 2020
BofA Securities, Inc.
One Bryant Park
New York, New York 10036
United States of America
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
United States of America
As Representatives of the
several
Underwriters named in Schedule I to the
Pricing Agreement
Ladies and Gentlemen:
We have acted as special United States
counsel for Smith & Nephew plc, a public limited company organized under the laws of England and Wales (the “Company”),
in connection with the Underwriting Agreement dated [•], 2020 (the “Shelf Underwriting Agreement”) and
the Pricing Agreement dated [•], 2020, each with you and the other several Underwriters named in Schedule I thereto (the “Pricing
Agreement” and, together with the Shelf Underwriting Agreement, the “Underwriting Agreement”), under
which you and such other Underwriters have severally agreed to purchase from the Company US$[•] aggregate principal amount
of the Company’s [•]% Notes due 20[•] (the “Securities”). The Securities are to be issued pursuant
to the provisions of the Indenture dated as of [•], 2020 (the “Indenture”) between the Company and The
Bank of New York Mellon, London Branch, as trustee, (the “Trustee”).
We have examined originals or copies of
such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable
for the purpose of rendering this opinion.
We have also participated in the preparation
of the registration statement of the Company on Form F-3ASR (File No. 333-249255) (other than the documents incorporated by reference
therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”)
pursuant to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration
of securities (the “Shelf Securities”) to be issued from time to time by the Company and have participated
in the preparation of the preliminary prospectus supplement dated [•], 2020 relating to the Securities (the “Preliminary
Prospectus Supplement”), the pricing term sheet set forth in Schedule [V] to the Pricing Agreement dated [•], 2020
relating to the Securities (the “Pricing Term Sheet”) and the prospectus supplement dated [•], 2020 relating
to the Securities (the “Prospectus Supplement”), and have reviewed the Incorporated Documents. The registration
statement became effective under the Act and the Indenture qualified under the Trust Indenture Act of 1939, as amended, upon the
filing of
C-1
the registration statement with the Commission
on [•], 2020 pursuant to Rule 462(e) under the Act. The registration statement at the date of the Underwriting Agreement,
including the Incorporated Documents and the information deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430B under the Act, is hereinafter referred to as the “Registration Statement,” and the related
prospectus (including the Incorporated Documents) dated [•], 2020 relating to the Shelf Securities is hereinafter referred
to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the Preliminary Prospectus Supplement,
together with the Pricing Term Sheet, are hereinafter referred to as the “Disclosure Package.” The Basic Prospectus,
as supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Securities (or in the form first
made available by the Company to the Underwriters to meet requests of purchasers of the Securities under Rule 173 under the Act),
is hereinafter referred to as the “Prospectus.”
In rendering the opinions expressed herein,
we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic
and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all documents filed
with or submitted to the Commission through its Electronic Data Gathering, Analysis and Retrieval (“EDGAR”)
system (except for required EDGAR formatting changes) conform to the versions of such documents reviewed by us prior to such formatting,
(iv) all signatures on all documents that we reviewed are genuine, (v) all natural persons executing documents had and have the
legal capacity to do so, (vi) all statements in certificates of public officials and officers of the Company that we reviewed were
and are accurate and (vii) all representations made by the Company as to matters of fact in the documents that we reviewed or otherwise
made to us were and are accurate.
Based upon the foregoing, and subject to
the additional assumptions and qualifications set forth below, we are of the opinion that:
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1.
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Assuming that the Underwriting Agreement has been duly authorized, executed and delivered by the
Company insofar as English law is concerned, the Underwriting Agreement has been duly executed and delivered by the Company.
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2.
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Assuming that the Indenture has been duly authorized, executed and delivered by the Company insofar
as English law is concerned, the Indenture has been duly executed and delivered by the Company, and the Indenture is a valid and
binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability,
and may be subject to possible judicial or regulatory actions giving effect to governmental actions or foreign laws affecting creditors’
rights, provided that we express no opinion as to the validity, legally binding effect or enforceability of any provision that
permits holders to collect any portion of stated principal amount upon acceleration of the Securities to the extent determined
to constitute unearned interest.
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3.
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Assuming that the Securities have been duly authorized, executed and delivered by the Company insofar
as English law is concerned, the Securities are executed and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, will be valid and
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C-2
binding obligations of the Company,
enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’
rights generally, concepts of reasonableness and equitable principles of general applicability, and may be subject to possible
judicial or regulatory actions giving effect to governmental actions or foreign laws affecting creditors' rights, and will be entitled
to the benefits of the Indenture pursuant to which the Securities are to be issued, provided that we express no opinion as to the
validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal
amount upon acceleration of the Securities to the extent determined to constitute unearned interest.
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4.
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Assuming that each of the Underwriting Agreement and the Indenture has been duly authorized, executed
and delivered by the Company insofar as English law is concerned, under the laws of the State of New York relating to personal
jurisdiction, the Company has, pursuant to Section [19] of the Underwriting Agreement and Section [10.11] of the Indenture, validly
and irrevocably submitted to the non-exclusive personal jurisdiction of any state or United States federal court located in the
Borough of Manhattan, the City of New York, New York (each a “New York Court”) in any action arising out of
or relating to the Indenture and the Underwriting Agreement or the transactions contemplated thereby, has validly and irrevocably
waived to the fullest extent it may effectively do so any objection to the venue of a proceeding in any such New York Court, and
has validly and irrevocably appointed Smith & Nephew Inc. as its authorized agent for the purpose described in Section [19]
of the Underwriting Agreement and Section [10.11] of the Indenture; and service of process effected on such agent in the manner
set forth in Section [19] of the Underwriting Agreement and Section [10.11] of the Indenture will be effective to confer valid
personal jurisdiction on the Company.
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5.
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The Company is not, and after giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Disclosure Package and the Prospectus will not be, required to register
as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
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6.
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The execution and delivery by the Company of, and the performance by the Company of its obligations
under, the Underwriting Agreement, the Indenture and the Securities (collectively, the “Documents”) will not
contravene any provision of the statutory laws of the State of New York or any federal law of the United States of America that
in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated
thereby, provided that we express no opinion as to federal or state securities laws.
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7.
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No consent, approval, authorization, or order of, or qualification with, any governmental body
or agency under the laws of the State of New York or any federal law of the United States of America that in our experience is
normally applicable to general business corporations in relation to transactions of the type contemplated by the Documents is required
for the execution, delivery and performance by the Company of its obligations under the Documents, except such as may be required
under federal or state securities or Blue Sky laws as to which we express no opinion.
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We have considered the statements included
in the Disclosure Package under the captions “Description of Notes” and “Description of Debt Securities”,
as supplemented by the information set forth in the Pricing Term Sheet, and in the Prospectus under the captions
C-3
“Description of Notes” and
“Description of Debt Securities” insofar as they summarize provisions of the Indenture and the Securities. In our opinion,
such statements fairly summarize these provisions in all material respects. The statements included in the Disclosure Package and
the Prospectus under the caption “Certain United Kingdom and United States Federal Tax Considerations—United States
Federal Income Taxation”, insofar as they purport to describe provisions of U.S. federal income tax laws or legal conclusions
with respect thereto, in our opinion fairly and accurately summarize the matters referred to therein in all material respects.
In rendering the opinions in paragraphs
(1), (2), (3) and (4) above, we have assumed that each party to the Documents has been duly incorporated and is validly existing
and, where applicable, in good standing under the laws of the jurisdiction of its organization. In addition, we have assumed that
(i) the execution, delivery and performance by each party thereto of each Document to which it is a party (a) are within its corporate
powers, (b) do not contravene, or constitute a default under, the certificate of incorporation or bylaws or other constitutive
documents of such party, (c) require no action by or in respect of, or filing with, any governmental body, agency or official and
(d) do not contravene, or constitute a default under, any provision of applicable law or regulation or any judgment, injunction,
order or decree or any agreement or other instrument binding upon such party, provided that we make no such assumption to the extent
that we have specifically opined as to such matters with respect to the Company, and (ii) each Document (other than the Underwriting
Agreement) is a valid, binding and enforceable agreement of each party thereto (other than as expressly covered above in respect
of the Company).
We are members of the Bar of the State
of New York, and the foregoing opinion is limited to the laws of the State of New York and the federal laws of the United States
of America, except that we express no opinion as to any law, rule or regulation that is applicable to the Company or the Documents
or the transactions contemplated thereby solely because such law, rule or regulation is part of a regulatory regime applicable
to any party to any of the Documents or any of its affiliates due to the specific assets or business of such party or such affiliate.
With respect to all matters of English
law, you have received, and we understand that you are relying upon, the separate opinion of Davis Polk & Wardwell London LLP
and the opinion of the Chief Legal and Compliance Officer of the Company, delivered pursuant to Section [8(c)] and Section [8(d)],
respectively, of the Underwriting Agreement.
This opinion is rendered solely to you
and the other several Underwriters in connection with the Underwriting Agreement. This opinion may not be relied upon by you or
the other several Underwriters for any other purpose or relied upon by any other person (including any person acquiring Securities
from the several Underwriters) or furnished to any other person without our prior written consent. This opinion may, however, without
our further written consent, be used and, if necessary, furnished, where it is reasonable to do so and without prior notice to
us (to the extent notice is impracticable) (i) for the purpose of responding to requests to review the opinion by governmental,
regulatory or judicial authorities having competent jurisdiction over the relevant Underwriter and (ii) in connection with the
defense of any legal or regulatory proceeding or investigation arising out of the offer and sale of the Securities.
C-4
Very truly yours,
C-5
[•], 2020
BofA Securities, Inc.
One Bryant Park
New York, New York 10036
United States of America
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
United States of America
As Representatives of the
several
Underwriters named in Schedule I to
the Pricing Agreement
Ladies and Gentlemen:
We have acted as special United
States counsel for Smith & Nephew plc, a public limited company organized under the laws of England and Wales (the
“Company”), in connection with the Underwriting Agreement dated [•], 2020 (the “Shelf
Underwriting Agreement”) and the Pricing Agreement dated [•], 2020, each with you and the other several
Underwriters named in Schedule I thereto (the “Pricing Agreement” and, together with the Shelf
Underwriting Agreement, the “Underwriting Agreement”), under which you and such other Underwriters have
severally agreed to purchase from the Company US$[ •] aggregate principal amount of the Company’s [•]% Notes
due 20[•] (the “Securities”). The Securities are to be issued pursuant to the provisions of the
Indenture dated as of [ •], 2020 (the “Indenture”) between the Company and The Bank of New York
Mellon, London Branch, as trustee, (the “Trustee”).
We have also participated in the preparation
of the registration statement of the Company on Form F-3ASR (File No. 333-249255) (other than the documents incorporated by reference
therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration
of securities (the “Shelf Securities”) to be issued from time to time by the Company, and have participated
in the preparation of the preliminary prospectus supplement dated [•], 2020 (the “Preliminary Prospectus Supplement”)
relating to the Securities, the free-writing prospectus dated [•], 2020 relating to the Securities and the prospectus supplement
dated [•], 2020 relating to the Securities (the “Prospectus Supplement”), and have reviewed the Incorporated
Documents. The registration statement became effective under the Act and the Indenture qualified under the Trust Indenture Act
of 1939, as amended, upon the filing of the registration statement with the Commission on [•], 2020 pursuant to Rule 462(e)
under the Act. The registration statement at the date of the Underwriting Agreement, including the Incorporated Documents and the
information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is
hereinafter referred to as the “Registration Statement,” and the related prospectus (including the Incorporated
Documents) dated [•], 2020 relating to the Shelf Securities is hereinafter referred to as the “Basic Prospectus.”
The Basic Prospectus, as supplemented by
C-6
the Preliminary Prospectus Supplement,
together with the free writing prospectus set forth in Schedule [V] to the Pricing Agreement, are hereinafter referred to as the
“Disclosure Package.” The Basic Prospectus, as supplemented by the Prospectus Supplement, in the form first
used to confirm sales of the Securities (or in the form first made available by the Company to the Underwriters to meet requests
of purchasers of the Securities under Rule 173 under the Act), is hereinafter referred to as the “Prospectus.”
We have, without independent inquiry or
investigation, assumed that all documents filed with or submitted to the Commission through its Electronic Data Gathering, Analysis
and Retrieval (“EDGAR”) system (except for required EDGAR formatting changes) conform to the versions of such
documents reviewed by us prior to such formatting.
The primary purpose of our professional
engagement was not to establish or confirm factual matters or financial, accounting or quantitative information. Furthermore, many
determinations involved in the preparation of the Registration Statement, the Disclosure Package and the Prospectus are of a wholly
or partially non-legal character or relate to legal matters outside the scope of our opinion separately delivered to you today
in respect of certain matters under the laws of the State of New York and the federal laws of the United States of America. As
a result, we are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Disclosure Package or the Prospectus, and we have not ourselves checked the accuracy,
completeness or fairness of, or otherwise verified, the information furnished in such documents (except to the extent expressly
set forth in our opinion letter separately delivered to you today as to statements included in the Disclosure Package and the Prospectus
under the captions “Description of Notes”, “Description of Debt Securities” and “Certain United Kingdom
and United States Federal Tax Considerations—United States Federal Income Taxation”). However, in the course of our
acting as counsel to the Company in connection with the review of the Registration Statement, the Disclosure Package and the Prospectus,
we have generally reviewed and discussed with your representatives and your counsel and with certain officers and employees of,
and independent public accountants for, the Company the information furnished, whether or not subject to our check and verification.
We have also reviewed and relied upon certain corporate records and documents, letters from counsel and accountants and oral and
written statements of officers and other representatives of the Company and others as to the existence and consequence of certain
factual and other matters.
On the basis of the information gained
in the course of the performance of the services rendered above, but without independent check or verification except as stated
above:
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(i)
|
the Registration Statement and the Prospectus appear on their face to be appropriately responsive
in all material respects to the requirements of the Act and the applicable rules and regulations of the Commission thereunder;
and
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(ii)
|
nothing has come to our attention that causes us to believe that, insofar as relevant to the offering
of the Securities:
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(a)
|
on the date of the Underwriting Agreement, the Registration Statement contained any untrue statement of a material fact or
omitted to state a material
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C-7
fact required to be stated therein or necessary to make
the statements therein not misleading,
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(b)
|
at [•] [A.M./P.M.] New York City time on [•], 2020, the Disclosure Package contained
any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or
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(c)
|
the Prospectus as of the date of the Underwriting Agreement or as of the date hereof contained
or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
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In providing this letter to you and the
other several Underwriters, we have not been called to pass upon, and we express no view regarding, the financial statements or
financial schedules or other financial or accounting data included in the Registration Statement, the Disclosure Package or the
Prospectus. In addition, we express no view as to the conveyance of the Disclosure Package or the information contained therein
to investors.
This letter is delivered solely to you
and the other several Underwriters in connection with the Underwriting Agreement. This letter may not be relied upon by you or
the other several Underwriters for any other purpose or relied upon by any other person (including any person acquiring Securities
from the several Underwriters) or furnished to any other person without our prior written consent. This letter may, however, without
our further written consent, be used and, if necessary, furnished, where it is reasonable to do so and without prior notice to
us (to the extent notice is impracticable) (i) for the purpose of responding to requests to review the letter by governmental,
regulatory or judicial authorities having competent jurisdiction over the relevant Underwriter and (ii) in connection with the
defense of any legal or regulatory proceeding or investigation arising out of the offer and sale of the Securities.
Very truly yours,
C-8
Exhibit 4.1
Smith & Nephew plc, as Issuer
and
The Bank of New York Mellon, London Branch, as Trustee
Indenture
Dated as of October 14, 2020
SMITH & NEPHEW PLC
Reconciliation and tie between Trust Indenture
Act of 1939, as amended by the Trust Indenture Reform Act of 1990, and Indenture, dated October 14,
2020.
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Trust Indenture
Act Section
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Indenture Section
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ss.310(a)(1)
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5.08
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(a)(2)
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5.08
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(a)(3)
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Not Applicable
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(a)(4)
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Not Applicable
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(b)
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5.09
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(c)
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Not Applicable
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ss.311(a)
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5.05
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(b)
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5.05
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(c)
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Not Applicable
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ss.312(a)
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3.07
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(b)
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3.08
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(c)
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3.08
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ss.313(a)
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3.12
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(b)
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3.12
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(c)
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3.12
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(d)
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3.12
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ss.314(a)
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3.11
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(b)
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Not Applicable
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(c)(1)
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3.03/10.05
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(c)(2)
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3.03/10.05
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(c)(3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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3.03/10.05
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(f)
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Not Applicable
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ss.315(a)
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5.01
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(b)
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4.11
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(c)
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5.01
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(d)(1)
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5.01
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(d)(2)
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5.01
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(d)(3)
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5.01
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(e)
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5.01
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ss.316(a)(1)(A)
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4.09
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(a)(1)(B)
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4.10
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(a)(2)
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Not Applicable
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(b)
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4.07
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(b)
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6.02
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ss.317(a)(1)
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4.02
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(a)(2)
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4.02
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(b)
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3.05
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ss.318(a)
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10.07
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NOTE: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
TABLE OF CONTENTS
____________________
Page
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Article 1
Definitions
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Section 1.01. Certain Terms Defined
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1
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Article 2
Securities
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Section 2.01. Forms Generally
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8
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Section 2.02. Form of Global Security.
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8
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Section 2.03. Form of Registered Security.
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20
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Section 2.04. Form of Coupon.
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31
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Section 2.05. Form of Legend for Global Registered Securities.
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33
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Section 2.06. Form of Trustee’s Certificate of Authentication
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33
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Section 2.07. Amount Unlimited; Issuable in Series
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34
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Section 2.08. Authentication and Delivery of Securities
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35
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Section 2.09. Execution of Securities
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37
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Section 2.10. Certificate of Authentication
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37
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Section 2.11. Denomination and Date of Securities; Payments of Interest
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37
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Section 2.12. Registration, Transfer And Exchange.
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38
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Section 2.13. Mutilated, Defaced, Destroyed, Lost and Stolen Securities
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42
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Section 2.14. Cancellation of Securities; Destruction Thereof
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43
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Section 2.15. Temporary Securities
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43
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Section 2.16. CUSIP Numbers
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44
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Article 3
Covenants Of The Issuer And The Trustee
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Section 3.01. Payment of Principal and Interest
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44
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Section 3.02. Additional Amounts
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44
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Section 3.03. Offices for Payments, etc.
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46
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Section 3.04. Appointment to Fill a Vacancy in Office of Trustee
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47
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Section 3.05. Payment Agents
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47
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Section 3.06. Compliance Certificates from the Issuer
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48
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Section 3.07. Securityholders Lists
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48
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Section 3.08. Preservation of Information; Communication to Holders
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49
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Section 3.09. Limitation on Liens
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49
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Section 3.10. Limitation on Sale and Lease-back.
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52
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Section 3.11. Reports by the Issuer
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53
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Section 3.12. Reports by the Trustee
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53
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Article 4
Remedies Of The Trustee And Securityholders On Event Of Default
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Section 4.01. Event of Default Defined; Acceleration of Maturity; Waiver of Default
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53
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Section 4.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt
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56
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Section 4.03. Application of Proceeds
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59
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Section 4.04. Suits for Enforcement
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60
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Section 4.05. Restoration of Rights on Abandonment of Proceedings
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60
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Section 4.06. Limitations on suits by Securityholders
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60
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Section 4.07. Unconditional Right of Securityholders to Institute Certain Suits
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61
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Section 4.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default
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61
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Section 4.09. Control by Securityholders
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61
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Section 4.10. Waiver of Past Defaults
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62
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Section 4.11. Trustee to Give Notice of Default, but May Withhold in Certain Circumstances
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62
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Section 4.12. Right of Court to Require Filing of Undertaking to Pay Costs
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63
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Article 5
Concerning The Trustee.
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Section 5.01. Duties and Responsibilities of the Trustee; During Default; Prior to Default.
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63
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Section 5.02. Certain Rights of the Trustee
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65
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Section 5.03. Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof
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67
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Section 5.04. Trustee and Agents May Hold Securities; Collections, Etc
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68
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Section 5.05. Moneys Held by Trustee
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68
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Section 5.06. Compensation and Indemnification of Trustee and its Prior Claim
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68
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Section 5.07. Right of Trustee to Rely on Officers’ Certificate, Etc
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69
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Section 5.08. Persons Eligible for Appointment as Trustee
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69
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Section 5.09. Resignation and Removal; Appointment of Successor Trustee
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70
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Section 5.10. Acceptance of Appointment by Successor Trustee
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71
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Section 5.11. Merger, Conversion, Consolidation or Succession to Business of Trustee
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72
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Article 6
Concerning The Securityholders
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Section 6.01. Evidence of Action Taken by Securityholders
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73
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Section 6.02. Proof of Execution of Instruments and of Holding of Securities; Record Date
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73
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Section 6.03. Holders to be Treated as Owners
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74
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Section 6.04. Securities Owned by Issuer Deemed Not Outstanding
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74
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Section 6.05. Right of Revocation of Action Taken
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75
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Article 7
Supplemental Indentures
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Section 7.01. Supplemental Indentures Without Consent of Securityholders
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75
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Section 7.02. Supplemental Indentures with Consent of Securityholders
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77
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Section 7.03. Effect of Supplemental Indentures
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78
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Section 7.04. Documents to be Given to Trustee
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79
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Section 7.05. Notation on Securities in Respect of Supplemental Indentures
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79
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Section 7.06. Conformity with Trust Indenture Act
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79
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Article 8
Consolidation, Merger, Sale Or Conveyance
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Section 8.01. Issuer May Consolidate, Etc., on Certain Terms
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79
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Section 8.02. Securities to be Secured in Certain Events
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81
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Section 8.03. Successor Corporation to be Substituted for Issuer
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81
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Section 8.04. Opinion of Counsel to Trustee
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82
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Article 9
Satisfaction And Discharge Of Indenture; Unclaimed Moneys
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Section 9.01. Satisfaction and Discharge of Indenture
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82
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Section 9.02. Application by Trustee of Funds Deposited for Payment of Securities
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83
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Section 9.03. Defeasance upon Deposit of Moneys or Government Obligations
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83
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Section 9.04. Repayment of Moneys Held by Paying Agent
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85
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Section 9.05. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years
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85
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Section 9.06. Reinstatement
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85
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Article 10
Miscellaneous Provisions
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Section 10.01. Incorporators, Stockholders, Officers and Directors of Issuer Exempt from Individual Liability
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86
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Section 10.02. Provisions of Indenture for the Sole Benefit of Parties and Securityholders
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86
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Section 10.03. Successors and Assigns of Issuer Bound by Indenture
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86
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Section 10.04. Notices and Demands on Issuer, Trustee and Securityholders
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86
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Section 10.05. Officers’ Certificates and Opinions of Counsel; Statements to be Contained Therein
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87
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Section 10.06. Payments Due on Saturdays, Sundays and Holidays
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89
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Section 10.07. Conflict of any Provision of Indenture with Trust Indenture Act of 1939
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89
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Section 10.08. New York Law to Govern
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89
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Section 10.09. Counterparts
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89
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Section 10.10. Effect of Headings
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90
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Section 10.11. Submission to Jurisdiction
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90
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Section 10.12. Waiver of Jury Trial
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90
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Section 10.13. Severability
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90
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Article 11
Redemption Of Securities And Sinking Funds
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Section 11.01. Applicability of Article
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91
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Section 11.02. Notice of Redemption; Partial Redemptions
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91
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Section 11.03. Payment of Securities Called for Redemption
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92
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Section 11.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption
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93
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Section 11.05. Mandatory and Optional Sinking Funds
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93
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Section 11.06. Optional Redemption Due to Changes in Tax Treatment
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95
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THIS INDENTURE, dated as of October 14,
2020, between Smith & Nephew plc, an English public limited company (the “Issuer”), and The Bank of New York Mellon,
London Branch, as trustee (the “Trustee”),
W I T N E S S E T H:
WHEREAS, the Issuer may issue from time
to time in one or more series its unsecured debentures, notes or other evidences of indebtedness (the “Securities”)
represented by one or more Global Securities (as defined herein) represented by definitive Securities in registered form without
coupons for payments, up to such principal amount or amounts as may from time to time be authorized in accordance with the terms
of this Indenture and to provide, among other things, for the authentication, delivery and administration thereof, the Issuer has
duly authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this
Indenture a valid indenture and agreement according to its terms have been done;
NOW, THEREFORE, in consideration of the
premises and the purchases of the Securities by the Holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective Holders (as defined herein) from time to time of the Securities as follows:
Article
1
Definitions
Section 1.01. Certain Terms Defined.
The following terms (except as otherwise expressly provided or unless the context otherwise clearly requires) for all purposes
of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01. All
other terms used in this Indenture that are defined in the Trust Indenture Act (as defined herein) or the definitions of which
in the Securities Act of 1933, as amended (the “Securities Act”) are referred to in the Trust Indenture Act, including
terms defined therein by reference to the Securities Act (except as herein otherwise expressly provided or unless the context otherwise
clearly requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in
force at the date of this Indenture. All accounting terms used herein and not expressly defined shall have the meanings assigned
to such terms in accordance with generally accepted accounting principles, and the term “generally accepted accounting principles”
means such accounting principles as are applicable to the Person (as defined herein) in question and generally accepted at the
time of any computation. The words “herein”, “hereof” and “hereunder” and other words of similar
import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. The terms defined in
this Article 1 have the meanings assigned to them in this Article 1 and include the plural as well as the singular.
“Agent Member” means a member
of, or participant in, a Depository.
“Attributable Debt” in respect
of a Sale and Lease-Back Transaction means, as of any particular time, the present value (discounted at a rate equal to the weighted
average of the rate of interest of the Securities Outstanding hereunder which in the case of Original Issue Discount Securities
shall be the Yield to Maturity of such Securities (such average being weighted by the principal amount of the Securities of each
series Outstanding or, in the case of Original Issue Discount Securities, such amount to be determined as provided in the definition
of “Outstanding”) compounded semi-annually) of the obligation of the Issuer or a Restricted Subsidiary for rental payments
during the remaining term of any lease in respect of a Sale and Lease-Back Transaction, including, in each case, any period for
which any such lease has been extended. Such rental payments shall not include amounts payable by or on behalf of the lessee for
maintenance and repairs, insurance, taxes, assessments, water rates and similar charges.
“Board of Directors” when used
with reference to the Issuer, means either the Board of Directors or any committee or member of such Board duly authorized to act
hereunder of the Issuer.
“Board Resolution”, when used
with reference to the Issuer, means a copy of one or more resolutions, certified by the Secretary or an Assistant Secretary of
the Issuer, to have been duly adopted by the Board of Directors of the Issuer or a committee designated by the Board of Directors
of the Issuer and to be in full force and effect, and delivered to the Trustee.
“Business Day” means, with respect
to any Security, a day other than a Saturday or Sunday that (a) in the city (or in any of the cities, if more than one) in which
amounts are payable, as specified in the form of such Security, is not a day on which banking institutions are authorized by law,
regulation or executive order to close and (b) if the Security is denominated in a currency other than U.S. dollars (i) is not
a day on which banking institutions are required by law or regulation to close in the financial center or centers (where applicable)
of the country issuing the currency and (ii) is a day on which banking institutions in such financial center or centers (where
applicable) are carrying out transactions in such currency.
“Commission” means the Securities
and Exchange Commission, as from time to time constituted, created under the Exchange Act (as defined herein), or if at any time
after the execution and delivery of this Indenture such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on such date.
“Company Order” means a written
statement, request or order signed in the name of the Issuer by any director or any other Person duly authorized thereto by Board
Resolution.
“Consolidated Net Tangible Assets”
means the aggregate amount of consolidated total assets of the Issuer, after deducting therefrom (a) all liabilities due within
one year (other than (x) short-term borrowings and (y) long-term debt due within one year) and (b) all goodwill, trade names, trademarks
and patents that have not been developed by the Issuer or its Subsidiaries, and other similar types of intangible assets, as shown
on the audited consolidated balance sheet contained in the latest annual report to shareholders of the Issuer.
“Debt” has the meaning specified
in Section 3.09.
“Depository” means, with respect
to Securities issuable or issued in whole or in part in the form of one or more Global Securities, the Person designated as Depository
by the Issuer pursuant to Section 2.07 hereof which must be a clearing agency registered under the Exchange Act (or a successor
Depository), and if at any time there is more than one such Person, “Depository” as used with respect to the Securities
shall mean the respective Depository with respect to particular Securities.
“Event of Default” means any
event or condition specified as such in Section 4.01.
“Exchange Act” means the U.S.
Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, as amended.
“Global Security” means a global
certificate evidencing all or part of a series of Securities, authenticated and delivered to the Depository and registered in the
name of the Depository or its nominee.
“Government Obligations” means
securities that are (i) direct obligations of the United States of America, the United Kingdom or any government of any member
state of the European Union which has the euro as its currency (“European Government”) for the payment of which its
full faith and credit is pledged or (ii) obligations of an entity controlled or supervised by and acting as an agency or instrumentality
of the United States of America, the United Kingdom or any European Government, the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America, the United Kingdom or any such European Government, as the
case may be, which, in either case under clauses (i) or (ii) 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 government
obligation or specific payment of interest on or principal of any such government obligation held by such custodian for the account
of the holder of a depositary
receipt,
provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the custodian in respect of the government obligation or the specific
payment of interest on or principal of the government obligation evidenced by such depositary receipt.
“Holder”, “Holder of Securities”,
“Securityholder” or other similar terms mean the registered holder of any Security.
“Indenture” means this instrument
as originally executed and delivered or, if amended or supplemented as herein provided, as so amended or supplemented or both,
including, for all purposes of this instrument, any supplemental or amended indenture, the provisions of the Trust Indenture Act
that are deemed to be a part of, and govern this instrument, and any supplemental or amended indenture. The term “Indenture”
shall also include the forms and terms of particular series of Securities established as contemplated hereunder.
“Interest” means, when used
with respect to non-interest bearing Securities, interest payable after maturity.
“Issuer” means Smith & Nephew
plc, an English public limited company and, subject to Article 8, its successors and assigns.
“Officers’ Certificate”
means a certificate delivered by the Issuer to the Trustee and signed by any director or the treasurer or any deputy treasurer
or any assistant treasurer and the secretary or any assistant secretary of the Issuer. Each such certificate shall comply with
Section 314 of the Trust Indenture Act and include the statements provided for in Section 10.05.
“Opinion of Counsel” means an
opinion in writing signed by legal counsel who may be an employee of or counsel to the Issuer and who shall be satisfactory to
the Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture Act and include the statements provided for
in Section 10.05 if and to the extent required hereby.
“original issue date” of any
Security (or portion thereof) means the earlier of (a) the date of such Security or (b) the date of any Security (or portion thereof)
for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution.
“Original Issue Discount Security”
means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof pursuant to Section 4.01.
“Outstanding”, when used with
reference to Securities, shall, subject to the provisions of Section 6.04, mean, as of any particular time, all Securities authenticated
and delivered by the Trustee under this Indenture, except:
(a) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities,
or portions thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Issuer) or shall have been set aside, segregated and held in trust by the
Issuer for the Holders of such Securities (if the Issuer shall act as its own paying agent), provided that if such Securities,
or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and
(c) Securities
in substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 2.08 (except with respect to any such Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a person in whose hands such Security is a legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the
requisite principal amount of Outstanding Securities of any or all series have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, (i) the principal amount of an Original Issue 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 4.01 and (ii) the principal amount
of a security denominated in one or more foreign currencies or currency units shall be the U.S. dollar equivalent determined in
the manner provided or contemplated by Article 1 on the date of original issuance of such Security of the principal amount (or,
in the case of an Original Issue Discount Security, the U.S. dollar equivalent on the date of original issuance of such Security
of the amount determined as provided in (i) above) of such Security.
“Person” means any individual,
corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
“Predecessor Security” of any
particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.13 in exchange for
or in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a mutilated, destroyed, lost or stolen coupon
appertains shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security or the Security to which
the mutilated, destroyed, lost or stolen coupon appertains, as the case may be.
“principal”
whenever used with reference to the Securities or any Security or any portion thereof, shall be deemed to include “and premium,
if any”.
“Principal Property” means any
manufacturing plant or facility or any research facility owned by the Issuer or any Restricted Subsidiary which is located within
the United Kingdom or the United States of America the gross book value (without deduction of any depreciation reserve) of which
on the date as of which the determination is being made exceeds 2% of Consolidated Net Tangible Assets as set forth in the consolidated
financial statements contained in the latest annual report to shareholders of the Issuer, except (i) any such plant or facility
or research facility which, in the opinion of the Board of Directors of the Issuer, is not of material importance to the total
business conducted by the Issuer and its Subsidiaries considered as a whole or (ii) any portion of any such property which, in
the opinion of the Board of Directors of the Issuer, is not of material importance to the use or operation of such property.
“Responsible Officer” when used
with respect to the Trustee means any officer assigned to the Corporate Trust Division (or any successor division) of the Trustee
located at the Trustee Corporate Trust Office, who shall have direct responsibility for the administration of this Indenture, and
for the purposes of Section 4.11 and Section 5.01(c)(ii) shall also include any other officer of the Trustee to whom any corporate
trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
“Restricted Subsidiary” means
any Wholly Owned Subsidiary of the Issuer (i) substantially all the property of which is located within the United Kingdom or the
United States of America and (ii) which owns a Principal Property; provided, however, that the term “Restricted Subsidiary”
shall not include any Wholly Owned Subsidiary which is principally engaged in (x) leasing or in financing installment receivables
or (y) financing the operations of the Issuer and its consolidated Subsidiaries.
“Sale and Lease-Back Transaction”
has the meaning specified in Section 3.10.
“Security” or “Securities”
has the meaning stated in the first recital of this Indenture, or, as the case may be, Securities that have been authenticated
and delivered under this Indenture.
“Security Register” and “Security
Registrar” have the meanings specified in Section 2.12(b).
“Security Registrar Corporate Trust
Office” means the office of the Security Registrar at which the corporate trust business of the Security Registrar shall,
at any particular time, be principally administered, which office is, at the date as of which this Indenture is dated, located
at 240 Greenwich Street, New York, New York 10286, United States of America, or such other address as the
Security
Registrar may designate from time to time by notice to the Issuer, or the principal corporate trust office of any successor Security
Registrar (or such other address as such successor Security Registrar may designate from time to time by notice to the Issuer).
“Subsidiary” means, with respect
to any Person, any corporation at least a majority of the outstanding stock of which having by the terms thereof ordinary voting
power (not dependent upon the happening of a contingency) to elect a majority of the board of directors of such corporation is
at the time owned or controlled, directly or indirectly, by such Person.
“Trustee” means the Person identified
as “Trustee” in the first paragraph hereof and, subject to the provisions of Article 5, shall also include any successor
trustee.
“Trustee Corporate Trust Office”
means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be principally
administered, which office is, at the date as of which this Indenture is dated, located at One Canada Square, London E14 5AL, United
Kingdom, or such other address as the Trustee may designate from time to time by notice to the Issuer, or the principal corporate
trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice
to the Issuer).
“Trust Indenture Act” (except
as otherwise provided in Sections 7.01 and 7.02) means the Trust Indenture Act of 1939, as amended.
“Wholly Owned Subsidiary” means
any corporation of which all of the outstanding stock (other than directors’ qualifying shares, if any) having by the terms
thereof ordinary voting power (not dependent upon the happening of a contingency) to elect the board of directors of such corporation
is at the time owned or controlled, directly or indirectly, by (x) the Issuer, (y) one or more Wholly Owned Subsidiaries or (z)
the Issuer and one or more Wholly Owned Subsidiaries.
“Yield to Maturity” means the
yield to maturity on any series of Original Issue Discount Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and calculated in accordance with either the constant
interest method or such other accepted financial practice as is specified in the terms of such series established pursuant to Section
2.07.
Article
2
Securities
Section 2.01. Forms Generally. The
Securities of each series shall be substantially in such form (not inconsistent with this Indenture) as shall be established by
or pursuant to a resolution of the Board of Directors of the Issuer (and set forth in a Board Resolution and, to the extent established
pursuant to (rather than in) such resolutions, in an Officers’ Certificate detailing such establishment), or in one or more
indentures supplemental hereto, in each case with such insertions, omissions, substitutions and other variations as are required
or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends, not inconsistent
with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto,
or with any rules of any securities exchange or to conform to general usage, all as may be determined by the officers executing
such Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing
such Securities, as evidenced by their execution of such Securities.
Section 2.02. Form of Global Security.
[Form of Face of Global Security]
[Insert any legend required by the Internal
Revenue Code and the regulations thereunder.]
SMITH & NEPHEW PLC
[Title of Security]
No. _______________
CUSIP NO. _____
SMITH & NEPHEW PLC, a public limited
company incorporated under the laws of England and Wales (herein called the “Issuer”, which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to _____________________ [If applicable
– insert – as nominee for [insert name]], or registered assigns upon presentation and surrender of this Security the
principal sum of _________________ on ______________________ [if the Security is to bear interest prior to Maturity, insert -,
and to pay interest thereon from _____________, 20__ or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, semiannually in arrears on ____________ and _____________ in each year] [annually in arrears on __________________
in each year], commencing ______________, 20__, at the rate of ___% per annum, until the principal hereof is paid or made available
for payment [if applicable, insert -; provided that any principal and premium, and any such instalment of interest, which is overdue
shall bear interest at the rate of __% per annum (to the extent that the payment of such interest shall be legally enforceable),
from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand].
[If the Security is not to bear interest
prior to Maturity, insert - The principal of this Security shall not bear interest except in the case of a default in payment of
principal upon acceleration, upon redemption or at Stated Maturity, and in such case the overdue principal and any overdue premium
shall bear interest at the rate of __% per annum (to the extent that the payment of such interest shall be legally enforceable),
from the date such amounts are due until they are paid or made available for payment. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal or premium which is not so paid on demand shall bear interest at
the rate of __% per annum (to the extent that the payment of such interest on interest shall be legally enforceable), from the
date of such demand until the amount so demanded is paid or made available for payment. Interest on overdue interest shall be payable
on demand.]
[The Trustee shall act as Paying Agent with
respect to the Securities of this series.]
[Title to this Security shall pass by delivery.]
Reference is hereby made to the further
provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect
as if set forth at this place.
[All terms used in this Security which are
defined in the Indenture shall have the meanings assigned to them in the Indenture.]
Unless the certificate of authentication
hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an Authenticating Agent, by manual
or pdf or other electronically-imaged (including, without limitation, DocuSign or Adobe Sign) signature of an authorized signatory,
this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused
this instrument to be duly executed manually, electronically or in facsimile.
Dated:
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SMITH & NEPHEW PLC
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By:
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Name:
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Title: Director
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[Form of Reverse of Global Security]
This Security is one of a duly authorized
issue of securities of the Issuer (herein called the “Securities”), issued and to be issued in one or more series under
an Indenture, dated as of ________, 2020 (herein called the “Indenture”, which term shall have the meaning assigned
to it in such instrument), between the Issuer and The Bank of New York Mellon, London Branch, as Trustee (herein called the “Trustee”,
which term includes any other successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement
of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [,limited in aggregate principal amount to U.S.$ [/ €] ________________].
[If applicable, insert – The Securities
of this series are subject to redemption upon not less than [insert minimum notice requirement] nor more than [insert maximum notice
requirement] days’ notice by mail [if applicable, insert – (1) on __________ in any year commencing with the year ______
and ending with the year __________ through operation of the sinking fund for this series at a Redemption Price equal to [insert
formula for determining amount] (with the amount in excess of 100% of the principal amount being additional interest), and (2)]
at any time [if applicable, insert – on or after ___________, 20__], as a whole or in part, at the election of the Issuer,
at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [if applicable, insert –
on or before _________, __%, and if redeemed] during the 12-month period beginning ___________ of the years indicated,
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Year
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Redemption
Price
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Year
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Redemption
Price
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and thereafter at a Redemption Price equal to ____% of the principal
amount, together in the case of any such redemption [if applicable, insert – (whether through operation of the sinking fund
or otherwise)] with accrued interest and any additional amounts due on the Redemption Date, but interest instalments whose Stated
Maturity is on or prior to such Redemption Date will be payable only upon presentation and surrender of this Security (at an office
or agency located in The City and State of New York, United States of America, except as herein provided otherwise).]
[If applicable, insert – The Securities
of this series are subject to redemption upon not less than [insert minimum notice requirement] nor more than [insert maximum notice
requirement] days’ notice by mail (1) on ___________ in
any
year commencing with the year ____ and ending with the year_____, through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set
forth in the table below, and (2) at any time [if applicable, insert – on or after ________, 20__], as a whole or in part,
at the election of the Issuer, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed
as percentages of the principal amount, with the amount in excess of 100% of the principal amount being additional interest) set
forth in the table below: If redeemed during the 12-month period beginning __________ of the years indicated,
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Year
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Redemption
Price
For Redemption Through Operation of the
Sinking Fund
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Redemption
Price
For Redemption Otherwise Than Through
Operation of the
Sinking Fund
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and thereafter at a Redemption Price equal to _______% of the
principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with
accrued interest and any additional amounts due on the Redemption Date, but interest instalments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert – Notwithstanding
the foregoing, the Issuer may not, prior to _____________, redeem any Securities of this series as contemplated by [If applicable,
insert – Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the Issuer (calculated in accordance with generally accepted
financial practice) of less than ______% per annum.]
[If applicable, insert – The sinking
fund for this series provides for the redemption on ______________ in each year beginning with the year ________ and ending with
the year ____________ of [if applicable, insert – not less than U.S.$ [/ €] ______________ (“mandatory sinking
fund”) and not more than U.S.$ [/ €]_______] aggregate principal amount of Securities of this series. Securities of
this series acquired or redeemed by the Issuer otherwise than through [if applicable, insert – mandatory] sinking fund payments
may be credited against subsequent [if applicable, insert – mandatory] sinking fund payments otherwise required to be made
[if applicable, insert – in the inverse order in which they become due].]
[If applicable, insert – The Securities
may be redeemed at the option of the Issuer, in whole but not in part, upon not less than 10 nor more than 60 days’ notice
given as provided in the Indenture, at any time at a Redemption Price equal to the principal amount thereof plus accrued interest
and any additional amounts due on the date fixed for redemption if (a) as a result of a change in or any amendment to the laws
or any regulations or rulings promulgated thereunder of the United Kingdom (or of any political subdivision or taxing authority
thereof or therein) (or in the case of a successor Person to the Issuer of the jurisdiction in which such successor Person is organized
or any political subdivision or taxing authority thereof or therein) affecting taxation or any change in an application or interpretation
of such laws, regulations or rulings, or any change in an application or interpretation of, or any execution of or amendment to,
any treaty or treaties affecting taxation to which the United Kingdom or any political subdivision or taxing authority thereof
or therein (or such other jurisdiction or political subdivision or taxing authority) is a party, which change, amendment application,
interpretation or execution becomes effective on or after _____________ (or, in the case of a successor Person to the Issuer that
is a non-United Kingdom entity, the date on which such successor Person became such pursuant to the applicable provision of the
Indenture) or (b) as a result of any delivery or of any requirement to deliver definitive Registered Securities (having used all
reasonable efforts to avoid having to issue such definitive Registered Securities), (i) the Issuer (or such successor Person) is
or would be required to pay additional amounts with respect to the Securities, on the next succeeding Interest Payment Date as
set forth below or (ii) any Subsidiary of the Issuer is or would be required to deduct or withhold tax on any payment to the Issuer
to enable the Issuer to make any payment of principal or interest in respect of the Securities and, in each case, the payment of
such additional amounts in the case of (i) above or such deduction or withholding in the case of (ii) above cannot be avoided by
the use of any reasonable measures available to the Issuer or the Subsidiary.]
[If applicable, insert – The Securities
may also be redeemed in whole but not in part upon not less than 10 nor more than 60 days’ notice given as provided in the
Indenture at any time at a Redemption Price equal to the principal amount thereof plus accrued interest and any additional amounts
due on the date fixed for redemption if the Person formed by a consolidation of the Issuer or into which the Issuer is merged or
to which the Issuer conveys, transfers or leases all or substantially all of its assets and the assets of its Subsidiaries, taken
as a whole, is required to pay a Holder additional amounts in respect of any tax, assessment or governmental charge imposed on
any such Holder or required to be withheld or deducted from any payment to such Holder as a consequence of such consolidation,
merger, conveyance, transfer or lease.]
[If applicable, insert – the Redemption
Price of the Securities shall be equal to the applicable percentage of the principal amount at Stated Maturity set forth below:
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If
Redemption During the
12-Month Period Commencing
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Redemption
Price
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together with, in each case (except if the Redemption Date shall
be a ________), an amount equal to the applicable Redemption Price multiplied by a fraction the numerator of which is the number
of days from but not including the preceding __________________ to and including the Redemption Date multiplied by the difference
between the Redemption Price applicable during the 12 months beginning on the ________________ following the Redemption Price (or,
in the case of a Redemption Date after _____________, 100%) and the Redemption Price applicable on the Redemption Date and the
denominator of which is the total number of days from but not including the ______________ preceding the Redemption Date to and
including the next succeeding ___________. The Issuer will also pay to each eligible Holder, or make available for payment to each
such Holder, on the Redemption Date any additional interest (as set forth on the face hereof) resulting from the payment of such
Redemption Price.]
[If applicable, insert – The Redemption
Price of the Securities either in the event of certain changes in the tax treatment or in an event of default would include, in
addition to the face amount of the Security, an amount equal to the Original Issue Discount accrued since the issue date. Original
Issue Discount (the difference between the Issue Price and the Principal Amount at Maturity of the Security), in the period during
which a Security remains outstanding, shall accrue at _______% per annum, on a semiannual bond equivalent basis using a 360-day
year composed of 12 30-day months, commencing on the Issue Date of this Security.]
[If applicable, insert – Notice of
redemption will be given by mail to Holders of Securities, not less than 10 nor more than 60 days prior to the date fixed redemption,
all as provided in the Indenture.]
[If the Security is subject to redemption
of any kind, insert – In the event of redemption of this Security in part only, a new Security or Securities of this series
and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert – The Indenture
contains provisions for defeasance at any time of the entire indebtedness on this Security upon compliance by the Issuer with certain
conditions set forth thereon, which provisions apply to this Security.]
[If applicable, insert – Subject to
and upon compliance with the provisions of the Indenture, the Holder of this Security is entitled at his or her option, at any
time after ____________________, to convert this Security into [Describe Securities and conversion mechanics].]
[If applicable, insert – In the event
of conversion of this Security in part only, a new Security or Securities of this series and of like tenor for the unconverted
portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue
Discount Security, insert – If an Event of Default with respect to Securities of this series shall occur and be continuing,
the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount
Security, insert – If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount
of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to – insert [formula for determining the amount]. Upon payment (i) of the amount of
principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the
extent that the payment of such interest shall be legally enforceable), all of the applicable Issuer’s obligations in respect
of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.]
[If not applicable, delete – If any
deduction or withholding for any present or future taxes, levies, duties, assessments, imposts or other governmental charges whatsoever
imposed, assessed, levied or collected by or for the account of the United Kingdom (or any political subdivision or taxing authority
thereof or therein) shall at any time be required by applicable law or regulation of the United Kingdom (or any such political
subdivision or taxing authority) in respect of any amounts to be paid by the Issuer under the Securities, the Issuer will (subject
to what follows) pay to the Holder of this Security, such additional amounts as may be necessary in order that the net amounts
received by such Holder of such Security, after such deduction or withholding, shall be not less than the amounts to which such
Holder would be entitled had such deduction or withholding not been so imposed, assessed, levied or collected; provided, however,
that the Issuer shall not be required to make any payment of additional amounts for or on account of:
(1) any
present or future tax, levy, impost or other governmental charge which would not have been so imposed, assessed, levied or collected
but for the fact that the Holder of the relevant Security (or a fiduciary, settlor, beneficiary, member or shareholder of, or possessor
of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) is or has been a domiciliary, national
or resident of, or engaging or having been engaged in a trade or business or maintaining or having maintained a permanent establishment
or being or having been physically present in, the United Kingdom or any political subdivision or taxing authority thereof or therein
or otherwise having or having had some connection with the United Kingdom or any political subdivision or
taxing
authority thereof or therein other than the holding or ownership of a Security, or the collection of principal of, and interest,
if any, on, or the enforcement of, a Security;
(2) any
present or future tax, levy, impost or other governmental charge which would not have been so imposed, assessed, levied or collected
but for the fact that, where presentation is required, the relevant Security was presented more than 30 days after the date on
which such payment became due or was provided for, whichever is later;
(3) any
estate, inheritance, gift, sale, transfer, personal property or similar tax, levy, impost or other governmental charge;
(4) any
present or future tax, levy, impost or other governmental charge which is payable otherwise than by deduction or withholding from
payments on or in respect of the relevant Security;
(5) any
present or future tax, levy, impost or other governmental charge which would not have been so imposed, assessed, levied, collected
or withheld but for the failure to comply with any request addressed to the Holder for certification, identification or other information
reporting concerning the nationality, residence, identity or connection with the United Kingdom or any political subdivision or
taxing authority thereof or therein of the Holder or beneficial owner of the relevant Security, if compliance is required by treaty
or by statute, regulation or administrative practice of the United Kingdom or any such political subdivision or taxing authority
thereof or therein as a condition to relief or exemption from such tax, levy, impost or other governmental charge (which such Holder
or beneficial owner is legally entitled to provide);
(6) any
present or future tax, levy, impost or other governmental charge which a Holder would have been able to avoid by authorizing the
paying agent to report information in accordance with the procedure laid down by the relevant tax authority or by producing, in
the form requested by the relevant tax authority, a declaration, claim, certificate, document or other evidence establishing exemption
therefrom which has been requested of such Holder and which it is legally entitled to provide;
(7) any
present or future tax, levy, impost or other governmental change imposed by the United States of America or any political subdivision
or taxing authority thereof or therein;
(8) any
present or future tax, levy, impost or other governmental charge imposed, assessed, levied or collected in respect of a payment
under or with respect to a Security to any Holder of the relevant Security that is a fiduciary, partnership or a person other than
the sole beneficial owner of such payment or Security to the extent that the beneficiary or settlor with respect to the fiduciary,
member of that partnership or beneficial owner would not have been entitled to
the
additional amounts or would not have been subject to such tax, levy, impost or charge, had that beneficiary, settlor, member or
beneficial owner been the actual Holder of such Security; or
(9) any
combination of items (1) through (8) above.
nor shall additional amounts be paid in the event that the obligation
to pay additional amounts is the result of the issuance of definitive Registered Securities to a Holder of a Predecessor Security
at such Holder’s request upon the occurrence of an Event of Default and at the time payment is made definitive Registered
Securities have not been issued in exchange for the entire principal amount of the Predecessor Securities. The foregoing provisions
shall apply mutatis mutandis to any withholding or deduction for or on account of any present or future taxes, levies, duties,
assessments, imposts or governmental charges of whatever nature of any jurisdiction in which any successor Person to the Issuer
is organized, or any political subdivision or taxing authority thereof or therein.]
The Indenture permits, with certain exceptions
as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the
Holders of the Securities of each series to be affected under the Indenture at any time by the Issuer and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of all Securities of such series to waive compliance by the Issuer
with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent
or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security
and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation
of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions
of the Indenture, no Holder of any Security of this series will have any right to institute any proceeding with respect to the
Indenture, this Security or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice
of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount
of the Outstanding Securities of this series shall have made written request, and offered security and/or indemnity reasonably
satisfactory to the Trustee, to the Trustee to institute such proceeding as trustee, and the Trustee shall not have received from
the Holders of a majority in principal of the Outstanding Securities of this series a direction inconsistent with such request
and shall have failed to institute such proceeding within 60 days; provided, however, that such limitations do not apply to a suit
instituted by the Holder hereof for the enforcement of payment of the principal (and premium, if
any)
or any interest on this Security on or after the respective due dates expressed herein [If applicable, insert – or to a
suit instituted by the Holder hereof for the enforcement of the right to convert this Security in accordance with the Indenture].
No reference herein to the Indenture and
no provision of this Security or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional,
to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency,
herein prescribed or to convert this Security as provided in the Indenture.
No service charge shall be made for any
such registration of transfer or exchange, but the Issuer or the Trustee may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith.
The Indenture and the Securities shall be
governed by and construed in accordance with the laws of the State of New York.
All terms used in this Security which are
defined in the Indenture shall have the meanings assigned to them in the Indenture.
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Security
shall be $ [/€] ________________. The following decreases/increases in the principal amount of this Security have been made:
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Date
of
Decrease/Increase
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Decrease
in
Principal Amount
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Total
Principal Increase in Principal Amount
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Amount
Following such Decrease/Increase
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Made
by on Behalf of Trustee
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Section 2.03. Form of Registered Security.
[Form of Face of Registered Security]
[Insert any legend required by the Internal
Revenue Code and the regulations thereunder.]
SMITH & NEPHEW PLC
[Title of Security]
No. _______________
CUSIP NO. _____
SMITH & NEPHEW PLC, a public limited
company incorporated under the laws of England and Wales (herein called the “Issuer”, which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to _____________________ [If applicable
– insert – as nominee for [insert name]], or registered assigns, the principal sum of _______________ on ___________________
[if the Security is to bear interest prior to Maturity, insert –, and to pay interest thereon from __________, 20 ____ or
from the most recent Interest Payment Date to which interest has been paid or duly provided for, semiannually in arrears on ______________
and ______________ in each year] [annually in arrears on ____________ in each year], commencing ___________________, 20____, at
the rate of _______% per
annum,
until the principal hereof is paid or made available for payment [if applicable, insert –; provided that any principal and
premium, and any such instalment of interest, which is overdue shall bear interest at the rate of _____% per annum (to the extent
that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand.] The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest which shall
be the ______ [or _________] (whether or not a Business Day)[, as the case may be,] next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities
of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest
prior to Maturity, insert – The principal of this Security shall not bear interest except in the case of a default in payment
of principal upon acceleration, upon redemption or at Stated Maturity, and in such case the overdue principal and any overdue premium
shall bear interest at the rate of _________% per annum (to the extent that the payment of such interest shall be legally enforceable),
from the date such amounts are due until they are paid or made available for payment. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal or premium which is not so paid on demand shall bear interest at
the rate of ____% per annum (to the extent that the payment of such interest on interest shall be legally enforceable), from the
date of such demand until the amount so demanded is paid or made available for payment. Interest on overdue interest shall be payable
on demand.]
Payment of the principal of (and premium,
if any) and [if applicable, insert – any such] interest on this Security will be made at the office or agency of the Issuer
maintained for that purpose in ________, in [such coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts] [If Security is denominated and payable in United States dollars insert currency
and method of payment] [if applicable, insert –; provided, however, that at the option of the Issuer payment of interest
may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register].
Reference is hereby made to the further
provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect
as if set forth at this place.
[All terms used in this Security which are
defined in the Indenture shall have the meanings assigned to them in the Indenture.]
Unless the certificate of authentication
hereon has been executed by the Trustee referred to on the reverse hereof, by manual or pdf or other electronically-imaged (including,
without limitation, DocuSign or Adobe Sign) signature of an authorized signatory, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused
this instrument to be duly executed manually, electronically or in facsimile.
Dated:
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SMITH & NEPHEW PLC
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By:
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Name:
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Title: Director
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[Form of Reverse of Registered Security]
This Security is one of a duly authorized
issue of securities of the Issuer (herein called the “Securities”), issued and to be issued in one or more series under
an Indenture, dated as of _______________, 2020 (herein called the “Indenture”, which term shall have the meaning assigned
to it in such instrument), between the Issuer and The Bank of New York Mellon, London Branch, as Trustee (herein called the “Trustee”,
which term includes any other successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement
of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [, limited in aggregate principal amount to U.S.$ [/ €]________________].
[If applicable, insert – The Securities
of this series are subject to redemption upon not less than [insert minimum notice requirement] nor more than [insert maximum notice
requirement] days’ notice by mail, [if applicable, insert – (1) on _______________ in any year commencing with the
year _______ and ending with the year _________ through operation of the sinking fund for this series at a Redemption Price equal
to [insert formula for determining amount] (with the amount in excess of 100% of the principal amount being additional interest),
and (2)] at any time [if applicable, insert – on or after _________________, 20_____], as a whole or in part, at the election
of the Issuer, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [if applicable,
insert – on or before _____________, _______%, and if redeemed] during the 12-month period beginning __________________ of
the years indicated,
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Year
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Redemption
Price
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Year
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Redemption
Price
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and thereafter at a Redemption Price equal to ________% of the
principal amount, together in the case of any such redemption [if applicable, insert – (whether through operation of the
sinking fund or otherwise)] with accrued interest and any additional amounts due on the Redemption Date, but interest instalments
whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert – The Securities
of this series are subject to redemption upon not less than [insert minimum notice requirement] nor more than [insert maximum notice
requirement] days’ notice by mail, (1) on ____________
in
any year commencing with the year __________ and ending with the year _____, through operation of the sinking fund for this series
at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below, and (2) at any time [if applicable, insert – on or after ________________, 20_____], as a
whole or in part, at the election of the Issuer, at the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount, with the amount in excess of 100% of the principal amount being
additional interest) set forth in the table below: If redeemed during the 12-month period beginning __________________ of the
years indicated,
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Year
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Redemption
Price For Redemption Through Operation of the Sinking Fund
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Redemption
Price For Redemption Otherwise Than Through Operation of the Sinking Fund
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and thereafter at a Redemption Price equal to _______% of the
principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with
accrued interest and any additional amounts due on the Redemption Date, but interest instalments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert – Notwithstanding
the foregoing, the Issuer may not, prior to _____________, redeem any Securities of this series as contemplated by [If applicable,
insert – Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the Issuer (calculated in accordance with generally accepted
financial practice) of less than ______% per annum.]
[If applicable, insert – The sinking
fund for this series provides for the redemption on ______________ in each year beginning with the year ________ and ending with
the year ____________ of [if applicable, insert – not less than U.S.$ [/ €]______________ (“mandatory sinking
fund”) and not more than U.S.$ [/ €]_______] aggregate principal amount of Securities of this series. Securities of
this series acquired or redeemed by the Issuer otherwise than through [if applicable, insert – mandatory] sinking fund payments
may be credited against subsequent [if applicable, insert – mandatory] sinking fund payments otherwise required to be made
[if applicable, insert – in the inverse order in which they become due].]
[If applicable, insert – The Securities
may be redeemed at the option of the Issuer, in whole but not in part, upon not less than 10 nor more than 60 days’ notice
given as provided in the Indenture, at any time at a Redemption Price equal to the principal amount thereof plus accrued interest
and any additional amounts due on the date fixed for redemption if (a) as a result of a change in or any amendment to the laws
or any regulations or rulings promulgated thereunder of the United Kingdom (or of any political subdivision or taxing authority
thereof or therein) (or in the case of a successor Person to the Issuer of the jurisdiction in which such successor Person is organized
or any political subdivision or taxing authority thereof or therein) affecting taxation or any change in an application or interpretation
of such laws, regulations or rulings, or any change in an application or interpretation of, or any execution of or amendment to,
any treaty or treaties affecting taxation to which the United Kingdom or any political subdivision or taxing authority thereof
or therein (or such other jurisdiction or political subdivision or taxing authority) is a party, which change, amendment application,
interpretation or execution becomes effective on or after _____________ (or, in the case of a successor Person to the Issuer that
is a non-United Kingdom entity, the date on which such successor Person became such pursuant to the applicable provision of the
Indenture) or (b) as a result of any delivery or of any requirement to deliver definitive Registered Securities (having used all
reasonable efforts to avoid having to issue such definitive Registered Securities), (i) the Issuer (or such successor Person) is
or would be required to pay additional amounts with respect to the Securities, on the next succeeding Interest Payment Date as
set forth below or (ii) any Subsidiary of the Issuer is or would be required to deduct or withhold tax on any payment to the Issuer
to enable the Issuer to make any payment of principal or interest in respect of the Securities and, in each case, the payment of
such additional amounts in the case of (i) above or such deduction or withholding in the case of (ii) above cannot be avoided by
the use of any reasonable measures available to the Issuer or the Subsidiary.]
[If applicable, insert – The Securities
may also be redeemed in whole but not in part upon not less than 10 nor more than 60 days’ notice given as provided in the
Indenture at any time at a Redemption Price equal to the principal amount thereof plus accrued interest and any additional amounts
due on the date fixed for redemption if the Person formed by a consolidation of the Issuer or into which the Issuer is merged or
to which the Issuer conveys, transfers or leases all or substantially all of its assets and the assets of its Subsidiaries, taken
as a whole is required to pay a Holder additional amounts in respect of any tax, assessment or governmental charge imposed on any
such Holder or required to be withheld or deducted from any payment to such Holder as a consequence of such consolidation, merger,
conveyance, transfer or lease.]
[If applicable, insert – the Redemption
Price of the Securities shall be equal to the applicable percentage of the principal amount at Stated Maturity set forth below:
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If Redemption During the 12-Month Period Commencing
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Redemption Price
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together with, in each case (except if the Redemption Date shall
be a __________), an amount equal to the applicable Redemption Price multiplied by a fraction the numerator of which is the number
of days from but not including the preceding __________________ to and including the Redemption Date multiplied by the difference
between the Redemption Price applicable during the 12 months beginning on the ________________ following the Redemption Price (or,
in the case of a Redemption Date after _____________, 100%) and the Redemption Price applicable on the Redemption Date and the
denominator of which is the total number of days from but not including the ______________ preceding the Redemption Date to and
including the next succeeding ___________. The Issuer will also pay to each eligible Holder, or make available for payment to each
such Holder, on the Redemption Date any additional interest (as set forth on the face hereof) resulting from the payment of such
Redemption Price.]
[If applicable, insert – The Redemption
Price of the Securities either in the event of certain changes in the tax treatment or in an event of default would include, in
addition to the face amount of the Security, an amount equal to the Original Issue Discount accrued since the issue date. Original
Issue Discount (the difference between the Issue Price and the Principal Amount at Maturity of the Security), in the period during
which a Security remains outstanding, shall accrue at _______% per annum, on a semiannual bond equivalent basis using a 360-day
year composed of 12 30-day months, commencing on the Issue Date of this Security.]
[If applicable, insert – Notice of
redemption will be given by mail to Holders of Securities, not less than 10 nor more than 60 days prior to the date fixed redemption,
all as provided in the Indenture.]
[If the Security is subject to redemption
of any kind, insert – In the event of redemption of this Security in part only, a new Security or Securities of this series
and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert – The Indenture
contains provisions for defeasance at any time of the entire indebtedness on this Security upon compliance by the Issuer with certain
conditions set forth thereon, which provisions apply to this Security.]
[If applicable, insert – Subject to
and upon compliance with the provisions of the Indenture, the Holder of this Security is entitled at his or her option, at any
time
after ____________________, to convert this Security into [Describe Securities and conversion mechanics].]
[If applicable, insert – In the event
of conversion of this Security in part only, a new Security or Securities of this series and of like tenor for the unconverted
portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue
Discount Security, insert – If an Event of Default with respect to Securities of this series shall occur and be continuing,
the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount
Security, insert – If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount
of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to – [insert formula for determining the amount]. Upon payment (i) of the amount of
principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the
extent that the payment of such interest shall be legally enforceable), all of the applicable Issuer’s obligations in respect
of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.]
[If not applicable, delete – If any
deduction or withholding for any present or future taxes, levies, duties, assessments, imposts or other governmental charges whatsoever
imposed, assessed, levied by or collected or for the account of the United Kingdom (or any political subdivision or taxing authority
thereof or therein) shall at any time be required by applicable law or regulation of the United Kingdom (or any such political
subdivision or taxing authority) in respect of any amounts to be paid by the Issuer under the Securities, the Issuer will (subject
to what follows) pay to the Holder of this Security, such additional amounts as may be necessary in order that the net amounts
received by such Holder of such Security, after such deduction or withholding, shall be not less than the amounts to which such
Holder would be entitled had such deduction or withholding not been so imposed, assessed, levied or collected; provided, however,
that the Issuer shall not be required to make any payment of additional amounts for or on account of:
(1) any
present or future tax, levy, impost or other governmental charge which would not have been so imposed, assessed, levied or collected
but for the fact that the Holder of the relevant Security (or a fiduciary, settlor, beneficiary, member or shareholder of, or possessor
of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) is or has been a domiciliary, national
or resident of, or engaging or having been engaged in a trade or business or maintaining or having maintained a permanent establishment
or
being
or having been physically present in, the United Kingdom or any political subdivision or taxing authority thereof or therein or
otherwise having or having had some connection with the United Kingdom or any political subdivision or taxing authority thereof
or therein other than the holding or ownership of a Security, or the collection of principal of, and interest, if any, on, or
the enforcement of, a Security;
(2) any
present or future tax, levy, impost or other governmental charge which would not have been so imposed, assessed, levied or collected
but for the fact that, where presentation is required, the relevant Security was presented more than 30 days after the date on
which such payment became due or was provided for, whichever is later;
(3) any
estate, inheritance, gift, sale, transfer, personal property or similar tax, levy, impost or other governmental charge;
(4) any
present or future tax, levy, impost or other governmental charge which is payable otherwise than by deduction or withholding from
payments on or in respect of the relevant Security;
(5) any
present or future tax, levy, impost or other governmental charge which would not have been so imposed, assessed, levied, collected
or withheld but for the failure to comply with any request addressed to the Holder for certification, identification or other information
reporting concerning the nationality, residence, identity or connection with the United Kingdom or any political subdivision or
taxing authority thereof or therein of the Holder or beneficial owner of the relevant Security, if compliance is required by treaty
or by statute, regulation or administrative practice of the United Kingdom or any such political subdivision or taxing authority
thereof or therein as a condition to relief or exemption from such tax, levy, impost or other governmental charge (which such Holder
or beneficial owner is legally entitled to provide);
(6) any
present or future tax, levy, impost or other governmental charge which a Holder would have been able to avoid by authorizing the
paying agent to report information in accordance with the procedure laid down by the relevant tax authority or by producing, in
the form requested by the relevant tax authority, a declaration, claim, certificate, document or other evidence establishing exemption
therefrom which has been requested of such Holder and which it is legally entitled to provide;
(7)
any present or future tax, levy, impost or other governmental change imposed by the United States of America or any political subdivision
or taxing authority thereof or therein;
(8) any
present or future tax, levy, impost or other governmental charge imposed, assessed, levied or collected in respect of a payment
under or with respect to a Security to any Holder of the relevant Security that is a fiduciary,
partnership
or a person other than the sole beneficial owner of such payment or Security to the extent that the beneficiary or settlor with
respect to the fiduciary, member of that partnership or beneficial owner would not have been entitled to the additional amounts
or would not have been subject to such tax, levy, impost or charge, had that beneficiary, settlor, member or beneficial owner
been the actual Holder of such Security; or
(9) any
combination of items (1) through (8) above.
nor shall additional amounts be paid in the event that the obligation
to pay additional amounts is the result of the issuance of definitive Registered Securities to a Holder of a Predecessor Security
at such Holder’s request upon the occurrence of an Event of Default and at the time payment is made definitive Registered
Securities have not been issued in exchange for the entire principal amount of the Predecessor Securities. The foregoing provisions
shall apply mutatis mutandis to any withholding or deduction for or on account of any present or future taxes, levies, duties,
assessments, imposts or governmental charges of whatever nature of any jurisdiction in which any successor Person to the Issuer
is organized, or any political subdivision or taxing authority thereof or therein.]
The Indenture permits, with certain exceptions
as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the
Holders of the Securities of each series to be affected under the Indenture at any time by the Issuer and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of all Securities of such series to waive compliance by the Issuer
with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent
or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security
and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation
of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions
of the Indenture, no Holder of any Security of this series will have any right to institute any proceeding with respect to the
Indenture, this Security or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice
of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount
of the Outstanding Securities of this series shall have made written request, and offered security and/or indemnity reasonably
satisfactory to the Trustee, to the Trustee to institute such proceeding as trustee, and the Trustee shall not have received from
the Holders of a majority in principal of the Outstanding Securities of this series a direction inconsistent with such
request
and shall have failed to institute such proceeding within 60 days; provided, however, that such limitations do not apply to a
suit instituted by the Holder hereof for the enforcement of payment of the principal (and premium, if any) or any interest on
this Security on or after the respective due dates expressed herein [If applicable, insert – or to a suit instituted by
the Holder hereof for the enforcement of the right to convert this Security in accordance with the Indenture].
No reference herein to the Indenture and
no provision of this Security or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional,
to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency,
herein prescribed or to convert this Security as provided in the Indenture.
[Insert if only Registered Securities may
be issued – The Securities of this series are issuable only in registered form without coupons in denominations of __________________
and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities
of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same. As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Issuer in any place where the principal of and any premium and interest
on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Security Registrar duly executed by, the Holder hereof or his or her attorney duly authorized in writing, and thereupon
one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.]
As provided in the Indenture and subject
to certain limitations therein set forth, the transfer of Registered Securities is registrable in the Security Register, upon surrender
of a Registered Security for registration of transfer at the office or agency of the Issuer in any place where the principal of
and any premium and interest on a Registered Security are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Security Registrar duly executed by, the Holder thereof or his or her attorney
duly authorized in writing, and thereupon one or more new Registered Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any
such registration of transfer or exchange, but the Issuer or the Trustee may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith.
Prior to due presentation of this Security
for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose
name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither of
the Issuer nor the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be
governed by and construed in accordance with the laws of the State of New York.
All terms used in this Security which are
defined in the Indenture shall have the meanings assigned to them in the Indenture.
Section 2.04. Form of Coupon.
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS
OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS
165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
[Insert any other legend required by the
Internal Revenue Code and the regulations thereunder.]
Smith & Nephew plc
[Title of Security]
[R ]*
No. _______________
Unless the Security to which this coupon
appertains shall have been called for previous redemption and payment thereof duly provided for on the date set forth hereon, Smith
& Nephew plc (hereinafter called the “Issuer”) will pay to Holder, upon surrender hereof, the amount shown hereon
(together with any additional amounts in respect thereof which the Issuer may be required to pay according to the terms of said
Security and the Indenture referred to therein) at the
__________
*
Insert if redeemable.
Paying
Agents set out on the reverse hereof or at such other offices or agencies (which, except as otherwise provided in the Security
to which this coupon appertains, shall be located inside the United States of America (including the States and the District of
Columbia), and its possessions (including Puerto Rico, the U.S. Virgin Islands, Guam American Samoa Wake Island and the Northern
Mariana Islands) (the “United States”)) as the Issuer may designate from time to time, at the option of the Holder,
[by United States dollar check drawn on a bank in The City of New York or by transfer of United States dollars to an account maintained
by the payee with a bank located outside the United States] [If Security is denominated and payable other than in United States
dollars insert currency and method of payment], being [one year’s] interest then payable on said Security.
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SMITH & NEPHEW PLC
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By:
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Name:
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Title: Director
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[Reverse of Coupon]*
Section 2.05. Form of Legend for Global
Registered Securities.
Unless otherwise specified as contemplated
by Section 3.01 for the Securities evidenced thereby, every Global Registered Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL REGISTERED SECURITY
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR
IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
Section 2.06. Form of Trustee’s
Certificate of Authentication. The Trustee’s certificate of authentication on all Securities shall be in substantially
the following form:
This is one of the Securities of the series
designated herein and referred to in the within-mentioned Indenture.
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The Bank of New York Mellon, London Branch,
as Trustee
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By:
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Authorized Officer:
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_______________
*
Insert names and addresses of initial Paying Agents located inside the United States.
Section 2.07. Amount Unlimited; Issuable
in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more
series. There shall be established in or pursuant to one or more resolutions of the Board of Directors of the Issuer or a committee
designated by the Board of Directors of the Issuer (and set forth in a Board Resolution or, to the extent established pursuant
to (rather than in) such resolutions, in an Officers’ Certificate detailing such establishment), and/or established in one
or more indentures supplemental hereto, prior to the initial issuance of Securities of any series,
(a) the
title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
(b) any
limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the series pursuant to Section 2.12, 2.13, 2.15, 8.03 or 11.03);
(c) the
date or dates on which the principal of the Securities of the series is payable;
(d) the
rate or rates at which the Securities of the series shall bear interest, if any, or, if other than on the basis of a 360-day year
of 12 30-day months, the method by which such rate shall be determined, the date or dates from which such interest shall accrue,
the interest payment dates on which such interest shall be payable and the record dates for the determination of Holders to whom
interest is payable;
(e) the
place or places where the principal of and any interest on Securities of the series shall be payable (if other than as provided
in Section 3.03);
(f) the
price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Issuer, pursuant to any sinking fund or otherwise, including the date referred
to in Section 11.06;
(g) the
obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which and the
terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligation;
(h) if
other than denominations of $2,000 or whole multiples of $1,000 in excess thereof, the denominations in which Securities of the
series shall be issuable;
(i) if
other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 4.01 or provable in bankruptcy pursuant to Section
4.02;
(j) if
other than such coin or currency of the United States of America as at the time of payment is legal tender for payment of public
or private debts, the coin or currency (including any composite currency) in which payment of the principal and interest on the
Securities of the series shall be denominated or payable, the method pursuant to which payment shall be made and the manner of
determining the equivalent thereof in the currency of the United States of America for purposes of the definition of “Outstanding”
in Article 1.
(k) if
the principal of or interest on the Securities of the series are to be payable, at the election of the Issuer or a Holder thereof,
in a coin or currency (including any composite currency) other than that in which the Securities are stated to be payable, the
period or periods within which, and the terms and conditions upon which, such election may be made;
(l) if
the amounts of payments of principal or interest, if any, on the Securities of the series may be determined with reference to an
index or are otherwise not fixed on the original issue date thereof, the manner in which such amounts shall be determined;
(m) the
forms of the Securities of the series;
(n) any
trustees, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the Securities of
such series;
(o) whether
the Securities of the series will be issued in whole or in part in the form of one or more Global Securities and, in such case,
the Depositary with respect to such Global Security or Securities; and
(p) any
other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be
substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such resolution of
the Board of Directors of the Issuer or in any such indenture supplemental hereto.
Section 2.08. Authentication and Delivery
of Securities. At any time and from time to time after the execution and delivery of this Indenture, the Issuer
may
deliver Securities of any series executed by the Issuer to the Trustee for authentication, and the Trustee shall thereupon authenticate
and deliver such Securities to or upon the written order of the Issuer contained in a Company Order. In authenticating such Securities
and accepting the additional responsibilities under this Indenture in relation to such Securities the Trustee shall be entitled
to receive, and (subject to Section 5.01) shall be fully protected in relying upon:
(a) any
Board Resolution, Officers’ Certificate and/or executed supplemental indenture referred to in Sections 2.01 and 2.07 by or
pursuant to which the terms of the Securities were established;
(b) an
Officers’ Certificates of the Issuer certifying the form and terms of the Securities, stating that the form and terms of
the Securities have been established as required pursuant to Sections 2.01 and 2.07 and comply with the Indenture;
(c) one
or more Opinions of Counsel, prepared in accordance with Section 10.05, to the effect that
(i) the
form or forms and terms of such Securities have been established as required pursuant to Section 2.07 in conformity with the provisions
of this Indenture; and
(ii) such
Securities, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and binding obligations of the Issuer enforceable against the Issuer
in accordance with its terms.
(d) if
the Securities being issued are Original Issue Discount Securities, an Officers’ Certificate of the Issuer setting forth
the Yield to Maturity for the Securities and any other facts required to compute amounts due on acceleration, unless such Yield
to Maturity and other facts are specified in the form of the Securities. Any additional debt securities will have a separate CUSIP,
ISIN, Common Code or other identifying number from the debt securities originally issued of such series, unless the additional
debt securities are fungible with the originally issued debt securities of the same series for U.S. federal income tax purposes.
The Trustee shall have the right to decline
to authenticate and deliver any Securities under this Section 2.08 if the Trustee, being advised by counsel, determines that such
action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would
expose the Trustee to personal liability to existing Holders.
Section 2.09. Execution of Securities.
The Securities shall be signed on behalf of the Issuer by any two directors or by one director and its secretary or any assistant
secretary. Such signatures may be the manual or pdf or other electronically-imaged (including, without limitation, DocuSign or
Adobe Sign) or facsimile signatures of the present or any future such officers. Typographical and other minor errors or defects
in any such reproduction of any such signature shall not affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall
have signed any of the Securities shall cease to be such officer before the Security so signed shall be authenticated and delivered
by the Trustee or disposed of by the Issuer, such Security nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Security had not ceased to be such officer of the Issuer; and any Security may be signed on behalf of
the Issuer by such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Issuer,
although at the date of the execution and delivery of this Indenture any such person was not such an officer.
Section 2.10. Certificate of Authentication.
Only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited,
executed by the Trustee by the manual or pdf or other electronically-imaged (including, without limitation, DocuSign or Adobe Sign)
or facsimile signature of one of its authorized officers, shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose. Such certificate by the Trustee upon any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of
this Indenture.
Section 2.11. Denomination and Date of
Securities; Payments of Interest. The Securities shall be issuable as registered securities without coupons and in denominations
as shall be specified as contemplated by Section 2.07. In the absence of any such specification with respect to the Securities
of any series, the Securities of such series shall be issuable in denominations of $2,000 or whole multiples of $1,000 in excess
thereof. The Securities shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plan
as the officers of the Issuer executing the same may determine with the approval of the Trustee as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of
its authentication, shall bear interest, if any, from the date and shall be payable on the dates, in each case, which shall be
specified as contemplated by Section 2.07.
The person in whose name any Security of
any series is registered at the close of business on any record date applicable to a particular series with respect to any interest
payment date for such series shall be entitled to receive the interest,
if
any, payable on such interest payment date notwithstanding any transfer or exchange of such Security subsequent to the record
date and prior to such interest payment date, except if and to the extent the Issuer shall default in the payment of the interest
due on such interest payment date for such series, in which case such defaulted interest shall be paid to the persons in whose
names Outstanding Securities for such series are registered at the close of business on a subsequent record date (which shall
be not less than five Business Days prior to the date of payment of such defaulted interest) established by notice given by mail
by or on behalf of the Issuer to the Holders of Securities not less than 15 days preceding such subsequent record date. The term
“record date” as used with respect to any interest payment date (except a date for payment of defaulted interest)
shall mean the date specified as such in the terms of the Securities of any particular series, or, if no such date is so specified,
if such interest payment date is the first day of a calendar month, the fifteenth day of the next preceding calendar month or,
if such interest payment date is the fifteenth day of a calendar month, the first day of such calendar month, whether or not such
record date is a Business Day.
Section 2.12. Registration, Transfer
And Exchange.
(a) Global
Securities. This Section 2.12(a) shall apply only to Global Securities deposited with the Depository unless otherwise provided
as contemplated by Section 2.07.
Unless the Global Security is presented
by an authorized representative of the Depository to the Issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of a nominee of the Depository and any payment is made to such nominee, any
transfer, pledge or other use of the Global Security in registered form for value or otherwise shall be wrongful since the registered
owner of such Global Security, the nominee of the Depository, has an interest in such Global Security.
Except as otherwise specified as contemplated
by Section 2.07 hereof, any Global Security shall be exchangeable for definitive Securities only as provided in this paragraph.
A Global Security shall be exchangeable pursuant to this Section 2.12 only if (a) the Depository notifies the Issuer that it is
unwilling or unable to continue to hold such Global Security or if at any time the Depository ceases to be a clearing agency registered
under the Exchange Act and a successor Depository is not appointed by the Issuer, (b) there shall have occurred and be continuing
an Event of Default with respect to the Securities, or (c) at any time if the Issuer in its sole discretion determines that the
Global Securities or any of them should be exchanged for definitive Securities. The Issuer shall notify the Trustee in writing
that such exchange has taken place and that the Depository is no longer the Holder of such Global Security, in whole or in part.
Unless and until such notice is received by the Trustee, the Trustee shall be entitled to assume that no such exchange of Global
Security for definitive Securities has occurred, and shall have no liability with respect to any payment in reliance thereon. Any
Global Security
that
is exchangeable pursuant to this Section 2.12 shall be exchangeable for definitive Securities in registered form, bearing interest
(if any) at the same rate or pursuant to the same formula, having the same date of issuance, redemption provisions, if any, specified
currency and other terms and of differing denominations aggregating a like amount as the Global Security so exchangeable. Definitive
Securities shall be registered in the names of the owners of the beneficial interests in such Global Security as such names are
from time to time provided by the relevant Agent Member holding interests in such Global Security (as such Agent Member is identified
from time to time by the Depository).
No Global Security may be transferred except
as a whole by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such
nominee to a successor of the Depository or a nominee of such successor. Except as provided above, owners solely of beneficial
interests in a Global Security shall not be entitled to receive physical delivery of Securities in definitive form and will not
be considered the holders thereof for any purpose under this Indenture.
In the event that a Global Security is surrendered
for redemption in part pursuant to Section 11.02 the Issuer shall execute, and the Trustee shall authenticate and deliver to the
Depository for such Global Security, without service charge, a new Global Security, in a denomination equal to the unredeemed portion
of the principal of the Global Security so surrendered.
None of the Trustee, any Paying Agent and
any Security Registrar shall have any responsibility or obligation to any beneficial owner in a Global Security, an Agent Member
or other Person with respect to (i) the accuracy of the records of the Depositary or its nominee or of any Agent Member, with respect
to any ownership interest in the Securities, (ii) the delivery to any Agent Member, beneficial owner or other Person (other than
the Depositary) of any notice (including any notice of redemption) or (iii) the payment of any amount, under or with respect to
such Securities. All notices and communications to be given to the Securityholders and all payments to be made to Securityholders
under the Securities and this Indenture shall be given or made only to or upon the order of the Holders (which shall be the Depositary
or its nominee in the case of the Global Security). The rights of beneficial owners in the Global Security shall be exercised only
through the Depositary subject to the applicable procedures. The Trustee, any Paying Agent and any Security Registrar shall be
entitled to rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members,
participants and any beneficial owners. The Trustee, any Paying Agent and any Security Registrar shall be entitled to deal with
the Depositary, and any nominee thereof, that is the Holder of any Global Security for all purposes of this Indenture relating
to such Global Security (including the payment of principal, premium, if any, and interest and additional amounts, if any, and
the giving of instructions or directions by or to the owner or holder of a beneficial ownership interest in such Global Security)
as the sole holder of such
Global
Security and shall have no obligations to the beneficial owners thereof. None of the Trustee, any Paying Agent and any Security
Registrar shall have any responsibility or liability for any acts or omissions of the Depositary with respect to such Global Security,
for the records of any such Depositary, including records in respect of beneficial ownership interests in respect of any such
Global Security, for any transactions between the Depositary and any Agent Member or between or among the Depositary, any such
Agent Member and/or any holder or owner of a beneficial interest in such Global Security, or for any transfers of beneficial interests
in any such Global Security.
The Agent Members shall have no rights under
this Indenture with respect to any Global Security held on their behalf by a Depository, and such Depository may be treated by
the Issuer, the Trustee, and any agent of the Issuer, or the Trustee as the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee, or any agent of the Issuer, or the Trustee,
from giving effect to any written certification, proxy or other authorization furnished by a Depository or impair, as between a
Depository (or its nominee) and its Agent Members, the operation of customary practices governing the exercise of the rights of
a holder of any Security, including without limitation the granting of proxies or other authorization of 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.
In connection with any exchange of interests
in a Global Security for definitive Securities, as provided in this subsection (a), then without unnecessary delay but in any event
not later than the earliest date on which such interests may be so exchanged, the Issuer shall deliver to the Trustee definitive
Securities, in aggregate principal amount equal to the principal amount of such Global Security executed by the Issuer. On or after
the earliest date on which such interests may be so exchanged, such Global Security shall be surrendered by the Depository to the
Trustee, as the Issuer’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in exchange for each portion of such Global Security, an equal aggregate
principal amount of definitive Securities of authorized denominations as the portion of such Global Security to be exchanged. Any
Global Security that is exchangeable pursuant to this Section 2.12 shall be exchangeable for Securities issuable in the denominations
specified as contemplated by Section 2.07 and registered in such names as the Depository that is the Holder of such Global Security
shall direct. If a definitive Security is issued in exchange for any portion of a Global Security after the close of business at
the office or agency where such exchange occurs on any record date and before the opening of business at such office or agency
on the relevant payment date, interest payments will not be payable on such payment date in respect of such definitive Security,
but will be payable on such payment date only to the person to whom interest payments in respect of such portion of such Global
Security are payable.
The Depository may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action which
a Holder is entitled to take under this Indenture with respect to the Securities.
None of the Trustee, any Paying Agent and
any Security Registrar shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions
on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including
any transfers between or among Depositary participants, members or beneficial owners in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly
required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express
requirements hereof.
(b) The
Issuer will keep or cause to be kept at each office or agency to be maintained for the purpose as provided in Section 3.03 a register
or registers (the register or registers maintained in any such office or agency being herein referred to collectively as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, it will register, and will register the
transfer of, Securities as provided for in this Article 2. Such register shall be in written form in the English language or in
any other form capable of being converted into such form within a reasonable time. At all reasonable times the Security Register
shall be open for inspection by the Trustee.
The Issuer initially appoints The Bank of
New York Mellon at 240 Greenwich Street, New York, New York 10286, United States of America as Security Registrar (the “Security
Registrar”) for each series of Securities.
Upon due presentation for registration of
transfer of any Security of any series at any such office or agency to be maintained for the purpose as provided in Section 3.03,
the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security
or Securities of the same series in authorized denominations for a like aggregate principal amount.
Any Security or Securities of any series
may be exchanged for a Security or Securities of the same series in other authorized denominations, in an equal aggregate principal
amount. Securities of any series to be exchanged shall be surrendered at any office or agency to be maintained by the Issuer for
the purpose as provided in Section 3.03, and the Issuer shall execute and the Trustee shall authenticate and deliver in exchange
therefor the Security or Securities of the same series which the Securityholder making the exchange shall be entitled to receive
and bearing numbers not contemporaneously outstanding.
All Securities presented for registration
of transfer, exchange, redemption or payment shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder
or his or her attorney duly authorized in writing.
The Issuer or the Trustee may require payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any exchange or registration
of transfer of Securities. No service charge shall be made for any such transaction.
The Issuer shall not be required to exchange
or register a transfer of (a) any Securities of any series for a period of 15 days next preceding the first mailing of notice of
redemption of Securities of such series to be redeemed, or (b) any Securities selected, called or being called for redemption except,
in the case of any Security where public notice has been given that such Security is to be redeemed in part, the portion thereof
not so to be redeemed.
All Securities issued upon any registration
of transfer or exchange of Securities shall be valid obligations of the Issuer, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Section 2.13. Mutilated, Defaced, Destroyed,
Lost and Stolen Securities. In case any temporary or definitive Security (including any Global Security) shall become mutilated,
defaced or be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon the written request of any officer
of the Issuer, the Trustee shall authenticate and deliver, a new Security of the same series and bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of and substitution for the Security
so destroyed, lost or stolen. In every case the applicant for a substitute Security shall furnish to the Issuer and to the Trustee
and any agent of the Issuer, or the Trustee such security or indemnity as may be required by them to indemnify and defend and to
save each of them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
Upon the issuance of any substitute Security,
the Issuer or the Trustee may require the payment of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
In case any Security which has matured or
is about to mature or has been called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen,
the Issuer may instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except
in the case of
a
mutilated or defaced Security), if the applicant for such payment shall furnish to the Issuer and to the Trustee and any agent
of the Issuer or the Trustee such security or indemnity as any of them may require to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer,
or the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.
Every substitute Security of any series
issued pursuant to the provisions of this Section 2.13 by virtue of the fact that any such Security is destroyed, lost or stolen
shall constitute an additional contractual obligation of the Issuer 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 (but shall be subject to all the limitations
of rights set forth in) this Indenture equally and proportionately with any and all other Securities of such series duly authenticated
and delivered hereunder. All Securities shall be held and owned upon the express condition that, to the extent permitted by law,
the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen
Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted
to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
Section 2.14. Cancellation of Securities;
Destruction Thereof. All Securities surrendered for payment, redemption, registration of transfer or exchange, or for credit
against any payment in respect of a sinking or analogous fund, if surrendered to the Issuer, or any agent of the Issuer, or the
Trustee, shall be delivered to the Trustee for cancellation or, if surrendered to the Trustee, shall be cancelled by it in accordance
with its customary procedures; and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions
of this Indenture. The Trustee shall, subject to the record retention requirements of the Exchange Act, dispose of cancelled Securities
held by it and upon written request of the Issuer deliver a certificate of disposal to the Issuer. If the Issuer shall acquire
any of the Securities, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.15. Temporary Securities. Pending
the preparation of definitive Securities for any series, the Issuer may execute and the Trustee shall authenticate and deliver
temporary Securities for such series, having endorsed thereon Securities duly executed by the Issuer (printed, lithographed, typewritten
or otherwise reproduced, in each case in form satisfactory to the Trustee). Temporary Securities of any series shall be issuable
as registered Securities without coupons, of any authorized denomination, and substantially in the form of the definitive Securities
of such series but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be
determined
by the Issuer with the concurrence of the Trustee. Temporary Securities may contain such reference to any provisions of this Indenture
as may be appropriate. Every temporary Security shall be executed by the Issuer and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the definitive Securities. Without unreasonable delay
the Issuer shall execute and shall furnish definitive Securities of such series and thereupon temporary Securities of such series
may be surrendered in exchange therefor without charge at each office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.03, and the Trustee shall authenticate and deliver in exchange for such temporary Securities of such series
a like aggregate principal amount of definitive Securities of the same series of authorized denominations. Until so exchanged,
the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of
such series.
Section 2.16. CUSIPs, ISINs and Common
Codes. The Issuer in issuing any series of the Securities may use a CUSIP, ISIN, Common Code or other similar numbers, if then
generally in use, and thereafter with respect to such series, the Trustee may use such numbers in any notice of redemption with
respect to such series. The Issuer shall promptly notify the Trustee in writing of any change in the CUSIP, ISIN, Common Code or
other similar numbers.
Article
3
Covenants Of The Issuer And The Trustee
As to the Issuer:
Section 3.01. Payment of Principal and
Interest. The Issuer covenants and agrees for the benefit of the Holders of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest, if any, on, each of the Securities of such series at the place
or places, at the respective times and in the manner provided in such Securities. Each installment of interest on the Securities
of any series may be paid by mailing checks for such interest payable to or upon the written order of the Holders of Securities
entitled thereto as they shall appear on the registry books of the Issuer.
Section 3.02. Additional Amounts. Unless
otherwise specified in any Board Resolution or Officers’ Certificate, as applicable, establishing the terms of Securities
of a series in accordance with Section 2.07, all amounts of principal, and interest, if any, on any series of Securities will be
paid by the Issuer without deducting or withholding for, or on account of, any and all present and future taxes, levies, duties,
assessments, imposts or other governmental charges of whatsoever imposed, assessed, levied or collected by or for the account of
the United Kingdom or any political subdivision or taxing authority thereof or therein or if deduction or withholding of any such
taxes, levies, imposts or other
governmental
charges shall at any time be required by applicable law or regulation of the United Kingdom or any such subdivision or authority,
the Issuer will (subject to what follows) pay such additional amounts in respect of principal, interest, if any, and sinking fund
payments as may be necessary in order that the net amounts received by the Holders of the Securities or the Trustee under this
Indenture, as the case may be, pursuant to the Securities, after such deduction or withholding, shall equal the respective amounts
of principal, interest, if any, and sinking fund payments, as specified in the Securities, to which such Holders or the Trustee
would be entitled had such deduction or withholding not been so imposed, assessed, levied or collected; provided, however, that
the foregoing shall not apply to (i) any present or future tax, levy, impost or other governmental charge which would not have
been so imposed, assessed, levied or collected but for the fact that the Holder of the relevant Security (or a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership
or corporation) is or has been a domiciliary, national or resident of, or engaging or having been engaged in a trade or business
or maintaining or having maintained a permanent establishment or being or having been physically present in, the United Kingdom
or any political subdivision or taxing authority thereof or therein or otherwise having or having had some connection with the
United Kingdom or any political subdivision or taxing authority thereof or therein other than the holding or ownership of a Security,
or the collection of principal of, and interest, if any, on, or the enforcement of, a Security, (ii) any present or future tax,
levy, impost or other governmental charge which would not have been so imposed, assessed, levied or collected but for the fact
that, where presentation is required, the relevant Security was presented more than 30 days after the date on which such payment
became due or was provided for, whichever is later, (iii) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, levy, impost or other governmental charge, (iv) any present or future tax, levy, impost or other governmental charge
which is payable otherwise than by deduction or withholding from payments on or in respect of the relevant Security, (v) any present
or future tax, levy, impost or other governmental charge which would not have been so imposed, assessed, levied, collected or
withheld but for the failure to comply with any request addressed to the Holder for certification, identification or other information
reporting concerning the nationality, residence, identity or connection with the United Kingdom or any political subdivision or
taxing authority thereof or therein of the Holder or beneficial owner of the relevant Security, if compliance is required by treaty
or by statute, regulation or administrative practice of the United Kingdom or any such political subdivision or taxing authority
thereof or therein as a condition to relief or exemption from such tax, levy, impost or other governmental charge (which such
Holder or beneficial owner is legally entitled to provide), (vi) any present or future tax, levy, impost or other governmental
charge which a Holder would have been able to avoid by authorizing the paying agent to report information in accordance with the
procedure laid down by the relevant tax authority or by producing, in the form requested by the relevant tax authority, a declaration,
claim, certificate, document or other evidence establishing exemption
therefrom
which has been requested of such Holder and which it is legally entitled to provide (vii) any present or future tax, levy, impost
or other governmental charge imposed by the United States of America or any political subdivision or taxing authority thereof
or therein, (viii) any present or future tax, levy, impost or other governmental charge imposed, assessed, levied or collected
in respect of a payment under or with respect to a Security to any Holder of the relevant Security that is a fiduciary, partnership
or a person other than the sole beneficial owner of such payment or Security to the extent that the beneficiary or settlor with
respect to the fiduciary, member of that partnership or beneficial owner would not have been entitled to the additional amounts
or would not have been subject to such tax, levy, impost or charge, had that beneficiary, settlor, member or beneficial owner
been the actual Holder of such Security; or (ix) any combination of items (i) through (viii) above.
At least 30 days prior to each date on which
any payment under or with respect to any debt securities is due and payable (unless such obligation to pay additional amounts arises
after the 30th day prior to the date on which payment under or with respect to the debt securities is due and payable, in which
case it will be promptly thereafter), if we will be obligated to pay additional amounts with respect to such payment, we will deliver
to the Trustee an Officers’ Certificate stating that such additional amounts will be payable and the amounts so payable and
setting forth such other information as is necessary to enable the trustee to pay such additional amounts to the holders of such
debt securities on the payment date.
Section 3.03. Offices for Payments, etc.
So long as any of the Securities of any series remain Outstanding, the Issuer will maintain in the Borough of Manhattan, The
City and State of New York, United States of America the following for the Securities of such series (unless otherwise provided
for in the Securities of such series): an office or agency (a) where the Securities of such series may be presented for payment,
(b) where the Securities may be presented for registration of transfer and for exchange as provided for in this Indenture and (c)
where notices and demands to or upon the Issuer in respect of the Securities or of this Indenture may be served. The Issuer will
give to the Trustee written notice of the location of any such office or agency and of any change of location thereof.
Unless otherwise specified in accordance
with Section 2.07, the Issuer hereby initially designates the Security Registrar Corporate Trust Office as the office to be maintained
by it for each such purpose. In case the Issuer shall fail to so designate or maintain any such office or agency or shall fail
to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices
may be served at the Security Registrar Corporate Trust Office.
The Issuer may also from time to time designate
one or more other offices or agencies where the Securities of one or more series may be presented or
surrendered
for any or all such purposes or where such notices or demands may be served and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner relieve the Issuer of any obligation to maintain
an office or agency in the Borough of Manhattan, The City of New York for Securities of any series for such purposes.
The Issuer will give written notice to the
Trustee of any such designation or rescission and of any such change in the location of any other office or agency.
Section 3.04. Appointment to Fill a Vacancy
in Office of Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in
the manner provided in Section 5.09, a Trustee, so that there shall at all times be a Trustee with respect to each series of Securities
hereunder.
Section 3.05. Payment Agents. Whenever
the Issuer shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will cause such
paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 3.05,
(a) that
it will comply with the provisions of the Trust Indenture Act applicable to it as a paying agent,
(b) that
it will hold all sums received by it as such agent for the payment of the principal of or interest, if any, on the Securities of
such series (whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series) in
trust for the benefit of the Holders of the Securities of such series or of the Trustee,
(c) that
it will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Securities of such series) to make
any payment of the principal of or interest on the Securities of such series when the same shall be due and payable, and
(d) that
it will pay any such sums so held in trust by it to the Trustee upon the Trustee’s written request at any time during the
continuance of the failure referred to in clause (c) above.
The Issuer will, on the Business Day prior
to each due date of the principal of or interest, if any, on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly
notify the Trustee in writing of any failure to take such action.
If the Issuer shall act as paying agent
with respect to the Securities of any series, it will, on or before each due date of the principal of or interest, if any, on the
Securities of such series, set aside, segregate and hold in trust for the benefit
of
the Holders of the Securities of such series a sum sufficient to pay such principal or interest so becoming due. The Issuer will
promptly notify the Trustee in writing of any failure to take such action.
Anything in this Section 3.05 to the contrary
notwithstanding, the Issuer may at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more
or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for
any such series by the Issuer or any paying agent hereunder, as required by this Section 3.05, such sums to be held by the Trustee
upon the trusts herein contained.
Anything in this Section 3.05 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this Section 3.05 is subject to the provisions of Sections
9.04 and 9.05.
Section 3.06. Compliance Certificates
from the Issuer. The Issuer will furnish to the Trustee on or before March 31 in each year (beginning with March 31, 2021),
if Securities are then Outstanding, a brief certificate (which need not comply with Section 10.05) from the principal executive,
financial or accounting officer of the Issuer as to his or her knowledge of the Issuer’s compliance with all conditions and
covenants under the Indenture (such compliance to be determined without regard to any period of grace or requirement of notice
provided under the Indenture) and if the Issuer shall not be in compliance, specifying such non-compliance and the nature and status
thereof of which such signatory may have knowledge.
The Issuer will deliver to the Trustee,
promptly upon becoming aware of (i) any default in the performance or observance of any covenant, agreement or condition contained
in this Indenture, or (ii) any default or Event of Default, an Officers’ Certificate specifying with particularity such default
or Event of Default and further stating what action the Issuer has taken, is taking or proposes to take with respect thereto.
Any notice required to be given under this
Section 3.06 shall be delivered to a Responsible Officer of the Trustee at the Trustee Corporate Trust Office.
Section 3.07. Securityholders Lists.
If and so long as the Trustee shall not be the Security Registrar for the Securities of any series, the Issuer will furnish
or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of
the Holders of the Securities of such series pursuant to Section 312 of the Trust Indenture Act (a) semi-annually not more than
15 days after each record date for the payment of interest on such Securities, as hereinabove specified, as of such record date
and on dates to be determined pursuant to Section 2.07 for non-interest bearing securities in each year, and (b) at such other
times as the Trustee may request in writing, within 30 days after receipt by the Issuer of any such request as of a date not more
than 15 days prior to the time such information is furnished.
Section 3.08. Preservation of Information;
Communication to Holders. The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses
of Holders contained in the most recent list furnished to the Trustee as provided in Section 3.07 and the names and addresses of
Holders received by the Trustee. The Trustee may destroy any list furnished to it as provided in Section 3.07 upon receipt of a
new list so furnished.
The rights of Holders to communicate with
other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges
of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder, by receiving and holding Securities,
agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee nor any agent of either of them shall be held accountable
by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
Section 3.09. Limitation on Liens.
(a) Nothing contained in this Indenture or in the Securities shall in any way restrict or prevent the Issuer or any
Subsidiary of the Issuer from incurring, assuming or guaranteeing any indebtedness; provided that the Issuer will not itself,
and will not permit any of its Restricted Subsidiaries to, incur, assume or guarantee indebtedness for money borrowed
(hereinafter in this Article 3 referred to as “Debt”), secured by a mortgage, pledge, security interest or lien
(mortgages, pledges, security interests and liens being hereinafter in this Article 3 referred to as a “mortgage”
or “mortgages”) upon any Principal Property or upon any shares of stock of or indebtedness of any Restricted
Subsidiary, without effectively providing that the Securities (together with, if the Issuer shall so determine, any other
Debt of the Issuer or such Restricted Subsidiary then existing or thereafter created ranking equally with the Securities)
shall be secured equally and ratably with (or prior to) such Debt, so long as such Debt shall be so secured. This Section
3.09(a) shall not apply to Debt secured by:
(i) mortgages
on property, shares of stock or indebtedness of any corporation existing at the time such corporation becomes a Restricted Subsidiary
of the Issuer; provided that such mortgages were not created in contemplation of such corporation becoming a Restricted Subsidiary;
(ii) mortgages
on property or shares of stock existing at the time of acquisition thereof or to secure the payment of all or any part of the purchase
price thereof or to secure any Debt incurred prior to, at the time of, or within 12 months after, in the case of shares of stock,
the acquisition of such shares and, in the case of property, the later of the acquisition, the completion of construction
(including
any improvements on an existing property) or the commencement of commercial operation of such property, which Debt is incurred
for the purpose of financing all or any part of the purchase price thereof;
(iii) mortgages
which secure Debt owing to the Issuer or to any of its Restricted Subsidiaries by any of the Issuer’s Restricted Subsidiaries
or the Issuer;
(iv) mortgages
existing at the date of this Indenture;
(v) mortgages
on any Principal Property to secure Debt incurred to finance all or part of the cost of the improvement, construction, alteration
or repair of any building, equipment or facilities or of any other improvements on, all or any part of such Principal Property,
if such Debt is incurred prior to, during, or within 12 months after completion of, such improvement, construction, alteration
or repair;
(vi) mortgages
on property owned or held by any corporation or on shares of stock or indebtedness of any corporation, in either case existing
at the time such corporation is merged into or consolidated or amalgamated with either the Issuer or a Restricted Subsidiary or
at the time of a sale, lease or other disposition of all or substantially all of the property of a corporation to the Issuer or
a Restricted Subsidiary; provided that such mortgages were not created in contemplation of such corporation (x) merging, consolidating
or amalgamating with the Issuer or a Restricted Subsidiary, or (y) selling, leasing or otherwise disposing of all of substantially
all of its property to the Issuer or a Restricted Subsidiary;
(vii) mortgages
arising by operation of law and not securing amounts more than 90 days overdue or otherwise being contested in good faith;
(viii) mortgages
arising solely by operation of law over any credit balance or cash held in any account with a financial institution;
(ix) rights
of financial institutions to offset credit balances in connection with the operation of cash management programs established for
the benefit of the Issuer and/or any Restricted Subsidiary;
(x) mortgages
incurred or deposits made in the ordinary course of business, including, but not limited to, (a) any mechanics’, materialmen’s,
carriers’, workmen’s, vendors’ or other like mortgages, (b) any mortgages securing amounts in connection with
workers’ compensation, unemployment insurance and other types of social security, and (c) any easements, rights-of-way, restrictions
and other similar charges;
(xi) mortgages
incurred or deposits made securing the performance of tenders, bids, leases, statutory obligations, surety and appeal bonds, government
contracts, performance and return-of-money bonds and other obligations of like nature incurred in the ordinary course of business;
(xii) mortgages
securing taxes or assessments or other applicable governmental charges or levies;
(xiii) any
extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any mortgage permitted
under the foregoing clauses (i) to (xii), inclusive, or of any Debt secured thereby; provided that the principal amount of Debt
secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement,
and that such extension, renewal or replacement mortgage shall be limited to all or any part of the same property or shares of
stock that secured the mortgage extended, renewed or replaced (plus improvements on such property), or property received or shares
of stock issued in substitution or exchange therefor; and
(xiv) mortgages
in favor of the Issuer or any Subsidiary of the Issuer.
The following types of transactions shall
not be deemed to create Debt secured by a mortgage within the meaning of those terms as defined above:
(i) mortgages
of property of the Issuer or any of its Restricted Subsidiaries in favor of the United States of America or any State thereof or
the District of Columbia, or the United Kingdom, or any other country, or any political subdivision of any of the foregoing, or
any department, agency or instrumentality of any of the foregoing, to secure partial, progress, advance or other payments pursuant
to the provisions of any contract or statute including, without limitation, mortgages to secure Debt of the pollution control or
industrial revenue bond type, or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase
price or cost of construction of the property subject to such mortgages.
(b) Notwithstanding
the provisions of clause (a) of this Section 3.09, the Issuer or any of its Restricted Subsidiaries may incur, assume or guarantee
Debt secured by a mortgage or mortgages which would otherwise be subject to the foregoing restrictions in an aggregate amount which,
together with all other such Debt of the Issuer and its Restricted Subsidiaries and their Attributable Debt in respect of Sale
and Lease-Back Transactions existing at such time (other than Attributable Debt in respect of Sale and Lease-Back Transactions
permitted because the Issuer or any Restricted Subsidiary would be entitled to incur, assume or guarantee such Debt secured by
a mortgage on the property to be leased without equally and ratably securing the Securities pursuant to clause (a) of this Section
3.09 and other than Sale and Lease-Back Transactions, the proceeds of which have been applied in accordance with clause (2) of
Section 3.09) does not
at
the time exceed 15% of Consolidated Net Tangible Assets as set forth in the consolidated financial statements contained in the
latest annual report to the shareholders of the Issuer.
(c) The
Trustee, subject to Sections 5.01 and 5.02 shall receive an Opinion of Counsel as conclusive evidence that any transaction complies
with the provisions of this Section 3.09. The foregoing is not intended to limit the generality of Section 5.02(c).
Section 3.10. Limitation on Sale
and Lease-back. (a) The Issuer will not itself, and it will not permit any of its Restricted Subsidiaries to,
enter into any arrangement with any Person providing for the leasing by the Issuer or such Restricted Subsidiary of any
Principal Property (except a lease for a temporary period not to exceed three years and except for leases between the Issuer
and a Restricted Subsidiary or between Restricted Subsidiaries) which has been or is to be sold or transferred by the Issuer
or such Restricted Subsidiary to such Person (herein referred to as a “Sale and Lease-Back Transaction”) unless,
after giving effect thereto, the aggregate amount of all Attributable Debt with respect to all such Sale and Lease-Back
Transactions plus all Debt of the Issuer or any of its Restricted Subsidiaries incurred, assumed or guaranteed and secured by
a mortgage or mortgages (with the exception of Debt secured by a mortgage or mortgages on property that the Issuer or a
Restricted Subsidiary would be entitled to incur, assume or guarantee without equally and ratably securing the Securities
pursuant to Section 3.09(a)) does not exceed 15% of Consolidated Net Tangible Assets. This Section 3.10 shall not apply to
any Sale and Lease-Back Transaction if:
(i) the
Issuer or such Restricted Subsidiary would be entitled to incur, assume or guarantee Debt secured by a mortgage or mortgages on
the Principal Property to be leased without equally and ratably securing the Securities pursuant to Section 3.09(a); or
(ii) the
Issuer within the 12 months preceding the sale or transfer or the 12 months following the sale or transfer, regardless of whether
such sale or transfer may have been made by the Issuer or by any of its Restricted Subsidiaries, applies, in the case of the sale
or transfer for cash, an amount equal to the net proceeds thereof and, in the case of a sale or transfer otherwise than for cash,
an amount equal to the fair value of the Principal Property so leased at the time of entering into such arrangement (as determined
by the Board of Directors of the Issuer), (x) to the retirement (other than any retirement of Debt owed to the Issuer or any of
its Restricted Subsidiaries or any retirement of Debt subordinated to the Securities) of indebtedness for money borrowed, incurred
or assumed by the Issuer or any Restricted Subsidiary which by its terms matures at, or is extendible or renewable at the option
of the obligor to, a date more than 12 months after the date of incurring, assuming or guaranteeing such Debt or (y) to investment
in any Principal Property or Principal Properties.
(b) The Trustee, subject to Sections 5.01
and 5.02, shall receive an Opinion of Counsel as conclusive evidence that any transaction complies with the provisions of this
Section 3.09. The foregoing is not intended to limit the generality of Section 5.02(c).
Section 3.11. Reports by the Issuer.
The Issuer covenants to file with the Trustee, within 15 days after the Issuer is required to file the same with the Commission,
copies of the annual reports and of the information, documents, and other reports which the Issuer may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute
actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein,
including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officers’ Certificates).
Section 3.12. Reports by the Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at
stated intervals of not more than 12 months shall be transmitted no later than July 15 in each calendar year following the date
hereof, so long as any Securities are Outstanding hereunder, and shall be dated as of a date convenient to the Trustee no more
than 60 nor less than 45 days thereto.
A copy of each such report shall, at the
time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with
the Commission and with the Issuer. The Issuer will notify the Trustee when any Securities are listed on any stock exchange.
Article
4
Remedies Of The Trustee And Securityholders On Event Of Default
Section 4.01. Event of Default Defined;
Acceleration of Maturity; Waiver of Default. “Event of Default” with respect to Securities of any series wherever
used herein, means each one of the following events which shall have occurred and be continuing (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default
in the payment of any installment of interest upon any of the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default
in the payment of all or any part of the principal on any of the Securities of such series as and when the same shall become due
and payable either at maturity, upon redemption, by declaration or otherwise; or
(c) default
in the performance or breach of any covenant or warranty of the Issuer in respect of the Securities of such series (other than
a covenant or warranty in respect of the Securities of such series a default in whose performance or whose breach is elsewhere
in this Section 4.01 specifically dealt with), and continuance of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of all series affected thereby, 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) a
court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Issuer in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the Issuer or for any substantial part of the property of
the Issuer or (other than under or in connection with a scheme of amalgamation or reconstruction not involving bankruptcy or insolvency)
ordering the winding up or liquidation of the Issuer’s affairs, and such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(e) the
Issuer shall institute proceedings to be adjudicated a bankrupt or insolvent, or the Issuer shall consent to the institution of
bankruptcy or insolvency proceedings against itself or (other than under or in connection with a scheme of amalgamation or reconstruction
not involving bankruptcy or insolvency) the passing of a resolution that the Issuer be wound up or the filing of a petition or
answer or consent seeking reorganization or relief under any applicable bankruptcy, insolvency or similar law of the United States
of America or the United Kingdom, or the consent by the Issuer to the filing of such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator or similar official of the Issuer or for any substantial part of the Issuer’s
property, or make any general assignment for the benefit of creditors; or
(f) (i)
any indebtedness for borrowed money of the Issuer or any of its Subsidiaries is not paid when due or within any originally applicable
grace period
or
(ii) any such indebtedness for borrowed money of the Issuer or any of its Subsidiaries becoming due and payable prior to its stated
maturity by reason of an Event of Default; provided that no cross-default will occur if (x) the indebtedness is of any Person
acquired by the Issuer or one of its Subsidiaries which is incurred under the arrangements in existence at the date of acquisition
and the Event of Default in respect thereof is no longer continuing one month after the acquisition or (y) the amount of indebtedness
referred to in clauses (i) and/or (ii) above individually or in the aggregate is less than $50,000,000 (or its equivalent in any
other currency or currencies); or
(g) any
other Event of Default provided in the supplemental indenture or resolution of the Board of Directors of the Issuer under which
such series of Securities is issued or in the form of Security for such series.
If an Event of Default described in clauses
(a), (b), (c) or (f) (if the Event of Default under clause (c) is with respect to less than all series of Securities then Outstanding)
or (g) above occurs and is continuing with respect to a series of Securities, then, and in each and every such case, unless the
principal of all of the Securities of such series shall have already become due and payable, either the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding hereunder (each such series
voting as a separate class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the
entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount
as may be specified in the terms of such series) of all Securities of such series and the interest accrued thereon, if any, to
be due and payable immediately, and upon any such declaration the same shall become immediately due and payable. If an Event of
Default described in clause (c) (if the Event of Default under clause (c), is with respect to all series of Securities then Outstanding),
(d) or (e) occurs and is continuing, then and in each and every such case, unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all the
Securities then Outstanding hereunder (treated as one class), by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if any Securities are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof) of all the Securities then Outstanding and interest accrued thereon,
if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject
to the condition that if, at any time after the principal (or, if the Securities are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof) of the Securities of any series (or of all the Securities, as the case
may be) shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall
have been obtained or entered as hereinafter
provided,
the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all the
Securities of such series (or of all the Securities, as the case may be) and the principal of any and all Securities of such series
(or of all the Securities, as the case may be) which shall have become due otherwise than by acceleration (with interest upon
such principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series (or at the respective rates of interest or Yields to Maturity of all the Securities, as the case
may be) to the date of such payment or deposit) and such amount as shall be sufficient to cover reasonable compensation to the
Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee
except as a result of negligence or bad faith, and if any and all Events of Default under the Indenture, other than the non-payment
of the principal of Securities which shall have become due by acceleration, shall have been cured, waived or otherwise remedied
as provided herein, then and in every such case the Holders of a majority in aggregate principal amount of all the Securities
of such series, each series voting as a separate class (or of all the Securities, as the case may be, voting as a single class),
then Outstanding, by written notice to the Issuer and to the Trustee, may waive all defaults with respect to such series (or with
respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences, but no such waiver
or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if
a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant
to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal
amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall
be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder,
shall constitute payment in full of such Original Issue Discount Securities.
Section 4.02. Collection of Indebtedness
by Trustee; Trustee May Prove Debt. The Issuer covenants that (a) in case default shall be made in the payment of any installment
of interest on any of the Securities of any series when such interest shall have become due and payable, and such default shall
have continued for a period of 30 days or (b) in case default shall be made in the payment of all or any part of the principal
of any of the Securities of any series when the same shall have become due and payable, whether upon maturity of the Securities
of such series or upon any redemption or by declaration or otherwise, then upon demand of the Trustee, the Issuer will pay to the
Trustee for the benefit of the Holders of the Securities of such series the whole amount that then shall have become due
and
payable on all Securities of such series for principal or interest, as the case may be (with interest to the date of such payment
upon the overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments
of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such series); and in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including reasonable compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and any expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee,
the Issuer may pay the principal of and interest on the Securities of any series to the Holders, whether or not the principal of
and interest on the Securities of such series shall be overdue.
In case the Issuer shall fail forthwith
to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered
to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer
or other obligor upon such Securities and collect in the manner provided by law out of the property of the Issuer or other obligor
upon such Securities, wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings
relative to the Issuer or any other obligor upon the Securities under any applicable bankruptcy, insolvency or other similar law,
or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of the Issuer or such other obligor on the property of the Issuer or such other obligor,
or in case of any other comparable judicial proceedings relative to the Issuer or other obligor upon the Securities of any series,
or to the creditors or property of the Issuer or such other obligor, the Trustee, irrespective of whether the principal of any
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 pursuant to the provisions of this Section 4.02 shall be entitled and empowered, by intervention in
such proceedings or otherwise:
(a) to
file and prove a claim or claims for the whole amount of principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) owing and unpaid
in respect of the Securities of any series, 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 reasonable compensation
to
the Trustee and each predecessor Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a result of negligence
or bad faith) and of the Securityholders allowed in any judicial proceedings relative to the Issuer or other obligor upon the
Securities of any series, or to the creditors or property of the Issuer, or such other obligor,
(b) unless
prohibited by applicable law and regulations, to vote on behalf of the Holders of the Securities of any series in any election
of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or
person performing similar functions in comparable proceedings, and
(c) to
collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Securityholders and of the Trustee on their behalf; and any trustee, receiver, or liquidator,
custodian or other similar official is hereby authorized by each of the Securityholders to make payments to the Trustee, and, in
the event that the Trustee shall consent to the making of payments directly to the Securityholders, to pay to the Trustee such
amounts as shall be sufficient to cover reasonable compensation to the Trustee, each predecessor Trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith and all other amounts due to the Trustee or any predecessor Trustee pursuant
to Section 5.06.
Nothing herein contained shall be deemed
to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any Holder thereof,
or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding except, as aforesaid,
to vote for the election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims
under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities
or the production thereof on any trial or other proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment
of the expenses, disbursements and compensation of the Trustee, each predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the Securities in respect of which such action was taken.
In any proceedings brought by the Trustee
(and also any proceedings involving the interpretation of any provision of this Indenture to which the
Trustee
shall be a party) the Trustee shall be held to represent all the Holders of the Securities in respect of which such action was
taken, and it shall not be necessary to make any Holders of such Securities parties to any such proceedings.
Section 4.03. Application of Proceeds.
Any moneys collected by the Trustee pursuant to this Article 4 or, after an Event of Default, any money or other property distributable
in respect of the Issuer’s obligations under this Indenture in respect of any series of Securities shall be applied in the
following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys or property on account
of principal or interest, upon presentation of the several Securities in respect of which moneys have been collected and stamping
(or otherwise noting) thereon the payment, or issuing Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due
to the Trustee (including each predecessor trustee) under Section 5.06;
SECOND: In case the principal of the Securities
of such series in respect of which moneys or other property has been collected shall not have become and be then due and payable,
to the payment of interest on the Securities of such series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest
at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in
such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities
of such series in respect of which moneys or other property has been collected shall have become and shall be then due and payable,
to the payment of the whole amount then owing and unpaid upon all the Securities of such series for principal and interest, with
interest upon the overdue principal, and (to the extent that such interest has been collected by the Trustee) upon overdue installments
of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series; and in case such moneys or other property shall be insufficient to pay in full the whole amount
so due and unpaid upon the Securities of such series, then to the payment of such principal and interest or yield to maturity,
without preference or priority of principal over interest or yield to maturity, or of interest or Yield to Maturity over principal,
or of any installment of interest over any other installment of interest, or of any Security of such series over any other Security
of such series, ratably to the aggregate of such principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder,
if any, to the Issuer or any other person lawfully entitled thereto.
Section 4.04. Suits for Enforcement.
In case an Event of Default has occurred, has not been waived and is continuing, the Trustee may in its discretion proceed
to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted
in this Indenture or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Section 4.05. Restoration of Rights on
Abandonment of Proceedings. In case the Trustee or any Holder shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee
or such Holder, then and in every such case the Issuer, the Trustee and such Holder shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Trustee and the Securityholders shall continue
as though no such proceedings had been taken.
Section 4.06. Limitations on suits by
Securityholders. No Holder of any Security of any series shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect
to this Indenture, or for the appointment of a trustee, receiver, liquidator, custodian or other similar official or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of not less than 25% in aggregate principal amount of the Securities
of such series then Outstanding shall have made written request upon the Trustee to institute such action or proceedings in its
own name as trustee hereunder and shall have offered to the Trustee such indemnity and/or security reasonably satisfactory to the
Trustee as it may require against the costs, expenses and liabilities to be incurred therein or thereby and the Trustee for 60
days after its receipt of such notice, request and offer of indemnity and/or security shall have failed to institute any such action
or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section
4.09; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with every other
taker and Holder and the Trustee, that no one or more Holders of Securities of any series shall have any right in any manner whatever
by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other such Holder
of Securities, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under
this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all
Holders
of Securities of the applicable series. For the protection and enforcement of the provisions of this Section 4.06, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section 4.07. Unconditional Right of
Securityholders to Institute Certain Suits. Notwithstanding any other provision in this Indenture and any provision of any
Security, the right of any Holder of any Security to receive payment of the principal of and interest, if any, on such Security
on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 4.08. Powers and Remedies Cumulative;
Delay or Omission Not Waiver of Default. Except as provided in Section 4.06 no right or remedy herein conferred upon or reserved
to the Trustee or to the Securityholders is intended to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of
any Securityholder to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall
impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein; and,
subject to Section 4.06 every power and remedy given by this Indenture or by law to the Trustee or to the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
Section 4.09. Control by Securityholders.
The Holders of a majority in aggregate principal amount of the Securities of each series affected (with each series voting
as a separate class) at the time Outstanding 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 by this Indenture; provided that such direction shall not be otherwise than in accordance with law and the provisions
of this Indenture and provided further that (subject to the provisions of Section 5.01) the Trustee shall have the right to decline
to follow any such direction if the Trustee, being advised by counsel, shall determine that the action or proceeding so directed
may not lawfully be taken or if the Trustee in good faith by its board of directors, the executive committee, or a trust committee
of directors or Responsible Officers of the Trustee shall determine that the action or proceedings so directed would involve the
Trustee in personal liability or if the Trustee in good faith shall so determine that the actions or forebearances specified in
or pursuant to such direction would be unduly prejudicial to the interests of Holders
of
the Securities of all series so affected not joining in the giving of said direction, it being understood that (subject to Section
5.01) the Trustee shall have no duty to ascertain whether or not such actions or forebearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the
right of the Trustee in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such
direction or directions by Securityholders.
Section 4.10. Waiver of Past Defaults.
Prior to the declaration of the acceleration of the maturity of the Securities of any series as provided in Section 4.01, the
Holders of a majority in aggregate principal amount of the Securities of such series at the time Outstanding may on behalf of the
Holders of all the Securities of such series waive any past default or Event of Default described in clause (g) of Section 4.01,
or, in the case of an event specified in clause (c) of Section 4.01 (if the Event of Default under clause (c) relates to less than
all series of Securities then Outstanding), the Holders of a majority in aggregate principal amount of the Securities of each series
then Outstanding affected thereby (each series voting as a separate class) may waive any such default or Event of Default, or,
in the case of an event specified in clause (c) (if the Event of Default under clause (c) relates to all series of Securities then
Outstanding), (d) or (e) of Section 4.01 the Holders of Securities of a majority in principal amount of all the Securities then
Outstanding (voting as one class) may waive any such default or Event of Default, and its consequences, except a default in respect
of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder of each Security affected.
In the case of any such waiver, the Issuer, the Trustee and the Holders of the Securities of such series shall be restored to their
former positions and rights hereunder, respectively, and such default shall cease to exist and be deemed to have been cured and
not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured, and not to have occurred for
every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon.
Section 4.11. Trustee to Give Notice
of Default, but May Withhold in Certain Circumstances. The Trustee shall give to the Securityholders of any series, as the
names and addresses of such Holders appear on the registry books, notice by mail of all defaults known to the Trustee which have
occurred with respect to such series, such notice to be transmitted within 90 days after the occurrence thereof, unless such defaults
shall have been cured before the giving of such notice (the term “default” or “defaults” for the purposes
of this Section 4.11 being hereby defined to mean any event or condition which is, or with notice or lapse of time or both would
become, an Event of Default); provided that, except in the case of default in the payment of the principal of or interest on any
of the Securities of such series, or in the payment of any sinking or purchase fund installment with respect to the Securities
of such series, the Trustee shall be
protected
in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors
or trustees and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series.
Section 4.12. Right of Court to Require
Filing of Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Security by his or her 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 4.12 shall
not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder or group of Securityholders of any
series holding in the aggregate more than 10% in aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under Section 4.01(c) (if the suit relates to Securities of more than one but less than all series),
10% in aggregate principal amount of Securities Outstanding affected thereby, or in the case of any suit relating to or arising
under clauses (c) (if the suit relates to all the Securities then Outstanding), (d) or (e) of Section 4.01 10% in aggregate principal
amount of all Securities Outstanding, or to any suit instituted by any Securityholder for the enforcement of the payment of the
principal of or interest, if any, on any Security on or after the due date expressed in such Security.
Article
5
Concerning The Trustee.
Section 5.01. Duties and Responsibilities
of the Trustee; During Default; Prior to Default.
(a) Prior
to the occurrence of an Event of Default with respect to the Securities of any series and after the curing or waiving of all such
Events of Default with respect to such series which may have occurred:
(i) the
Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in
the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but in the case of any such statements, certificates or opinions
which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts, statements, opinions or conclusions stated therein).
(b) In
case an Event of Default with respect to the Securities of a series has occurred (which has not been cured or waived) the Trustee
shall exercise such of the rights and powers vested in it by this Indenture with respect to such series, 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 his or
her own affairs.
(c) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i)
this Subsection (c) shall not be construed to limit the effect of Subsections (a) and (d) of this Section 5.01;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 4.09 relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.
(d) None
of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there shall be
reasonable ground for believing that the repayment of such funds or adequate indemnity against such liability is not reasonably
assured to it.
(e) Whether
or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this Section 5.01.
(f) The
provisions of this Section 5.01 are in furtherance of and subject to Sections 315 and 316 of the Trust Indenture Act.
Section 5.02. Certain Rights of the Trustee.
Subject to the provisions of Section 5.01:
(a) the
Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officers’ Certificate or
any other certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note,
coupon, security, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any
request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officers’ Certificate
(unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors of the
Issuer may be evidenced to the Trustee by a Board Resolution;
(c) 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 to be taken by it hereunder in good faith and in reliance thereon;
(d) the
Trustee shall be under no obligation to exercise any of the rights, trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall
have offered to the Trustee security and/or indemnity satisfactory to the Trustee, against the costs, expenses and liabilities
which might be incurred by it in compliance with such request, order or direction;
(e) the
Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this Indenture;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or
other paper or document unless requested in writing so to do by the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then Outstanding; provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee
may require reasonable security and/or indemnity against such expenses or liabilities as a condition to proceeding; the reasonable
expenses of every such investigation shall be paid by the Issuer or, if paid by the Trustee or any predecessor trustee, shall be
repaid by the Issuer upon demand; and
(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
(h) the
Trustee shall not be deemed to have notice or be charged with knowledge of any default or Event of Default unless written notice
of such default or Event of Default from the Issuer or any Holder of a Security is received by a Responsible Officer of the Trustee
at the Trustee Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(i) the
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other
Person employed to act hereunder;
(j) the
Trustee may request that the Issuer deliver a certificate setting forth the names of individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture, which certificate may be signed by any person authorized to
sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered
and not superseded;
(k) anything
in this Indenture notwithstanding, in no event shall the Trustee be liable for special, indirect, punitive or consequential or
other similar loss or damage of any kind whatsoever (including but not limited to loss of profit), even if the Trustee has been
advised as to the likelihood of such loss or damage and regardless of the form of action;
(l) the
Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture
arising out of or caused, directly or indirectly, by circumstances beyond its control, including, without limitation, any provision
of any law or regulation or any act of any governmental authority, acts of God; earthquakes; fire; flood; terrorism; wars and other
military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software)
or communication services; accidents; labor disputes; acts of civil or military authority and governmental action;
(m) no
provision of this Indenture shall be deemed to impose any duty or obligation on the Trustee to perform any act or acts, receive
or obtain any interest in property or exercise any interest in property, or exercise any right, power, duty or obligation conferred
or imposed on it in any jurisdiction in which it shall be illegal, or in which the Trustee shall be unqualified or incompetent
in accordance with applicable law, to perform any such act or acts, to receive or obtain any such
interest
in property or to exercise any such right, power, duty or obligation; and no permissive or discretionary power or authority available
to the Trustee shall be construed to be a duty;
(n) Notwithstanding
any other provision of this Agreement, the Trustee shall be entitled to make a deduction or withholding from any payment which
it makes under this Indenture for or on account of any present or future taxes, duties or charges if and to the extent so required
by any applicable law and any current or future regulations or agreements thereunder or official interpretations thereof or any
law implementing an intergovernmental approach thereto or by virtue of the relevant holder failing to satisfy any certification
or other requirements in respect of the Securities, in which event the Trustee shall make such payment after such withholding or
deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted and shall have no
obligation to gross up any payment hereunder or pay any additional amount as a result of such withholding tax.
The
Issuer hereby covenants with the Trustee that it will provide the Trustee with sufficient information so as to enable the Trustee to
determine whether or not the Trustee is obliged, in respect of any payments to be made by it pursuant to this Indenture, to make
any withholding or deduction pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986,
as amended (the “Code”) or otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations,
or agreements thereunder or official interpretations thereof or any intergovernmental agreement between the United States of America
and another jurisdiction facilitating the implementation thereof (or any law implementing such an intergovernmental agreement);
and
(o) the
permissive rights of the Trustee enumerated herein shall not be construed as duties.
Section 5.03. Trustee Not Responsible
for Recitals, Disposition of Securities or Application of Proceeds Thereof. The recitals contained herein and in the Securities,
except the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer, and the Trustee assumes
no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Issuer of any of the Securities
or of the proceeds thereof. The Trustee shall not be responsible to make any calculation with respect to any matter under this
Indenture. The Trustee shall have no duty to monitor or investigate the Issuers’ compliance with or the breach of, or cause
to be performed or observed, any representation, warranty, or covenant, or agreement of any Person, other than the Trustee, made
in this Indenture.
Section 5.04. Trustee and Agents May
Hold Securities; Collections, Etc. The Trustee or any agent of the Issuer, or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities with the same rights it would have if it were not the Trustee or such agent and may
otherwise deal with the Issuer and receive, collect, hold and retain collections from the Issuer with the same rights it would
have if it were not the Trustee or such agent.
Section 5.05. Moneys Held by Trustee.
Subject to the provisions of Sections 9.04 and 10.04 hereof, all moneys received by the Trustee or any paying agent shall,
until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated
from other funds except to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of the Issuer
or the Trustee shall be under any liability for interest on any moneys received by it hereunder. If and when the Trustee shall
be or become a creditor of the Issuer (or any other obligor on the Securities), the Trustee shall be subject to the provisions
of the Trust Indenture Act regarding the collection of claims against the Issuer (or any such other obligor).
Section 5.06. Compensation and Indemnification
of Trustee and its Prior Claim. The Issuer covenants and agrees:
(a) to
pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation (which shall not be limited
by any provision of law in regard to the compensation of a trustee of an express trust);
(b) to
pay or reimburse the Trustee and each predecessor Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of the Trustee in accordance with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all agents and other Persons not regularly in its employ)
except to the extent any such expense, disbursement or advance may arise from its negligence or bad faith; and
(c) to
indemnify the Trustee and each predecessor Trustee for, and to hold it harmless against, any loss, liability, damage, claim or
expense, including fees and expenses of counsel, including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee), arising out of or in connection with the acceptance or administration of this Indenture or the trust or
trusts hereunder and the performance of its duties hereunder, including the costs and expenses of defending itself against or investigating
any claim (whether asserted by the Issuer, or any Holder or any other Person) or liability in connection with the exercise or performance
of any of its powers or duties hereunder, or in connection with enforcing the provisions of this Section 5.06, except to the extent
such loss, liability, damage, claim or expense is due to the negligence or willful misconduct of the Trustee or such predecessor
Trustee.
The obligations of the Issuer under this
Section 5.06 to compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive
the resignation or removal of the Trustee, the satisfaction and discharge of this Indenture and the termination for any reason
of this Indenture.
As security for the performance of the obligations
of the Issuer under this Section 5.06 the Trustee shall have a lien prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities, and the Securities
are hereby subordinated to such senior claim.
In addition to, but without prejudice to
its other rights under this Indenture, when the Trustee incurs any expenses or renders any services in connection with an Event
of Default specified in Section 4.01(d) or 4.01(e), such expenses (including the reasonable charges and expenses of its counsel)
and the compensation for such services are intended to constitute expenses of administration under the United States Bankruptcy
Code (Title 11 of the United States Code) or any federal or state bankruptcy, insolvency or other similar law.
“Trustee”
for purposes of this Section 5.06 shall include any predecessor Trustee; provided, however, that the negligence, willful misconduct
or bad faith of any Trustee hereunder shall not affect the rights of any other Trustee hereunder.
Section 5.07. Right of Trustee to Rely
on Officers’ Certificate, Etc. Subject to Sections 5.01 and 5.02, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering
or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may,
in the absence of bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’
Certificate delivered to the Trustee, and such certificate, in the absence of bad faith on the part of the Trustee, shall be a
full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith
thereof.
Section 5.08. Persons Eligible for Appointment
as Trustee. The Trustee for each series of Securities hereunder shall at all times be a Person organized and doing business
under the laws of the United States of America or of any State thereof or the District of Columbia having a combined capital and
surplus of at least $50,000,000, and which is eligible in accordance with the provisions of Section 310(a) of the Trust Indenture
Act. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of a Federal, State
or District of Columbia supervising or examining authority, then for the
purposes
of this Section 5.08, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 5.08, the Trustee shall resign immediately in the manner and with the effect specified in
Section 5.09.
The Trustee shall comply with Section 310(b)
of the Trust Indenture Act; provided, however, that there shall be excluded from the operation of Section 310(b)(1) of the Trust
Indenture Act any indenture or indentures under which other securities or certificates of interest or participation in other securities
of the Issuer are outstanding if the requirements for such exclusion set forth in Section 310(b)(1) of the Trust Indenture Act
are met.
Section 5.09. Resignation and
Removal; Appointment of Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all series of Securities by giving written notice of resignation to the
Issuer and by mailing notice thereof by first class mail to Holders of the applicable series of Securities at their last
addresses as they shall appear on the Security Register. Upon receiving such notice of resignation, the Issuer shall promptly
appoint a successor trustee or trustees with respect to the applicable series by written instrument in duplicate, executed by
authority of the Board of Directors of the Issuer, one copy of which instrument shall be delivered to the resigning Trustee
and one copy to the successor trustee or trustees. If no successor trustee shall have been so appointed with respect to any
series and have accepted appointment within 30 days after the mailing of such notice of resignation, the resigning trustee
may petition any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has
been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the
provisions of Section 4.11, on behalf of himself or herself and all others similarly situated, petition any such court for
the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In
case at any time any of the following shall occur:
(i) the
Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act with respect to any series of Securities
after written request therefor by the Issuer or by any Securityholder who has been a bona fide Holder of a Security or Securities
of such series for at least six months; or
(ii) the
Trustee shall cease to be eligible in accordance with the provisions of Section 310(a) of the Trust Indenture Act and shall fail
to resign after written request therefor by the Issuer or by any Securityholder;
(iii) the
Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver or liquidator of the Trustee or of its property shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation; or
(iv) the
Trustee shall fail to perform its obligations to the Issuer under the Indenture in any material respect;
then, in any such case, the Issuer may remove the Trustee with
respect to any or all series of Securities and appoint a successor trustee for such series by written instrument, in duplicate,
executed by order of the Board of Directors of the Issuer, one copy of which instrument shall be delivered to the Trustee so removed
and one copy to the successor trustee, or, other than in the case of paragraph (b)(iv) above and subject to Section 315(e) of the
Trust Indenture Act, any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for
at least six months may on behalf of himself or herself and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The
Holders of a majority in aggregate principal amount of the Securities of each series at the time Outstanding may at any time remove
the Trustee with respect to Securities of such series and appoint a successor trustee with respect to the Securities of such series
by delivering to the Trustee so removed, to the successor trustee so appointed and to the Issuer the evidence provided for in Section
6.01 of the action in that regard taken by the Securityholders.
(d) Any
resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 5.09(b) shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 5.10.
Section 5.10. Acceptance of Appointment
by Successor Trustee. Any successor trustee appointed as provided in Section 5.09 shall execute and deliver to the Issuer and
to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations with respect to such series
of its predecessor hereunder, with like effect as if originally named as trustee for such series hereunder; but, nevertheless,
on the written request of the Issuer or of the successor trustee, upon payment of any amounts due to it pursuant
to
Section 5.06, the trustee ceasing to act shall, subject to Section 9.04 pay over to the successor trustee all moneys at the time
held by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers,
duties and obligations. Upon request of any such successor trustee, the Issuer shall execute any and all instruments in writing
for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing
to act shall, nevertheless, retain a prior lien upon all property or funds held or collected by such trustee to secure any amounts
then due it pursuant to the provisions of Section 5.06.
If a successor trustee is appointed with
respect to the Securities of one or more (but not all) series, the Issuer, the predecessor trustee and each successor trustee with
respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor
trustee with respect to the Securities of any series as to which the predecessor trustee is not retiring shall continue to be vested
in the predecessor trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each such trustee shall
be trustee of a trust or trusts under separate indentures.
No successor trustee with respect to any
series of Securities shall accept appointment as provided in this Section 5.10 unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 5.08.
Upon acceptance of appointment by any successor
trustee as provided in this Section 5.10, the Issuer shall mail notice thereof by first-class mail to the Holders of Securities
of any series for which such successor trustee is acting as trustee at their last addresses as they shall appear in the Security
Register. If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by
the preceding sentence may be combined with the notice called for by Section 5.09. If the Issuer fails to mail such notice within
10 days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Issuer.
Section 5.11. Merger, Conversion, Consolidation
or Succession to Business of Trustee. Any Person into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any
Person succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be eligible under the provisions of Section 5.08 without the execution or filing
of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the
Trustee shall succeed to the trusts created by this Indenture any of the Securities of any series shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee and
deliver such Securities so authenticated; and, in case at that time any of the Securities of any series shall not have been authenticated,
any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of
the successor Trustee; and in all such cases such certificate shall have the full force which it is, anywhere in the Securities
of such series or in this Indenture, provided that the certificate of the Trustee shall have; provided, that the right to adopt
the certificate of authentication of any predecessor Trustee or to authenticate Securities of any series in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Article
6
Concerning The Securityholders
Section 6.01. Evidence of Action Taken
by Securityholders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this
Indenture to be given or taken by a specified percentage in principal amount of the Securityholders of any or all series of the
Securities may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified
percentage of Securityholders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Sections
5.01 and 5.02) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Article 6.
Section 6.02. Proof of Execution of Instruments
and of Holding of Securities; Record Date. Subject to Sections 5.01 and 5.02, the execution of any instrument by a Securityholder
or his or her agent or proxy may be proved in accordance with such reasonable rules and regulations as may be prescribed by the
Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Securities shall be proved by the Security Register
or by a certificate of the registrar thereof. The Issuer may, but shall not be obligated to, set a record date for purposes of
determining the identity of Securityholders of any series entitled to vote or consent to any action referred to in Section 6.01,
which record date may be set at any time or from time to time by notice to the Trustee. If a record date is fixed, then notwithstanding
Section 6.01 and Section 6.05, those persons who were Securityholders 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 to take any such action, whether
or not such persons continue to be Securityholders after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
Section 6.03. Holders to be Treated as
Owners. The Issuer, the Trustee and any agent of the Issuer or the Trustee may deem and treat the person in whose name any
Security shall be registered upon the Security Register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and, subject to the provisions of this Indenture, interest on such Security and for
all other purposes; and neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such person, or upon his or her order, shall be valid, and, to the extent
of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Security.
Section 6.04. Securities Owned by Issuer
Deemed Not Outstanding. In determining whether the Holders of the requisite aggregate principal amount of Outstanding Securities
of any or all series have concurred in any request, demand, authorization, direction, notice, consent, waiver or other action by
Securityholders under this Indenture, Securities which are owned by the Issuer or any other obligor on the Securities with respect
to which such determination is being made or by any person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer or any other obligor on the Securities with respect to which such determination is being
made shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose
of determining whether the Trustee shall be protected in relying on any such action only Securities which a Responsible Officer
the Trustee knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to
such Securities and that the pledgee is not the Issuer or any other obligor upon the Securities or any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities.
In case of a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made by the Trustee
in accordance with such advice. Upon request of the Trustee, the Issuer shall promptly furnish to the Trustee Officers’ Certificates
listing and identifying all Securities, if any, known by the Issuer to be owned or held by or for the account of any of the above-described
persons; and, subject to Sections 5.01 and 5.02, the Trustee shall be entitled to accept such Officers’ Certificates as conclusive
evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose
of any such determination.
Section 6.05. Right of Revocation of
Action Taken. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 6.01, of the taking
of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action, any Holder of a Security the serial number or other distinguishing
symbol of which is shown by the evidence to be included among the serial numbers or other distinguishing symbols of the Securities
the Holders of which have consented to such action may, by filing written notice at the Trustee Corporate Trust Office and upon
proof of holding as provided in this Article 6, revoke such action so far as concerns such Security. Except as aforesaid any such
action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners
of such Security and of any Securities issued in exchange or substitution therefor or on registration of transfer thereof, irrespective
of whether or not any notation in regard thereto is made upon any such Security. Any action taken by the Holders of the percentage
in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection
with such action shall be conclusively binding upon the Issuer, the Trustee and the Holders of all the Securities affected by such
action.
Article
7
Supplemental Indentures
Section 7.01. Supplemental Indentures
Without Consent of Securityholders. The Issuer when authorized by a resolution of its Board of Directors, and the Trustee may
from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions
of the Trust Indenture Act as in force on the date of the execution thereof) for one or more of the following purposes:
(a) to
convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities of one or more series any property or
assets;
(b) to
evidence the succession of another corporation to the Issuer, or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Issuer, as the case may be, pursuant to Article 8;
(c) 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, pursuant to the requirements of Section 5.10;
(d) to
add to the covenants of the Issuer such further covenants, restrictions, conditions or provisions (and if such further covenants,
restrictions, conditions or provisions are to be for the benefit of less than all series of Securities, stating that such covenants,
restrictions, conditions or provisions are expressly being included solely for the benefit of such series) as the Board of Directors
of the Issuer and the Trustee shall consider to be for the protection of the Holders of Securities, and to make the occurrence,
or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event
of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided,
that in respect of any such additional covenant, restriction, condition or provision such supplemental indenture may provide for
a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon
such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount of the Securities of
such series to waive such an Event of Default;
(e) to
cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective
or inconsistent with any other provision contained herein or in any supplemental indenture; or to make such other provisions in
regard to matters or questions arising under this Indenture or under any supplemental indenture as the Board of Directors may deem
necessary or desirable and which shall not adversely affect the interests of the Holders of the Securities in any material respect;
(f) to
establish the form or terms of Securities of any series as permitted by Section 2.01 and Section 2.07;
(g) to
add or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance
of Securities in uncertificated form, provided that any such action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect; and
(h) to
add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that
any such addition, change or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution
of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such
Security with respect to such provision or (ii) shall become effective only when there is no Security Outstanding.
The Trustee is hereby authorized to join
with the Issuer in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations
which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the
Trustee
shall not be obligated to enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise.
Any supplemental indenture authorized by
the provisions of this Section 7.01 may be executed without the consent of the Holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 7.02.
Promptly after the execution by the Issuer
and the Trustee of any supplemental indenture pursuant to the provisions of this Section 7.01, the Issuer shall mail a notice thereof
by first class mail to the Holders of Securities of each series affected thereby at their addresses as they shall appear on the
Security Register setting forth in general terms the substance of such supplemental indenture. Any failure of the Issuer to mail
such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Section 7.02. Supplemental Indentures
with Consent of Securityholders. With the consent (evidenced as provided in Article 6) of the Holders of not less than majority
in aggregate principal amount of the Securities at the time Outstanding of all series affected by such supplemental indenture (each
affected series voting as a separate class), the Issuer when authorized by a resolution of its Board of Directors, and the Trustee
may, from time to time and at any time, enter into an indenture or indentures supplemental hereto (which shall conform to the provisions
of the Trust Indenture of 1939 as in force at the date of execution thereof) for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Holders of the Securities of each such series; provided, that no such supplemental indenture shall (a) extend
the final maturity of any Security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of
interest, if any, thereon, or reduce any amount payable on redemption thereof or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon an acceleration of the maturity thereof pursuant to Section 4.01 or
the amount thereof provable in bankruptcy pursuant to Section 4.02, or impair or affect the right of any Securityholder to institute
suit for the payment thereof or, if the Securities provide therefor, any right of repayment at the option of the Securityholder
without the consent of the Holder of each Security so affected, (b) reduce the aforesaid percentage of Securities of any series,
the consent of the Holders of which is required for any such supplemental indenture, without the consent of the Holders of each
Security so affected or (c) change in any manner adverse to the Holders of the Securities the terms and conditions of the obligations
of the Issuer in respect of the due and punctual payment of the principal thereof and interest thereon or any sinking fund payments
provided in respect thereof, without the consent of the Holder of each Security so affected.
A supplemental indenture which changes or
eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or
more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of
any other series.
Upon the request of the Issuer accompanied
by a copy of a resolution of the Board of Directors certified by the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid and other documents, if any, required by Section 6.01 the Trustee shall join with the Issuer in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent
of the Securityholders under this Section 7.02 to approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer
and the Trustee of any supplemental indenture pursuant to the provisions of this Section 7.02, the Issuer shall mail a notice thereof
by first class mail to the Holders of Securities of each series affected thereby at their addresses as they shall appear on the
Security Register setting forth in general terms the substance of such supplemental indenture. Any failure of the Issuer to mail
such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Section 7.03. Effect of Supplemental
Indentures. Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and
be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Issuer and the Holders of Securities of each series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section 7.04. Documents to be Given to
Trustee. The Trustee, subject to the provisions of Sections 5.01 and 5.02, shall receive Officers’ Certificates and Opinions
of Counsel, as appropriate, as conclusive evidence that any supplemental indenture executed pursuant to this Article 7 is authorized
and
permitted
by this Indenture and complies with the applicable provisions of this Indenture and an Opinion of Counsel to the effect that such
supplemental indenture is enforceable against the Issuer in accordance with its terms, subject to then customary exceptions.
Section 7.05. Notation on Securities
in Respect of Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article 7 may bear a notation in form approved by the Trustee for such series as to
any matter provided for by such supplemental indenture. If the Issuer or the Trustee shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and the Boards of Directors of the Issuer, to any modification
of this Indenture contained in any such supplemental indenture may be prepared and executed by the Issuer, authenticated by the
Trustee and delivered in exchange for the Securities of such series then Outstanding.
Section 7.06. Conformity with Trust Indenture
Act. Every supplemental indenture executed pursuant to this Article 7 shall conform to the requirements of the Trust Indenture
Act.
Article
8
Consolidation, Merger, Sale Or Conveyance
Section 8.01. Issuer May Consolidate,
Etc., on Certain Terms. Nothing contained in this Indenture or in any of the Securities shall prevent any amalgamation, reconstruction,
consolidation or merger of the Issuer with or into any other corporation or corporations (whether or not affiliated with the Issuer),
or successive amalgamations, reconstructions, consolidations or mergers in which the Issuer or its successor or successors shall
be a party or parties, or shall prevent any sale or conveyance of all or substantially all of the assets of the Issuer and its
Subsidiaries, taken as a whole, to any other corporation (whether or not affiliated with the Issuer) authorized to acquire and
operate the same; provided, however, that the corporation formed by such amalgamation, restructuring or consolidation, or into
which the Issuer shall merge, or which shall acquire such property is organized and validly existing under the laws of the United
States of America, the United Kingdom or another jurisdiction that is a member country of the Organization for Economic Cooperation
and Development (or any successor thereto) and provided further and the Issuer hereby covenants and agrees that, upon any such
amalgamation, reconstruction, consolidation, merger, sale or conveyance, (i) the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed by the Issuer (including, if applicable, submission to jurisdiction),
shall be expressly assumed by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee,
by the corporation formed by such amalgamation, reconstruction or consolidation, or into which the Issuer shall have been merged,
or
by the corporation which shall have acquired such property, and (ii) if the corporation formed by such amalgamation, reconstruction
or consolidation, or into which the Issuer shall have been merged, or which shall have acquired such property, is incorporated
under the laws of any jurisdiction other than the United Kingdom or any State of the United States of America or the District
of Columbia, such corporation shall, in such supplemental indenture, agree that any amounts to be paid by the Issuer under the
Securities shall be paid without deduction or withholding for any and all present and future taxes, levies, duties, assessments,
imposts or other governmental charges whatsoever imposed, assessed, levied or collected by or for the account of such jurisdiction
or any political subdivision or taxing authority thereof or therein or if deduction or withholding of any such taxes, levies,
imposts or other governmental charges shall at any time be required by such jurisdiction or any such subdivision or authority,
such corporation will (subject to what follows) pay such additional amounts in respect of principal, interest, if any, and sinking
fund payments as may be necessary in order that the net amounts received by the Holders of the Securities or the Trustee under
this Indenture, as the case may be, pursuant to the Securities, after such deduction or withholding, shall equal the respective
amounts of principal, interest, if any, and sinking fund payments, as specified in the Securities, to which such Holders or the
Trustee would be entitled had such deduction or withholding not been so imposed, assessed, levied or collected; provided, however,
that the foregoing shall not apply to (i) any present or future tax, levy, impost or other governmental charge which would not
have been so imposed, assessed, levied or collected but for the fact that the Holder of the relevant Security (or a fiduciary,
settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust,
partnership or corporation) is or has been a domiciliary, national or resident of, or engaging or having been engaged in a trade
or business or maintaining or having maintained a permanent establishment or being or having been physically present in, such
jurisdiction or such political subdivision or otherwise having or having had some connection with such jurisdiction or such political
subdivision other than the holding or ownership of a Security, or the collection of principal of, and interest, if any, on, or
the enforcement of, a Security, (ii) any present or future tax, levy, impost or other governmental charge which would not have
been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was
presented more than 30 days after the date on which such payment became due or was provided for, whichever is later, (iii) any
estate, inheritance, gift, sale, transfer, personal property or similar tax, levy, impost or other governmental charge, (iv) any
present or future tax, levy, impost or other governmental charge which is payable otherwise than by deduction or withholding from
payments on or in respect of the relevant Security, (v) any present or future tax, levy, impost or other governmental charge which
would not have been so imposed, assessed, levied, collected or withheld but for the failure to comply with any request addressed
to the Holder for certification, identification or other information reporting concerning the nationality, residence, identity
or connection with such jurisdiction or any political subdivision thereof of the
Holder
or beneficial owner of the relevant Security, if compliance is required by treaty or by statute, regulation or administrative
practice of such jurisdiction or such political subdivision as a condition to relief or exemption from such tax, levy, impost
or other governmental charge (which such Holder or beneficial owner is legally entitled to provide), (vi) any present or future
tax, levy, impost or other governmental charge which a Holder would have been able to avoid by authorizing the paying agent to
report information in accordance with the procedure laid down by the relevant tax authority or by producing, in the form requested
by the relevant tax authority, a declaration, claim, certificate, document or other evidence establishing exemption therefrom
which has been requested of such Holder and which it is legally entitled to provide (vii) any present or future tax, levy, impost
or other governmental charge imposed by the United States of America or any political subdivision or taxing authority thereof
or therein, (viii) any present or future tax, levy, impost or other governmental charge imposed, assessed, levied or collected
in respect of a payment under or with respect to a Security to any Holder of the relevant Security that is a fiduciary, partnership
or a person other than the sole beneficial owner of such payment or Security to the extent that the beneficiary or settlor with
respect to the fiduciary, member of that partnership or beneficial owner would not have been entitled to the additional amounts
or would not have been subject to such tax, levy, impost or charge, had that beneficiary, settlor, member or beneficial owner
been the actual Holder of such Security; or (ix) any combination of items (i) through (viii) above.
Section 8.02. Securities to be Secured
in Certain Events. If, upon any such amalgamation, reconstruction, consolidation or merger of the Issuer with or into any other
corporation, or upon any sale or conveyance of all or substantially all of the property of the Issuer to any other corporation,
any Principal Property of the Issuer or of any of its Restricted Subsidiaries or any shares of stock or indebtedness of any such
Restricted Subsidiary would thereupon become subject to any mortgage, pledge or lien which would be prohibited by Section 3.08,
the Issuer, prior to such amalgamation, reconstruction, consolidation, merger, sale or conveyance, will secure the Securities,
equally and ratably with any other obligations of the Issuer then entitled thereto, by a direct lien on all such property equally
and ratably with all such mortgages, pledges or liens.
Section 8.03. Successor Corporation to
be Substituted for Issuer. In case of any such amalgamation, reconstruction, consolidation, merger, sale or conveyance (other
than by way of a temporary lease in the ordinary course of business) and following such an assumption by the successor corporation,
such successor corporation shall succeed to and be substituted for the Issuer, with the same effect as if it had been named herein
and the Issuer shall be relieved of all obligations and covenants under this Indenture and the Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the name of the Issuer, all of the Securities issuable
hereunder which theretofore shall not have been signed by the Issuer and delivered to the Trustee. All the Securities so issued
shall in all respects have the same legal rank and
benefit
under this Indenture as the Securities theretofore and thereafter issued in accordance with the terms of this Indenture as though
all of such Securities had been issued at the date of the execution hereof.
In case of any such amalgamation, reconstruction,
consolidation, merger, sale or conveyance such changes in phraseology and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.
Section 8.04. Opinion of Counsel to Trustee.
The Trustee, subject to the provisions of Sections 5.01 and 5.02, shall receive an Officers’ Certificate and an Opinion
of Counsel, prepared in accordance with Section 10.05, as conclusive evidence that any such consolidation, merger, sale, lease
or conveyance, and any such assumption, and any such liquidation or dissolution and such supplemental indenture, complies with
this Article 8 and that all conditions precedent herein provided for relating to such transaction have been complied with.
Article
9
Satisfaction And Discharge Of Indenture; Unclaimed Moneys
Section 9.01. Satisfaction and Discharge
of Indenture. If at any time (a) the Issuer shall have paid or caused to be paid the principal of and interest, if any, on
all the Securities of any series Outstanding hereunder as and when the same shall have become due and payable, or (b) the Issuer
shall have delivered to the Trustee for cancellation all Outstanding Securities of any series theretofore authenticated or (c)(i)
all the Securities of such series not theretofore delivered to the Trustee for cancellation shall have become due and payable,
or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (ii) the Issuer shall have irrevocably deposited or caused
to be deposited with the Trustee as trust funds the entire amount in cash (other than moneys repaid by the Trustee or any paying
agent to the Issuer in accordance with Section 9.05) or Government Obligations, maturing as to principal and interest in such amounts
and at such times as will insure the availability of cash, sufficient, without reinvestment, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay at maturity
or upon redemption all Outstanding Securities of such series not theretofore delivered to the Trustee for cancellation, including
principal and interest, if any, due or to become due on or prior to such date of maturity as the case may be, and if, in any such
case, the Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer with respect to Securities of
such series, then this Indenture shall cease to be of further effect with respect to Securities of such series (except as to (i)
rights of registration of transfer and exchange of Securities of such series, and the Issuer’s right of optional redemption,
if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights
of
Holders to receive payments of principal thereof and interest, if any, thereon, upon the original stated due dates therefor (but
not upon acceleration), and remaining rights of the Holders to receive mandatory sinking fund payments, if any, from funds deposited
with the Trustee, (iv) the rights, obligations, immunities and indemnities of the Trustee hereunder and (v) the rights of the
Securityholders of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all
or any of them), and the Trustee, on demand of the Issuer accompanied by an Officers’ Certificate and an Opinion of Counsel
and at the cost and expense of the Issuer, shall execute proper instruments acknowledging such satisfaction of and discharging
this Indenture with respect to such series; provided, that the rights of Holders of the Securities to receive amounts in respect
of principal of and interest, if any, on the Securities held by them shall not be delayed longer than required by then-applicable
mandatory rules or policies of any securities exchange upon which the Securities are listed. The Issuer agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this Indenture or the Securities of such series.
Section 9.02. Application by Trustee
of Funds Deposited for Payment of Securities. Subject to Sections 9.04 and 9.05, all moneys deposited with the Trustee pursuant
to Section 9.01 shall be held in trust and applied by it to the payment, either directly or through any paying agent (including
the Issuer acting as paying agent), to the Holders of the particular Securities of such series for the payment or redemption of
which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest, if
any; but such money need not be segregated from other funds except to the extent required by law.
Section 9.03. Defeasance upon Deposit
of Moneys or Government Obligations. At the Issuer’s option, either (a) the Issuer shall be deemed to have been Discharged
(as defined below) from its obligations with respect to any series of Securities on the 91st day after the applicable conditions
set forth below have been satisfied or (b) the Issuer shall cease to be under any obligation to comply with any term, provision
or condition set forth in Sections 3.08, 3.09, 3.10, and, insofar as such Sections require compliance with Sections 3.08, 3.09
or 3.10, Sections 8.01, 8.02 and 8.03 and non-compliance with such Sections shall not give rise to any Event of Default under Section
4.01(c), with respect to any series of Securities at any time after the applicable conditions set forth below have been satisfied:
(i) the
Issuer shall have deposited or caused to be deposited irrevocably with the Trustee or its agent as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series money in an amount,
or Government Obligations of the government in the currency of which the Securities of such series are
denominated
which through the payment of interest thereon and principal thereof in accordance with their terms will provide, not later than
the due date of any payment, money in an amount, or a combination thereof, sufficient, without reinvestment, in the opinion of
a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee,
to pay and discharge each installment of principal (including mandatory sinking fund payments) of, and interest on, the outstanding
Securities of such series on the dates such installments of interest or principal are due or to and including the redemption date
irrevocably designated by the Issuer pursuant to subparagraph (v) hereof;
(ii) no
Event of Default or event which with notice or lapse of time would become an Event of Default under Section 4.01(d) or (e) with
respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(iii) in
the case of the Securities of such series being discharged pursuant to clause (a) only, the Issuer shall have delivered to the
Trustee either (i) an Opinion of Counsel to the effect that Holders of the Securities of such series will not recognize income,
gain or loss for U.S. federal income tax purposes as a result of the exercise of the option under clause (a) above and will be
subject to U.S. 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 option had not been exercised, or (ii) a ruling to that effect received from or published by the United States Internal
Revenue Service;
(iv) if
the Issuer has deposited or caused to be deposited money or Government Obligations to pay or discharge the principal of and interest
on the Outstanding Securities of a series to and including a redemption date pursuant to subparagraph (i) hereof, such redemption
date shall be irrevocably designated by a Board Resolution delivered to the Trustee on or prior to the date of deposit of such
money or Government Obligations, and such Board Resolution shall be accompanied by an irrevocable Company Order that the Trustee
give notice of such redemption in the name and at the expense of the Issuer not less than 30 nor more than 60 days prior to such
redemption date in accordance with Section 11.02; and
(v) the
Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that all conditions
precedent provided for relating to the defeasance, have been complied with.
“Discharged” means that the
Issuer shall be deemed to have paid and discharged the entire indebtedness represented by, and obligations under, the Securities
of such series and to have satisfied all the obligations under this Indenture relating to the Securities of such series (and the
Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging the same), except
(A)
the rights of Holders of Securities of such series to receive, from the trust fund described in clause (1) above, payment of the
principal of and the interest on such Securities when such payments are due; (B) the Issuer’s obligations, as the case may
be, with respect to such Securities under Sections 2.12, 2.13, 3.03 and 3.05; and (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder, including, without limitation, Section 5.06 of this Indenture.
Section 9.04. Repayment of Moneys Held
by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect to Securities of any series,
all moneys then held by any paying agent under the provisions of this Indenture with respect to such series of Securities shall,
upon demand of the Issuer, be repaid to the Issuer or paid to the Trustee and thereupon such paying agent shall be released from
all further liability with respect to such moneys.
Section 9.05. Return of Moneys Held by
Trustee and Paying Agent Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any paying agent for
the payment of the principal of or interest, if any, on any Security of any series and not applied but remaining unclaimed for
two years after the date upon which such principal or interest shall have become due and payable, shall, upon the written request
of the Issuer and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law,
be repaid to the Issuer by the Trustee for such series or such paying agent, and the Holder of the Security of such series shall,
unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look
only to the Issuer for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any paying
agent with respect to such moneys shall thereupon cease.
Section 9.06. Reinstatement. If the
Trustee is unable to apply any money or Government Obligations in accordance with Section 9.03 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 Issuer’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to Section 9.03, until such time as the Trustee or Paying Agent is permitted to apply all such money or Government
Obligations in accordance with Section 9.03; provided that, if the Issuer has made any payment of principal of or interest on the
Securities of any series because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money or Government Obligations held by the Trustee or Paying Agent.
Article
10
Miscellaneous Provisions
Section 10.01. Incorporators, Stockholders,
Officers and Directors of Issuer Exempt from Individual Liability. No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator,
as such, or against any past, present or future stockholder, officer or director, as such, of the Issuer or of any successor of
the Issuer, either directly or through the Issuer or any successor of the Issuer, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the
issue of the Securities. Nothing in this Section 10.01 shall be deemed to alter the obligations of the Issuer under the Securities.
Section 10.02. Provisions of Indenture
for the Sole Benefit of Parties and Securityholders. Nothing in this Indenture or in the Securities, expressed or implied,
shall give or be construed to give to any Person, other than the parties hereto and their successors and the Holders of the Securities,
any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Securities.
Section 10.03. Successors and Assigns
of Issuer Bound by Indenture. All the covenants, stipulations, promises and agreements in this Indenture contained by or on
behalf of the Issuer shall bind its respective successors and assigns, whether so expressed or not.
Section 10.04. Notices and Demands on
Issuer, Trustee and Securityholders. Any notice or demand which by any provision of this Indenture is required or permitted
to be given or served by the Trustee or by the Holders of Securities to or on the Issuer may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address of the Issuer
is filed by the Issuer with the Trustee) to Smith & Nephew plc, Building 5, Croxley Park, Hatters Lane, Hertfordshire WD18
8YE, England in the case of the Issuer. Any notice, direction, request or demand by the Issuer or any Securityholder to or upon
the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made at the Trustee Corporate
Trust Office. If a notice or communication is mailed or delivered in the manner provided above within the time prescribed, it is
duly given, whether or not the addressee receives it, except in the case of notices or communications given to the Trustee, which
shall be effective only upon actual receipt by the Trustee at the Trustee Corporate Trust Office.
Where this Indenture provides for notice
to Holders, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder entitled thereto, at his or her last address as it appears in the Security Register. In any case
where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. For so long
as the Securities of any series are represented by Global Securities, notices with respect to such series shall be delivered to
the Depository.
In case, by reason of the suspension of
or irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer and Securityholders when such
notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory
to the Trustee shall be deemed to be a sufficient giving of such notice.
The Trustee shall have the right, but shall
not be required, to rely upon and comply with notices, instructions, directions or other communications sent by e-mail, facsimile
and other similar unsecured electronic methods by Persons believed by the Trustee to be authorized to give instructions and directions
on behalf of the Issuer. The Trustee shall have no duty or obligation to verify or confirm that the Person who sent such instructions
or directions is, in fact, a Person authorized to give instructions or directions on behalf of the Issuer; and the Trustee shall
have no liability for any losses, liabilities, costs or expenses incurred or sustained by the Issuer as a result of such reliance
upon or compliance with such notices, instructions, directions or other communications. The Issuer agrees to assume all risks arising
out of the use of such electronic methods to submit notices, instructions, directions or other communications to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third
parties. The Issuer shall use all reasonable endeavors to ensure that any such notices, instructions, directions or other communications
transmitted to the Trustee pursuant to this Indenture are complete and correct. Any such notices, instructions, directions or other
communications shall be conclusively deemed to be valid instructions from the Issuer to the Trustee for the purposes of this Indenture.
Section 10.05. Officers’ Certificates
and Opinions of Counsel; Statements to be Contained Therein. Upon any application or demand by the Issuer to the Trustee to
take any action under any of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent provided for in this Indenture relating to the proposed action have been
complied
with and an Opinion of Counsel stating that in the opinion of such counsel such action is authorized or permitted by the Indenture
and that all such conditions precedent have been complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for
in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture
shall include (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 or she has made such examination or investigation
as is necessary to enable him or her 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.
Any certificate, statement or opinion of
an officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations
by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which
his or her certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual
matters, information with respect to which is in the possession of the Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his or her certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of
an officer of the Issuer or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion
of or representations by an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which his or
her certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
Any certificate or opinion of any independent
firm of public accountants filed with the Trustee shall contain a statement that such firm is independent.
Section 10.06. Payments Due on Saturdays,
Sundays and Holidays. If the date of maturity of interest on or principal of the Securities of any series or the date fixed
for redemption or repayment of any such Security shall not be a Business Day, then payment of interest or principal need not be
made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the period after such date.
Section 10.07. Conflict of any Provision
of Indenture with Trust Indenture Act. If and to the extent that any provision of this Indenture limits, qualifies or conflicts
with another provision included in this Indenture by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act (an
“incorporated provision”), such incorporated provision shall control.
Section 10.08. New York Law to Govern.
This Indenture and each Security shall be governed by the laws of the State of New York, and for all purposes shall be construed
in accordance with the laws of such State, except as may otherwise be required by mandatory provisions of law.
Section 10.09. Counterparts. This
Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
The exchange of copies of this Indenture
and of signature pages that are executed by manual signatures that are scanned, photocopied or faxed or by other electronic signing
created on an electronic platform (such as DocuSign) or by digital signing (such as Adobe Sign) shall constitute effective execution
and delivery of this Indenture for all purposes. Signatures of the parties hereto that are executed by manual signatures that are
scanned, photocopied or faxed or by other electronic signing created on an electronic platform (such as DocuSign) or by digital
signing (such as Adobe Sign) shall be deemed to be their original signatures for all purposes of this Indenture as to the parties
hereto and may be used in lieu of the original.
Anything in this Indenture or the Securities
to the contrary notwithstanding, for the purposes of the transactions contemplated by this Indenture, the Securities and any document
to be signed in connection with the Indenture or the Securities (including the Securities and amendments, supplements, waivers,
consents and other modifications, Officers’ Certificates, Company Orders and Opinions of Counsel and other issuance, authentication
and delivery documents) or the transactions contemplated hereby may be signed by manual signatures that are scanned, photocopied
or faxed or other electronic signatures created on an electronic platform (such as DocuSign) or by digital signature (such as Adobe
Sign) and contract formations on electronic platforms, and the keeping of records in electronic form, are hereby authorized, and
each shall be of the same legal effect, validity or enforceability as a manually executed signature in ink or the use of a paper-based
recordkeeping system, as the case may be.
Section 10.10. Effect of Headings. The
Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 10.11. Submission to Jurisdiction.
The Issuer agrees that any legal suit, action or proceeding arising out of or relating to the Indenture or the Securities may
be instituted in any state or federal court in the State and City of New York, Borough of Manhattan, United States of America,
waives to the extent it may effectively do so, any objection which it may have now or hereafter to the laying of the venue of any
such suit, action or proceeding, and irrevocably submits to the non-exclusive jurisdiction of any such court in any such suit,
action or proceeding. The Issuer hereby designates Smith & Nephew Inc. as the Issuer’s authorized agent to accept and
acknowledge on its behalf service of any and all process which may be served in any such suit, action or proceeding in any such
court and agrees that service of process upon said agent at its office at 150 Minuteman Road, Andover, Massachusetts 01810, (or
at such other address as such agent may designate by written notice to the Issuer and the Trustee), and written notice of said
service to the Issuer, mailed or delivered to it, at Building 5, Croxley Park, Hatters Lane, Hertfordshire WD18 8YE, England, attention
of the Company Secretary, (until another address of the Issuer is filed by the Issuer with the Trustee) shall be deemed in every
respect effective service of process upon the Issuer in any such suit, action or proceeding and shall be taken and held to be valid
personal service upon the Issuer, whether or not the Issuer shall then be doing, or at any time shall have done, business within
the State of New York, and that any such service of process shall be of the same force and validity as if service were made upon
it according to the laws governing the validity and requirements of such service in such state, and waives all claim of error by
reason of any such service. Said designation and appointment shall be irrevocable until the Indenture shall have been satisfied
and discharged in accordance with Article 9.
Section 10.12. Waiver of Jury Trial.
EACH OF THE ISSUER AND THE TRUSTEE, AND EACH HOLDER OF A SECURITY BY ITS ACCEPTANCE THEREOF, HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 10.13. Severability.
If any provision contained in this Indenture or in any Security shall for any reason be held or deemed to be or shall, in fact,
be invalid, illegal, inoperative or unenforceable in any respect, the same shall not affect any other provision or provisions of
this Indenture or of such Security or render the same invalid, inoperative or unenforceable to any extent whatsoever.
Article
11
Redemption Of Securities And Sinking Funds
Section 11.01. Applicability of Article.
The provisions of this Article 11 shall be applicable to the Securities of any series which are redeemable before their maturity
or to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.07
for Securities of such series.
Section 11.02. Notice of Redemption;
Partial Redemptions. Notice of redemption to the Holders of Securities of any series to be redeemed as a whole or in part at
the option of the Issuer shall be given by mailing notice of such redemption by first class mail, postage prepaid, at least 10
days and not more than 60 days prior to the date fixed for redemption to such Holders of Securities of such series at their last
addresses as they shall appear upon the registry books. Any notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or any defect
in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder
shall specify the principal amount of each Security of such series held by such Holder to be redeemed, the date fixed for redemption,
the redemption price, the place or places of payment, that payment will be made upon presentation and surrender of such Securities,
that such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case, or that such redemption
is pursuant to Section 11.06(a) or Section 11.06(b) of the Indenture, that interest accrued to the date fixed for redemption will
be paid as specified in such notice and that on and after said date interest thereon or on the portions thereof to be redeemed
will cease to accrue. In case any Security of a series is to be redeemed in part only the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender
of such Security, a new Security or Securities of such series, in principal amount equal to the unredeemed portion thereof will
be issued.
The notice of redemption of Securities of
any series to be redeemed at the option of the Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee
in the name and at the expense of the Issuer.
At least one Business Day prior to the redemption
date specified in the notice of redemption given as provided in this Section 11.02, the Issuer will deposit with the Trustee or
with one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as
provided in Section 3.05) an amount of money sufficient to redeem on the redemption date all the Securities of such series so called
for redemption at the appropriate redemption price, together with accrued interest and any additional amounts due on the date fixed
for redemption. If less than all the outstanding Securities of a series are to be redeemed, the Issuer will deliver to the Trustee
at least 30 days prior to the date fixed for redemption (unless a shorter period shall be satisfactory to the Trustee) an Officers’
Certificate stating the aggregate principal amount of Securities to be redeemed.
If fewer than all the Securities of a series
are to be redeemed, the Trustee shall select the Securities of such series to be redeemed in whole or in part by lot or by any
other method the Trustee considers fair and appropriate, subject to any stock exchange requirements. Securities may be redeemed
in part in principal amounts equal to the minimum authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Issuer in writing of the Securities of such series selected for redemption and, in the case
of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes
of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities of any series
shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.
Section 11.03. Payment of Securities
Called for Redemption. If notice of redemption has been given as provided above, the Securities or portions of Securities specified
in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and on and after said date (unless the Issuer shall default in
the payment of such Securities at the redemption price, together with interest accrued, if any, to said date) interest on the Securities
or portions of Securities so called for redemption shall cease to accrue and, except as provided in Sections 5.05 and 9.05, such
Securities shall cease from and after the date fixed for redemption to be entitled to any benefit or security under this Indenture,
and the Holders thereof shall have no right in respect of such Securities except the right to receive the redemption price thereof
and unpaid interest and any additional amounts due on the date fixed for redemption. On presentation and surrender of such Securities
at a place of payment specified in said notice, said Securities or the specified portions thereof shall be paid and redeemed by
the Issuer at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided
that any semiannual payment of interest becoming due on the date fixed for redemption shall be payable to the Holders of
such
Securities registered as such on the relevant record date subject to the terms and provisions of Section 2.08 hereof.
If any Security called for redemption shall
not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest from
the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security)
borne by the Security.
Upon presentation of any Security redeemed
in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to or on the order of the Holder thereof,
at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations, in principal amount equal
to the unredeemed portion of the Security so presented.
Section 11.04. Exclusion of Certain Securities
from Eligibility for Selection for Redemption. Securities shall be excluded from eligibility for selection for redemption if
they are identified by registration and certificate number in a written statement signed by an authorized officer of the Issuer
and delivered to the Trustee at least 40 days prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b) an entity specifically identified
in such written statement as directly or indirectly controlling or controlled by or under direct or indirect common control with
the Issuer.
Section 11.05. Mandatory and Optional
Sinking Funds. The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein
referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an “optional sinking fund payment”. The date on which
a sinking fund payment is to be made is herein referred to as the “sinking fund payment date”.
In lieu of making all or any part of any
mandatory sinking fund payment with respect to any series of Securities in cash, the Issuer may at its option (a) deliver to the
Trustee Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory
sinking fund) by the Issuer or receive credit for Securities of such series (not previously so credited) theretofore purchased
or otherwise acquired (except as aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant to Section 2.14,
(b) receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section 11.05, or (c)
receive credit for Securities of such series (not previously so credited) redeemed by the Issuer through any optional redemption
provision contained in the terms of such series. Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding
each sinking fund payment date for any series, the Issuer will deliver to the Trustee a written statement (which need not contain
the statements required by Section 10.05) signed by an authorized officer of the Issuer (a) specifying the portion of the mandatory
sinking fund payment to be satisfied by payment of cash and the portion to be satisfied by credit of Securities of such series,
(b) stating that none of the Securities of such series has theretofore been so credited, (c) stating that no defaults in the payment
of interest, if any, or Events of Default with respect to such series have occurred (which have not been waived or cured) and are
continuing and (d) stating whether or not the Issuer intends to exercise its right to make an optional sinking fund payment with
respect to such series and, if so, specifying the amount of such optional sinking fund payment which the Issuer intends to pay
on or before the next succeeding sinking fund payment date. Any Securities of such series to be credited and required to be delivered
to the Trustee in order for the Issuer to be entitled to credit therefor as aforesaid which have not theretofore been delivered
to the Trustee shall be delivered for cancellation pursuant to Section 2.14 to the Trustee with such written statement (or reasonably
promptly thereafter if acceptable to the Trustee). Such written statement shall be irrevocable and upon its receipt by the Trustee
the Issuer shall become unconditionally obligated to make all the cash payments or payments therein referred to, if any, on or
before the next succeeding sinking fund payment date. Failure of the Issuer, on or before any such sixtieth day, to deliver such
written statement and Securities specified in this paragraph, if any, shall not constitute a default but shall constitute, on and
as of such date, the irrevocable election of the Issuer (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of
such series in respect thereof and (ii) that the Issuer will make no optional sinking fund payment with respect to such series
as provided in this Section 11.05.
If the sinking fund payment or payments
(mandatory or optional or both) to be made in cash on the next succeeding sinking fund payment date plus any unused balance of
any preceding sinking fund payments made in cash shall exceed $50,000 (or a lesser sum if the Issuer shall so request) with respect
to the Securities of any particular series, such cash shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund redemption price together with accrued interest and any additional
amounts due on the date fixed for redemption. If such amount shall be $50,000 or less and the Issuer makes no such request then
it shall be carried over until a sum in excess of $50,000 is available. The Trustee shall select, in the manner provided in Sections
11.02 and 11.04, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by the Issuer) inform the Issuer of the serial numbers
of the Securities of such series (or portions thereof) so selected. The Trustee, in the name and at the expense of the Issuer (or
the Issuer, if it shall so request the Trustee in writing) shall cause notice
of
redemption of the Securities of such series to be given in substantially the manner provided in Section 11.02 (and with the effect
provided in Section 11.03) for the redemption of Securities of such series in part at the option of the Issuer. The amount of
any sinking fund payments not so applied or allocated to the redemption of Securities of such series shall be added to the next
cash sinking fund payment for such series and, together with such payment, shall be applied in accordance with the provisions
of this Section 11.05. Any and all sinking fund moneys held on the stated maturity date of the Securities of any particular series
(or earlier, if such maturity is accelerated), which are not held for the payment or redemption of particular Securities of such
series shall be applied, together with other moneys, if necessary, sufficient for the purpose, to the payment of the principal
of, and interest on, the Securities of such series at maturity.
At least one Business Day before each sinking
fund payment date, the Issuer shall pay to the Trustee in cash or shall otherwise provide for the payment of all interest accrued
to the date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date. The Trustee shall
not redeem or cause to be redeemed any Securities of a series with sinking fund moneys or mail any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a default in payment of interest on such Securities
or of any Event of Default except that, where the mailing of notice of redemption of any Securities shall theretofore have been
made, the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Issuer a
sum sufficient for such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such
default or Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of
such default or Event of Default, be deemed to have been collected under Article 4 and held for the payment of all such Securities.
In case such Event of Default shall have been waived as provided in Section 4.10 or the default cured on or before the sixtieth
day preceding the sinking fund payment date in any year, such moneys shall thereafter be applied on the next succeeding sinking
fund payment date in accordance with this Section to the redemption of such Securities.
Section 11.06. Optional Redemption
Due to Changes in Tax Treatment. (a) Unless otherwise provided in the Securities of any series, if as the
result of any change in or any amendment to the laws or any regulations or rulings thereunder of the United Kingdom or of any
political subdivision or taxing authority thereof or therein affecting taxation, or any change in an application or
interpretation of such laws, regulations or rulings, or any change in an application or interpretation of, or any execution
of an amendment to, any treaty or treaties affecting taxation to which the United Kingdom or any political subdivision or
taxing authority thereof or therein is a party, which change, amendment, application, interpretation or execution becomes
effective on or after the date specified for such series pursuant to Section 2.07, it is determined by the Issuer that (i)
the Issuer would be required to make additional payments in respect of
principal,
interest, if any, or sinking fund payments on the next succeeding date for the payment thereof or (ii) based upon an opinion of
independent counsel to the Issuer, as a result of any action taken by any taxing authority of, or any action brought in a court
of competent jurisdiction in, the United Kingdom or any political subdivision thereof (whether or not such action was taken or
brought with respect to the Issuer), which action is taken or brought on or after the date specified for such series pursuant
to Section 2.07, the circumstances described in clause (i) would exist, and the payment of such additional amounts in the case
of (i) above or the imposition of such tax in the case of (i) above cannot be avoided by the use of any reasonable measures available
to the Issuer, the Issuer may, at its option, redeem such series of Securities in whole at any time (except in the case of a series
having a variable rate of interest, which may be redeemed on any interest payment date) at a redemption price equal to 100 per
cent of the principal amount thereof plus accrued interest and any additional amounts due on the date fixed for redemption (except
in the case of Outstanding Original Issue Discount Securities which may be redeemed at the redemption price specified by the terms
of each series of such Securities). Prior to any redemption of such a series of Securities pursuant to this Section 11.06(a),
the Issuer shall provide the Trustee with an Opinion of Counsel that the conditions precedent to the right of the Issuer to redeem
such Securities pursuant to this Section 11.06(a) have occurred. Such Opinion of Counsel shall be based on the laws in effect
on the date of such opinion or to become effective on or before the next succeeding date for payment of principal or interest.
(b) Unless
otherwise provided in the Securities of any series, if (1) there has been an amalgamation, reconstruction, consolidation, merger
or other transaction concerning the Issuer permitted by Section 8.01 and (2) as the result of any change in or any amendment to
the laws or any regulations or rulings thereunder of the jurisdiction in which such successor Issuer is incorporated or of any
political subdivision or taxing authority thereof or therein affecting taxation, or any change in an application or interpretation
of such laws, regulations or rulings, or any change in an application or interpretation of, or any execution of an amendment to,
any treaty or treaties affecting taxation to which such jurisdiction or any political subdivision or taxing authority thereof or
therein is a party which change, amendment, application, interpretation or execution becomes effective on or after the date of
such transaction or assumption, it is determined by the successor Issuer that (i) the successor Issuer would be required to make
additional payments in respect of principal or interest, if any, on the next succeeding date for payment thereof pursuant to an
agreement made by such successor Issuer in a supplemental indenture in accordance with Section 8.03 or (ii) based upon an opinion
of independent counsel to the successor Issuer, as a result of any action taken by any taxing authority of, or any action brought
in a court of competent jurisdiction in such jurisdiction or any political subdivision thereof (whether or not such action was
taken or brought with respect to the successor Issuer), which action is taken or brought on or after the date of such transaction
or assumption, the circumstances described in clause (i) would exist,
and,
the payment of such additional amounts in the case of (i) above or the imposition of such tax in the case of (i) above cannot
be avoided by the use of any reasonable measures available to the successor Issuer, the successor Issuer may, at its option, redeem
such series of Securities in whole at any time (except in the case of a series having a variable rate of interest, which may be
redeemed on any interest payment date) at a redemption price equal to 100 per cent of the principal amount thereof plus accrued
interest and any additional amounts due on the date fixed for redemption (except in the case of Outstanding Original Issue Discount
Securities which may be redeemed at the redemption price specified by the terms of each series of such Securities). Prior to any
redemption of such a series of Securities pursuant to this Section 11.06(b), the successor Issuer shall provide the Trustee with
an Opinion of Counsel that the conditions precedent to the right of the successor Issuer to redeem such Securities pursuant to
this Section 11.06(b) have occurred. Such Opinion of Counsel shall be based on the laws in effect on the date of such opinion
or to become effective on or before the next succeeding date for payment of principal or interest.
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed as of October 14, 2020.
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Smith & Nephew plc
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By:
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/s/ Susan Swabey
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Name: Susan Swabey
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Title: Company Secretary
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THE BANK OF NEW YORK MELLON, LONDON BRANCH, as Trustee
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By:
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/s/ Melissa Laidley
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Name: Melissa Laidley
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Title: Vice President
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