As filed with the Securities and Exchange Commission on August 9, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BRAINSTORM CELL
THERAPEUTICS
INC.
(Exact name of registrant as specified in its charter)
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Delaware
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20-7273918
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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1325
Avenue of Americas, 28th Floor
New York, NY 10019
(201) 488-0460
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Chaim
Lebovits
Chief Executive Officer
c/o Brainstorm Cell Therapeutics Inc.
1325 Avenue of Americas, 28th Floor
New York, NY 10019
(201) 488-0460
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copy to:
Christopher J. Denn, Esq.
Jesse Nevarez, Esq.
Goodwin Procter LLP
100 Northern Avenue
Boston, Massachusetts 02210
(617) 570-1000
From time to time after this registration statement
becomes effective. (Approximate date of commencement of proposed sale to the public)
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 other than securities offered only
in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration
statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under
the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under
the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer”, “smaller reporting company” and “emerging growth
company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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x
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Smaller reporting company
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x
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Emerging growth company
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If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ¨
CALCULATION OF REGISTRATION FEE
Title of each class of securities to
be registered
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Amount to be
Registered(1)
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Proposed
Maximum
Offering Price
Per Unit(2)
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Proposed Maximum
Aggregate
Offering Price(3)
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Amount of
Registration Fee
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Common Stock, par value $0.00005 per share
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Debt Securities
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Warrants
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Units(4)
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Common Stock, par value $0.00005 per share
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Total
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$
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200,000,000
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N/A
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$
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200,000,000
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$
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21,820
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(5)
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(1)
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The amount to be registered consists of up to $200,000,000 of an indeterminate amount of the securities of each identified class as
may from time to time be offered hereunder at indeterminate prices, along with an indeterminate number of securities that may be issued
upon exercise, settlement, exchange or conversion of securities offered or sold hereunder. Separate consideration may or may not be received
for securities that are issuable upon conversion, exercise or exchange of other securities. Any securities registered hereunder may be
sold separately or as units with the other securities registered hereunder.
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(2)
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The proposed maximum aggregate offering price per unit will be determined from time to time by the Registrant in connection with the
sale and issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant
to General Instruction II.D. of Form S-3 under the Securities Act.
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(3)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act. No
separate consideration will be received for (i) common stock or other securities of the registrant that may be issued upon conversion
of, or in exchange for, convertible or exchangeable debt securities registered hereby or (ii) common stock, debt securities or units
that may be issued upon exercise of warrants registered hereby, as the case may be.
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(4)
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Each unit will be issued under a unit agreement and will represent an interest in two or more securities, which may or may not be
separable from one another.
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(5)
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Calculated pursuant to Rule 457(o) under the Securities Act.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH
DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY
STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES
ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION
ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
EXPLANATORY NOTE
This registration statement contains:
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a base prospectus which covers the offering, issuance and sale by us of the securities identified above from time to time in one or more offerings with a total value of up to $200,000,000; and
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a distribution agreement prospectus covering the offering, issuance and sale by us of up to a maximum aggregate offering price of $100,000,000 of our common stock that may be issued and sold from time to time under the Amended and Restated Distribution Agreement, or the Distribution Agreement, entered into with SVB Leerink LLC and Raymond James & Associates, Inc.
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The base prospectus immediately follows this
explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified in a prospectus
supplement to the base prospectus. The specific terms of the securities to be issued and sold under the Distribution Agreement are specified
in the distribution agreement prospectus that immediately follows the base prospectus. The $100,000,000 of common stock that may be offered,
issued and sold under the distribution agreement prospectus is included in the $200,000,000 of securities that may be offered, issued
and sold by us under the base prospectus. Upon termination of the Distribution Agreement with SVB Leerink LLC and Raymond James &
Associates, Inc., any portion of the $100,000,000 included in the distribution agreement prospectus that is not sold pursuant to
the Distribution Agreement will be available for sale in other offerings pursuant to the base prospectus and a corresponding prospectus
supplement, and if no shares are sold under the Distribution Agreement, the full $200,000,000 of securities may be sold in other offerings
by us pursuant to the base prospectus and a corresponding prospectus supplement.
The information in this prospectus is not complete
and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission
is effective. This prospectus is not an offer to sell these securities and we are not soliciting offers to buy these securities in any
jurisdiction where the offer or sale is not permitted.
Subject to completion, dated August 9,
2021
PROSPECTUS
$200,000,000
Common Stock
Debt
Securities
Warrants
Units
We may offer and sell from time to time up to $200,000,000 in aggregate
principal amount of our common stock, debt securities, warrants and/or units in one or more offerings. This prospectus describes
the general terms of these securities and the general manner in which these securities will be offered. We will provide the specific terms
of these securities in one or more supplements to this prospectus. The prospectus supplements will also describe the specific manner in
which these securities will be offered and may also supplement, update or amend information contained in this document. You should read
this prospectus and any applicable prospectus supplement or amendment carefully before you invest in our securities.
We may offer these securities in amounts, at prices and on terms determined
at the time of offering. The securities may be sold directly to you, through agents, or through underwriters and dealers. If agents, underwriters
or dealers are used to sell the securities, we will name them and describe their compensation in a prospectus supplement.
Our common stock is listed on The Nasdaq Capital Market under the symbol
“BCLI.” On August 6, 2021, the closing price for our common stock, as reported on The Nasdaq Capital Market was $3.96
per share.
Investing in our securities involves significant risks. See “Risk Factors” on page 3 of this prospectus (and any accompanying prospectus supplement) and in the documents incorporated
by reference in this prospectus for a discussion of the factors you should carefully consider before deciding to purchase these securities.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation
to the contrary is a criminal offense.
The date of this prospectus is , 2021
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, or SEC, using a “shelf” registration process. Under this shelf registration process,
we may from time to time sell any combination of the securities described in this prospectus in one or more offerings for an aggregate
of up to $200,000,000.
This prospectus provides you with a general description of the securities
we may offer. Each time we offer securities under this prospectus, we will provide one or more prospectus supplements that will contain
specific information about the terms of the offering. We may also authorize one or more free writing prospectuses to be provided to you
that may contain material information relating to these offerings. Each prospectus supplement and any related free writing prospectus
may also add, update or change information contained in this prospectus or the documents incorporated by reference into this prospectus.
You should read both this prospectus and the accompanying prospectus supplement and any related free writing prospectus together with
the additional information described under the heading “Where You Can Find More Information” and “Incorporation of Certain
Information by Reference” before you invest in our securities.
You should rely only on the information contained in or incorporated
by reference in this prospectus, any accompanying prospectus supplement or in any related free writing prospectus filed by us with the
SEC. We have not authorized anyone to provide you with different or additional information. This prospectus and any accompanying prospectus
supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities described
in any accompanying prospectus supplement or an offer to sell or the solicitation of an offer to buy such securities in any circumstances
in which such offer or solicitation is unlawful. You should assume that the information appearing in this prospectus, any prospectus supplement,
the documents incorporated by reference and any related free writing prospectus is accurate only as of their respective dates. Our business,
financial condition, results of operations and prospects may have changed materially since those dates.
Unless
the context suggests otherwise, all references in this prospectus to “us,” “our,” “Brainstorm,” “we,”
the “Company” and similar designations refer to Brainstorm Cell Therapeutics Inc. and, where appropriate, our subsidiaries.
We use various trademarks and trade names in our business, including without limitation our corporate name and logo. All other trademarks
or trade names referred to in this prospectus are the property of their respective owners. Solely for convenience, the trademarks and
trade names in this prospectus may be referred to without the ® and ™
symbols, but such references should not be construed as any indicator that their respective owners will not assert, to the fullest extent
under applicable law, their rights thereto.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated by reference in this
prospectus include, and any prospectus supplement or free writing prospectus may contain, “forward-looking statements” within
the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Exchange
Act. Any forward-looking statements presented in this prospectus, or which management may make orally or in writing from time to time,
are based on management’s beliefs and assumptions made by, and information currently available to, management. All statements,
other than statements of historical facts, contained or incorporated by reference in this prospectus are forward-looking statements.
In some cases you can identify such “forward-looking statements” by the use of words like “may,” “will,”
“should,” “could,” “expects,” “hopes,” “anticipates,” “believes,”
“intends,” “plans,” “projects,” “targets,” “goals,” “estimates,”
“predicts,” “likely,” “potential,” or “continue” or the negative of any of these terms
or similar words. These statements, descriptions, forecasts and projections constitute “forward-looking statements,” and
as such involve known and unknown risks, uncertainties, and other factors that may cause our actual results, levels of activity, performance
and achievements to be materially different from any results, levels of activity, performance and achievements expressed or implied by
any such “forward-looking statements.” These risks and uncertainties include, but are not limited to our need to raise additional
capital, our ability to continue as a going concern, regulatory approval of our NurOwn® treatment candidate, the success of our product
development programs and research, regulatory and personnel issues, development of a global market for our services, the ability to secure
and maintain research institutions to conduct our clinical trials, the ability to generate significant revenue, the ability of our NurOwn®
treatment candidate to achieve broad acceptance as a treatment option for ALS or other neurodegenerative diseases, our ability to manufacture
and commercialize our NurOwn® treatment candidate, obtaining patents that provide meaningful protection, competition and market developments,
our ability to protect our intellectual property from infringement by third parties, heath reform legislation, demand for our services,
currency exchange rates and product liability claims and litigation, disruptions in our business due to the COVID-19 outbreak,
including our clinical development activities.
Any forward-looking statements contained or incorporated by reference
in this prospectus reflect our current views with respect to future events or to our future financial performance and involve known and
unknown risks, uncertainties and other important factors that may cause our actual results, performance or achievements to be materially
different from any future results, performance or achievements expressed or implied by these forward-looking statements. See “Risk
Factors” for more information. Given these uncertainties, you should not place undue reliance on these forward-looking statements.
Our forward-looking statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures or
investments we may make or enter into. Except as required by law, we assume no obligation to update or revise these forward-looking statements
for any reason, whether as a result of new information, future events or otherwise.
ABOUT
THE COMPANY
Our Business
Brainstorm Cell Therapeutics Inc. is a leading
biotechnology company committed to the development and commercialization of autologous cellular therapies for the treatment of neurodegenerative
diseases including: Amyotrophic Lateral Sclerosis (“ALS”, also known as Lou Gehrig’s disease); Progressive Multiple
Sclerosis (“PMS”); Alzheimer's disease (AD); and other neurodegenerative diseases. NurOwn®, our proprietary platform,
leverages cell culture methods to induce autologous bone marrow-derived mesenchymal stem cells (MSCs) to secrete high levels of neurotrophic
factors (NTFs), modulate neuroinflammatory and neurodegenerative disease processes, promote neuronal survival and improve neurological
function.
NurOwn® has been evaluated in a Phase 3 ALS
and a Phase 2 PMS clinical trial. We announced top-line data from our Phase 3 ALS trial on November 17, 2020. On March 24, 2021,
we announced positive topline data from our Phase 2 trial evaluating three repeated administrations of NurOwn®, each given 2 months
apart, as a treatment for PMS. On June 24, 2020, we announced a new clinical program focused on the development of NurOwn® as
a treatment for AD. We are currently evaluating next steps based on emerging scientific insights and the rapidly changing regulatory landscape
for AD following the recent FDA decision on Aducanumab.
Our wholly-owned Israeli subsidiary, Brainstorm
Cell Therapeutics Ltd. (“Israeli Subsidiary”), holds exclusive rights to commercialize NurOwn® technology through a licensing
agreement with Ramot (“Ramot”), the technology transfer company of Tel Aviv University, Israel. Our Israeli Subsidiary
was granted approval by the Israeli Ministry of Health (“MoH”) to treat ALS patients with NurOwn® under the Hospital Exemption
Pathway (“HE”).
NurOwn® has a strong and comprehensive intellectual
property portfolio and was granted Fast Track designation by the U.S. Food and Drug Administration (FDA) and Orphan Drug status by the
FDA and the European Medicines Agency (EMA) for ALS.
Implications of Being a Smaller Reporting Company
We are a “smaller reporting company” as defined in the
Securities Exchange Act of 1934, as amended. We may continue to be a smaller reporting company after this offering if either (i) the
market value of our shares held by non-affiliates is less than $250 million or (ii) our annual revenue was less than $100 million
during the most recently completed fiscal year and the market value of our shares held by non-affiliates is less than $700 million.
If we are a smaller reporting company at the time we cease to be an emerging growth company, we may continue to rely on exemptions from
certain disclosure requirements that are available to smaller reporting companies.
Corporate Information
We
are incorporated under the laws of the State of Delaware. Our principal executive offices are located at 1325 Avenue of Americas, 28th
Floor, New York, NY 10019, and our telephone number is (201) 488-0460. We also maintain an office in Petach Tikva, Israel. We maintain
a website at http://www.brainstorm-cell.com. No portion of our website is incorporated by reference into this prospectus
and you should not consider any information on, or that can be accessed through, our website as part of this prospectus. Our common stock
trades on The Nasdaq Capital Market under the symbol “BCLI”.
RISK
FACTORS
Investing in our securities involves significant risks. You should
carefully consider the risks and uncertainties described in this prospectus and any accompanying prospectus supplement or in any related
free writing prospectus, and the risk factors set forth in our filings with the SEC that are incorporated by reference herein, including
the risk factors in our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, and any of our
subsequent filings with the SEC, before making an investment decision pursuant to this prospectus and any accompanying prospectus supplement
relating to a specific offering.
Our business, financial condition and results of operations could be
materially and adversely affected by any or all of these risks or by additional risks and uncertainties not presently known to us or that
we currently deem immaterial that may adversely affect us in the future.
USE
OF PROCEEDS
We intend to use the net proceeds from the sale of any securities offered
under this prospectus for general corporate purposes unless the applicable prospectus supplement provides otherwise. General corporate
purposes may include research and development costs, sales and marketing costs, clinical studies, manufacturing development, the acquisition
or licensing of other businesses or technologies, repayment and refinancing of debt, working capital and capital expenditures. We may
temporarily invest the net proceeds in a variety of capital preservation instruments, including short-term, investment grade, interest
bearing instruments and U.S. government securities, until they are used for their stated purpose. We have not determined the amount of
net proceeds to be used specifically for such purposes. As a result, management will retain broad discretion over the allocation of net
proceeds.
DILUTION
If there is a material dilution of the purchasers’ equity interest
from the sale of common equity securities offered under this prospectus, we will set forth in any prospectus supplement the following
information regarding any such material dilution of the equity interests of purchasers purchasing securities in an offering under this
prospectus:
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the net tangible book value per share of our equity securities before and after the offering;
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the amount of the increase in such net tangible book value per share attributable to the cash payments made by the purchasers in the
offering; and
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the amount of the immediate dilution from the public offering price which will be absorbed by such purchasers.
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DESCRIPTION
OF CAPITAL STOCK
The
following description of our capital stock is intended as a summary only. This description is based upon, and is qualified by reference
to, our amended and restated certificate of incorporation, or certificate of incorporation, our amended and restated bylaws, or bylaws,
and applicable provisions of the Delaware General Corporation Law. This summary is not intended to be a complete description of our capital
stock. You should read our certificate of incorporation and bylaws for the provisions that are important to you.
General
Our authorized capital stock consists of 100,000,000 shares of common
stock, par value $0.00005 per share.
As of the date of this prospectus, 36,318,561 shares of our common
stock were outstanding and held by 32 stockholders of record.
Common Stock
The holders of our common stock are entitled to one vote for each share
held on all matters submitted to a vote of the stockholders. The holders of our common stock do not have any cumulative voting rights.
Holders of our common stock are entitled to receive ratably any dividends declared by our board of directors out of funds legally available
for that purpose. Our common stock has no preemptive rights, conversion rights or other subscription rights or redemption or sinking fund
provisions.
In the event of our liquidation, dissolution or winding up, holders
of our common stock will be entitled to share ratably in all assets remaining after payment of all debts and other liabilities. All outstanding
shares of common stock are fully paid and nonassessable.
Exchange Listing
Our common stock is listed on The Nasdaq Capital Market under the trading
symbol “BCLI.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American Stock
Transfer & Trust Co LLC. The transfer agent and registrar’s address is 6201 15th Avenue, Brooklyn, New York 11219, and
its telephone number is (877) 248-6417.
Anti-Takeover Effects of our Certificate of Incorporation and Bylaws
and Delaware Law
Our certificate of incorporation and bylaws include a number of provisions
that may have the effect of delaying, deferring or preventing another party from acquiring control of us and encouraging persons considering
unsolicited tender offers or other unilateral takeover proposals to negotiate with our board of directors rather than pursue non-negotiated
takeover attempts. These provisions include the items described below.
Board Composition and Filling Vacancies
Our bylaws provide that directors may be removed with or without cause
at an annual meeting or at a special meeting called for that purpose, by a majority vote of the shares then entitled to vote at an election
of directors. Furthermore, any vacancy on our board of directors, however occurring, including a vacancy resulting from an increase in
the size of our board, may only be filled by the affirmative vote of a majority of our directors then in office even if less than a quorum.
The limitations on removal of directors, together with the treatment of vacancies, has the effect of making it more difficult for stockholders
to change the composition of our board of directors.
Meetings of Stockholders
Our certificate of incorporation provide that the President, the Chairman
of the Board, if any, or any two members of the board of directors, or by the Secretary or any other officer upon the written request
of one or more stockholders holding of record at least a majority of the outstanding shares of stock of the corporation entitled to vote
at such meeting may call special meetings of stockholders and only those matters set forth in the notice of the special meeting may be
considered or acted upon at a special meeting of stockholders. Our bylaws limit the business that may be conducted at an annual meeting
of stockholders to those matters properly brought before the meeting.
Amendment to Certificate of Incorporation and Bylaws
Any amendment of our certificate of incorporation must first be approved
by a majority of our board of directors and must thereafter be approved by the affirmative vote of the holders of a majority of the outstanding
shares of our common stock. Our bylaws may be amended by the affirmative vote of a majority of the directors present at any regular or
special meeting of the board of directors at which a quorum is present; and may also be amended by the affirmative vote of the holders
of a majority of the shares of our capital stock issued and outstanding and entitled to vote at any regular meeting of stockholders, or
at any special meeting of stockholders provided notice of such alteration, amendment, repeal or adoption of new by-laws shall have been
stated in the notice of such special meeting.
Section 203 of the Delaware General Corporation Law
We are subject to the provisions of Section 203 of the Delaware
General Corporation Law. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a “business
combination” with an “interested stockholder” for a three-year period following the time that this stockholder becomes
an interested stockholder, unless the business combination is approved in a prescribed manner. Under Section 203, a business combination
between a corporation and an interested stockholder is prohibited unless it satisfies one of the following conditions:
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before the stockholder became interested, our board of directors approved either the business combination or the transaction which
resulted in the stockholder becoming an interested stockholder;
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upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of
determining the voting
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stock outstanding, shares owned by persons who are directors and also officers, and employee stock plans, in some instances, but not
the outstanding voting stock owned by the interested stockholder; or
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at or after the time the stockholder became interested, the business combination was approved by our board of directors and authorized
at an annual or special meeting of the stockholders by the affirmative vote of at least two-thirds of the outstanding voting stock which
is not owned by the interested stockholder.
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Section 203 defines a business combination to include:
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any merger or consolidation involving the corporation and the interested stockholder;
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any sale, transfer, lease, pledge or other disposition involving the interested stockholder of 10% or more of the assets of the corporation;
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subject to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation
to the interested stockholder;
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subject to exceptions, any transaction involving the corporation that has the effect of increasing the proportionate share of the
stock of any class or series of the corporation beneficially owned by the interested stockholder; and
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the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided
by or through the corporation.
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In general, Section 203 defines an interested stockholder as any
entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated
with or controlling or controlled by the entity or person.
DESCRIPTION
OF DEBT SECURITIES
We may offer debt securities which may be senior
or subordinated. We refer to senior debt securities and subordinated debt securities collectively as debt securities. Each series of debt
securities may have different terms. The following description summarizes the general terms and provisions of the debt securities. We
will describe the specific terms of the debt securities and the extent, if any, to which the general provisions summarized below apply
to any series of debt securities in the prospectus supplement relating to the series and any applicable free writing prospectus that we
authorize to be delivered.
We may issue senior debt securities from time
to time, in one or more series under a senior indenture to be entered into between us and a senior trustee to be named in a prospectus
supplement, which we refer to as the senior trustee. We may issue subordinated debt securities from time to time, in one or more series,
under a subordinated indenture to be entered into between us and a subordinated trustee to be named in a prospectus supplement, which
we refer to as the subordinated trustee. The forms of senior indenture and subordinated indenture are filed as exhibits to the registration
statement of which this prospectus forms a part. Together, the senior indenture and the subordinated indenture are referred to as the
indentures and, together, the senior trustee and the subordinated trustee are referred to as the trustees. This prospectus briefly outlines
some of the provisions of the indentures. The following summary of the material provisions of the indentures is qualified in its entirety
by the provisions of the indentures, including definitions of certain terms used in the indentures. Wherever we refer to particular sections
or defined terms of the indentures, those sections or defined terms are incorporated by reference in this prospectus or the applicable
prospectus supplement. You should review the indentures that are filed as exhibits to the registration statement of which this prospectus
forms a part for additional information. As used in this prospectus, the term “debt securities” includes the debt securities
being offered by this prospectus and all other debt securities issued by us under the indentures.
General
The indentures:
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do not limit the amount of debt securities that we may issue;
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allow us to issue debt securities in one or more series;
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do not require us to issue all of the debt securities of a series at the same time; and
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allow us to reopen a series to issue additional debt securities without the consent of the holders of
the debt securities of such series.
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Unless otherwise provided in the applicable prospectus
supplement, the senior debt securities will be unsubordinated obligations and will rank equally with all of our other unsecured and unsubordinated
indebtedness. Payments on the subordinated debt securities will be subordinated to the prior payment in full of all of our senior indebtedness,
as described under “Subordination” and in the applicable prospectus supplement.
Each indenture provides that we may, but need
not, designate more than one trustee under an indenture. Any trustee under an indenture may resign or be removed and a successor trustee
may be appointed to act with respect to the series of debt securities administered by the resigning or removed trustee. If two or more
persons are acting as trustee with respect to different series of debt securities, each trustee shall be a trustee of a trust under the
applicable indenture separate and apart from the trust administered by any other trustee. Except as otherwise indicated in this prospectus,
any action described in this prospectus to be taken by each trustee may be taken by each trustee with respect to, and only with respect
to, the one or more series of debt securities for which it is trustee under the applicable indenture.
The prospectus supplement for each offering will
provide the following terms, where applicable:
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the title of the debt securities and whether they are senior or subordinated;
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any limit upon the aggregate principal amount of the debt securities of that series;
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the date or dates on which the principal of the debt securities of the series is payable;
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the price at which the debt securities will be issued, expressed as a percentage of the principal and,
if other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the
maturity thereof or, if applicable, the portion of the principal amount of such debt securities that is convertible into another security
of ours or the method by which any such portion shall be determined;
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the rate or rates at which the debt securities of the series shall bear interest or the manner of calculation
of such rate or rates, if any;
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the date or dates from which interest will accrue, the interest payment dates on which such interest will
be payable or the manner of determination of such interest payment dates, the place(s) of payment, and the record date for the determination
of holders to whom interest is payable on any such interest payment dates or the manner of determination of such record dates;
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the right, if any, to extend the interest payment periods and the duration of such extension;
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the period or periods within which, the price or prices at which and the terms and conditions upon which
debt securities of the series may be redeemed, converted or exchanged, in whole or in part;
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our obligation, if any, to redeem or purchase debt securities of the series pursuant to any sinking fund,
mandatory redemption, or analogous provisions (including payments made in cash in satisfaction of future sinking fund obligations) or
at the option of a holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon
which, debt securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
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the form of the debt securities of the series including the form of the Certificate of Authentication
for such series;
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if other than minimum denominations of one thousand U.S. dollars ($1,000) or any integral multiple of
$1,000 thereof, the denominations in which the debt securities of the series shall be issuable;
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whether the debt securities of the series shall be issued in whole or in part in the form of a global
debt security or global debt securities; the terms and conditions, if any, upon which such global debt security or global debt securities
may be exchanged in whole or in part for other individual debt securities; and the depositary for such global debt security or global
debt securities;
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whether the debt securities will be convertible into or exchangeable for common stock or other securities
of ours or any other Person and, if so, the terms and conditions upon which such debt securities will be so convertible or exchangeable,
including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional
(at our option or the holders’ option) conversion or exchange features, and the applicable conversion or exchange period;
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any additional or alternative events of default to those set forth in the indenture;
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any additional or alternative covenants to those set forth in the indenture;
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the currency or currencies including composite currencies, in
which payment of the principal of (and premium, if any) and interest, if any, on such debt securities shall be payable (if other than
the currency of the United States of America), which unless otherwise specified shall be the currency of the United States of America
as at the time of payment is legal tender for payment of public or private debts;
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if the principal of (and premium, if any), or interest,, if any, on such debt securities is to be payable,
at our election or at the election of any holder thereof, in a coin or currency other than that in which such debt securities are stated
to be payable, then the period or periods within which, and the terms and conditions upon which, such election may be made;
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whether interest will be payable in cash or additional debt securities at our or the holders’ option
and the terms and conditions upon which the election may be made;
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the terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium,
if any and principal amounts of the debt securities of the series to any holder that is not a “United States person” for federal
tax purposes;
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additional or alternative provisions, if any, related to defeasance and discharge of the offered debt
securities than those set forth in the indenture;
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the applicability of any guarantees;
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any restrictions on transfer, sale or assignment of the debt securities of the series; and
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any other terms of the debt securities (which may supplement, modify or delete any provision of the indenture
insofar as it applies to such series).
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We may issue debt securities that provide for
less than the entire principal amount thereof to be payable upon declaration of acceleration of the maturity of the debt securities. We
refer to any such debt securities throughout this prospectus as “original issue discount securities.”
We will provide you with more information in the
applicable prospectus supplement regarding any deletions, modifications, or additions to the events of default or covenants that are described
below, including any addition of a covenant or other provision providing event risk or similar protection.
Payment
Unless otherwise provided in the applicable prospectus
supplement, the principal of, and any premium or make-whole amount, and interest on, any series of the debt securities will be payable
by mailing a check to the address of the person entitled to it as it appears in the applicable register for the debt securities or by
wire transfer of funds to that person at an account maintained within the United States.
All monies that we pay to a paying agent or a
trustee for the payment of the principal of, and any premium, or interest on, any debt security will be repaid to us if unclaimed at the
end of two years after the obligation underlying payment becomes due and payable. After funds have been returned to us, the holder of
the debt security may look only to us for payment, without payment of interest for the period which we hold the funds.
Merger, Consolidation or Sale of Assets
The indentures provide that we may, without the
consent of the holders of any outstanding debt securities, (i) consolidate with, (ii) sell, lease or convey all or substantially
all of our assets to, or (iii) merge with or into, any other entity provided that:
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either we are the continuing entity, or the successor entity,
if other than us, assumes the obligations (a) to pay the principal of, and any premium, and interest on, all of the debt securities
and (b) to duly perform and observe all of the covenants and conditions contained in the applicable indenture; and in the event
the debt securities are convertible into or exchangeable for common stock or other securities of ours, such successor entity will, by
such supplemental indenture, make provision so that the holders of debt securities of that series shall thereafter be entitled to receive
upon conversion or exchange of such debt securities the number of securities or property to which a holder of the number of common stock
or other securities of ours deliverable upon conversion or exchange of those debt securities would have been entitled had such conversion
or exchange occurred immediately prior to such consolidation, merger, sale, conveyance, transfer or other disposition; and
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an officers’ certificate and legal opinion covering such conditions are delivered to each applicable
trustee.
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Events of Default, Notice and Waiver
Unless the applicable prospectus supplement states
otherwise, when we refer to “events of default” as defined in the indentures with respect to any series of debt securities,
we mean:
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default in the payment of any installment of interest on any debt security of such series continuing for
90 days unless such date has been extended or deferred;
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default in the payment of principal of, or any premium on, any debt security of such series when due and
payable unless such date has been extended or deferred;
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default in the performance or breach of any covenant or warranty in the debt securities or in the indenture
by us continuing for 90 days after written notice described below;
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bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of
us; and
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any other event of default provided with respect to a particular series of debt securities.
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If an event of default (other than an event of
default described in the fourth bullet point above) occurs and is continuing with respect to debt securities of any series outstanding,
then the applicable trustee or the holders of 25% or more in principal amount of the debt securities of that series will have the right
to declare the principal amount of, and accrued interest on, all the debt securities of that series to be due and payable. If an event
of default described in the fourth bullet point above occurs, the principal amount of, and accrued interest on, all the debt securities
of that series will automatically become and will be immediately due and payable without any declaration or other act on the part of the
trustee or the holders of the debt securities. However, at any time after such a declaration of acceleration has been made, but before
a judgment or decree for payment of the money due has been obtained by the applicable trustee, the holders of at least a majority in principal
amount of outstanding debt securities of such series or of all debt securities then outstanding under the applicable indenture may rescind
and annul such declaration and its consequences if:
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we have deposited with the applicable trustee all required payments of the principal, any premium, interest
and, to the extent permitted by law, interest on overdue installment of interest, plus applicable fees, expenses, disbursements and advances
of the applicable trustee; and
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all events of default, other than the non-payment of accelerated principal, or a specified portion thereof,
and any premium, have been cured or waived.
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The indentures provide that holders of debt securities of any
series may not institute any proceedings, judicial or otherwise, with respect to such indenture or for any remedy under the indenture,
unless the trustee fails to act for a period of 90 days after the trustee has received a written request to institute proceedings in
respect of an event of default from the holders of 25% or more in principal amount of the outstanding debt securities of such series,
as well as an offer of indemnity reasonably satisfactory to the trustee. However, this provision will not prevent any holder of debt
securities from instituting suit for the enforcement of payment of the principal of, and any premium, and interest on, such debt securities
at the respective due dates thereof.
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The indentures provide that, subject to provisions in each indenture relating to its duties in the case
of a default, a trustee has no obligation to exercise any of its rights or powers at the request or direction of any holders of any series
of debt securities then outstanding under the indenture, unless the holders have offered to the trustee reasonable security or indemnity.
The holders of at least a majority in principal amount of the outstanding debt securities of any series or of all debt securities then
outstanding under an indenture shall have the right to direct the time, method and place of conducting any proceeding for any remedy available
to the applicable trustee, or of exercising any trust or power conferred upon such trustee. However, a trustee may refuse to follow any
direction which:
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is in conflict with any law or the applicable indenture;
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may involve the trustee in personal liability; or
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may be unduly prejudicial to the holders of debt securities of the series not joining the proceeding.
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Within 120 days after the close of each fiscal
year, we will be required to deliver to each trustee a certificate, signed by one of our several specified officers, stating whether or
not that officer has knowledge of any default under the applicable indenture. If the officer has knowledge of any default, the notice
must specify the nature and status of the default.
Modification of the Indentures
Subject to certain exceptions, the indentures
may be amended with the consent of the holders of a majority in aggregate principal amount of the outstanding debt securities of all series
affected by such amendment (including consents obtained in connection with a tender offer or exchange for the debt securities of such
series).We and the applicable trustee may make modifications and amendments of an indenture without the consent of any holder of debt
securities for any of the following purposes:
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to cure any ambiguity, defect, or inconsistency in the applicable indenture or in the Securities of any
series;
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to comply with the covenant described above under “Merger, Consolidation or Sale of Assets”;
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to provide for uncertificated debt securities in addition to or in place of certificated debt securities;
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to add events of default for the benefit of the holders of all or any series of debt securities;
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to add the covenants, restrictions, conditions or provisions relating to us for the benefit of the holders
of all or any series of debt securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less
than all series of debt securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely
for the benefit of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an event of default, or to surrender any right or power in the applicable indenture conferred upon
us;
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to add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount,
terms, or purposes of issue, authentication, and delivery of debt securities, as set forth in the applicable indenture;
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to make any change that does not adversely affect the rights of any holder of notes under the applicable
indenture in any material respect;
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to provide for the issuance of and establish the form and terms and conditions of the debt securities
of any series as provided in the applicable indenture, to establish the form of any certifications required to be furnished pursuant to
the terms of the applicable indenture or any series of debt securities under the applicable indenture, or to add to the rights of the
holders of any series of debt securities;
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to evidence and provide for the acceptance of appointment under the applicable indenture by a successor
trustee or to appoint a separate trustee with respect to any series;
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to comply with any requirements of the SEC or any successor in connection with the qualification of the
indenture under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act; or
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to conform the applicable indenture to this “Description of Debt Securities” or any other
similarly titled section in any prospectus supplement or other offering document relating to a series of debt securities.
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Subordination
Payment by us of the principal of, premium, if
any, and interest on any series of subordinated debt securities issued under the subordinated indenture will be subordinated to the extent
set forth in an indenture supplemental to the subordinated indenture relating to such series.
Discharge, Defeasance and Covenant Defeasance
Unless otherwise provided in the applicable prospectus
supplement, the indentures allow us to discharge our obligations to holders of any series of debt securities issued under any indenture
when:
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either (i) all securities of such series have already been delivered to the applicable trustee for
cancellation; or (ii) all securities of such series have not already been delivered to the applicable trustee for cancellation but
(a) have become due and payable, (b) will become due and payable within one year, or (c) if redeemable at our option, are
to be redeemed within one year, and we have irrevocably deposited with the applicable trustee, in trust, funds in such currency or currencies,
or governmental obligations in an amount sufficient to pay the entire indebtedness on such debt securities in respect of principal and
any premium, and interest to the date of such deposit if such debt securities have become due and payable or, if they have not, to the
stated maturity or redemption date; or
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we have paid or caused to be paid all other sums payable.
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Unless otherwise provided in the applicable prospectus
supplement, the indentures provide that, upon our irrevocable deposit with the applicable trustee, in trust, of an amount, in such currency
or currencies in which such debt securities are payable at stated maturity, or government obligations, or both, applicable to such debt
securities, which through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount
sufficient to pay the principal of, and any premium or make-whole amount, and interest on, such debt securities, and any mandatory sinking
fund or analogous payments thereon, on the scheduled due dates therefor, the issuing company shall be released from its obligations with
respect to such debt securities under the applicable indenture or, if provided in the applicable prospectus supplement, its obligations
with respect to any other covenant, and any omission to comply with such obligations shall not constitute an event of default with respect
to such debt securities.
The applicable prospectus supplement may further
describe the provisions, if any, permitting such defeasance or covenant defeasance, including any modifications to the provisions described
above, with respect to the debt securities of or within a particular series.
Conversion Rights
The terms and conditions, if any, upon which
the debt securities are convertible into common stock or other securities of ours will be set forth in the applicable prospectus
supplement. The terms will include whether the debt securities are convertible into shares of common stock or other securities of
ours, the conversion price, or manner of calculation thereof, the conversion period, provisions as to whether conversion will be at
the issuing company’s option or the option of the holders, the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of the debt securities and any restrictions on conversion.
Governing Law
The indentures and the debt securities will be governed by and construed
in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
DESCRIPTION
OF WARRANTS
We may issue warrants to purchase debt securities or common stock.
We may offer warrants separately or together with one or more additional warrants, debt securities or common stock, or any combination
of those securities in the form of units, as described in the applicable prospectus supplement. If we issue warrants as part of a unit,
the accompanying prospectus supplement will specify whether those warrants may be separated from the other securities in the unit prior
to the expiration date of the warrants. The applicable prospectus supplement will also describe the following terms of any warrants:
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the specific designation and aggregate number of, and the offering price at which we will issue, the warrants;
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the currency or currency units in which the offering price, if any, and the exercise price are payable;
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the date on which the right to exercise the warrants will begin and the date on which that right will
expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise
the warrants;
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whether the warrants are to be sold separately or with other securities as parts of units;
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whether the warrants will be issued in definitive or global form or in any combination of these forms,
although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security included in
that unit;
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any applicable material U.S. federal income tax consequences;
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the identity of the warrant agent for the warrants and of any other depositaries, execution or paying
agents, transfer agents, registrars or other agents;
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the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants
on any securities exchange;
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the designation and terms of any equity securities purchasable upon exercise of the warrants;
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the designation, aggregate principal amount, currency and terms of any debt securities that may be purchased
upon exercise of the warrants;
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if applicable, the designation and terms of the debt securities or common stock with which the warrants
are issued and, the number of warrants issued with each security;
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if applicable, the date from and after which any warrants issued as part of a unit and the related debt
securities or common stock will be separately transferable;
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the number of shares of common stock purchasable upon exercise of a warrant and the price at which those
shares may be purchased;
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if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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information with respect to book-entry procedures, if any;
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the antidilution provisions of, and other provisions for changes to or adjustment in the exercise price
of, the warrants, if any;
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any redemption or call provisions; and
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any additional terms of the warrants, including terms, procedures and limitations relating to the exchange
or exercise of the warrants.
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Specific warrant agreements will contain additional important terms
and provisions and will be incorporated by reference as an exhibit to the registration statement of which this prospectus forms a part.
DESCRIPTION
OF UNITS
The following description, together with the additional information
that we include in any applicable prospectus supplements and in any related free writing prospectuses, summarizes the material terms and
provisions of the units that we may offer under this prospectus. While the terms we have summarized below will apply generally to any
units that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable
prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.
We will file as exhibits to the registration statement of which this
prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of unit agreement that describes
the terms of the series of units we are offering, and any supplemental agreements, before the issuance of the related series of units.
The following summaries of material terms and provisions of the units are subject to, and qualified in their entirety by reference to,
all the provisions of the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read
the applicable prospectus supplements related to the particular series of units that we may offer under this prospectus, as well as any
related free writing prospectuses and the complete unit agreement and any supplemental agreements that contain the terms of the units.
General
We may issue units comprised of shares of common stock, debt securities,
warrants and units in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included
in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement
under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time
or at any time before a specified date.
We will describe in the applicable prospectus supplement the terms
of the series of units, including:
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designation and terms of the units, including whether and under what circumstances the securities comprising
the units may be held or transferred separately;
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any provisions of the governing unit agreement that differ from those described below; and
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities
comprising the units.
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The provisions described in this section, as well as those described
under “Description of Capital Stock,” “Description of Debt Securities” and “Description of Warrants,”
will apply to each unit and to the common stock, debt securities and warrants included in each unit, respectively.
Issuance in Series
We may issue units in such amounts and in such numerous distinct series
as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent under the applicable unit
agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single bank or trust company
may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case of any default by us
under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or
to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce
by appropriate legal action its rights as holder under any security included in the unit.
Title
We, the unit agent and any of its agents, may treat the registered
holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any purpose and as the person entitled
to exercise the rights attaching to the units so requested, despite any notice to the contrary.
PLAN
OF DISTRIBUTION
We may sell securities through any one or more of the following methods
from time to time:
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to or through underwriters, brokers or dealers;
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directly to one or more other purchasers in negotiated sales or competitively bid transactions;
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through a block trade in which the broker or dealer engaged to handle the block trade will attempt to
sell the securities as agent, but may position and resell a portion of the block as principal to facilitate the transaction; or
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through a combination of any of the above methods of sale.
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We may directly solicit offers to purchase securities, or agents may
be designated to solicit such offers. We will, in the prospectus supplement relating to such offering, name any agent that could be viewed
as an underwriter under the Securities Act and describe any commissions that we must pay. Any such agent will be acting on a best efforts
basis for the period of its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment basis. This prospectus
may be used in connection with any offering of our securities through any of these methods or other methods described in the applicable
prospectus supplement.
The distribution of the securities may be effected from time to time
in one or more transactions:
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at a fixed price, or prices, which may be changed from time to time;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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Each prospectus supplement will describe the method of distribution
of the securities and any applicable restrictions.
The prospectus supplement with respect to the securities of a particular
series will describe the terms of the offering of the securities, including the following:
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the name of the agent or any underwriters;
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the public offering or purchase price;
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any discounts and commissions to be allowed or paid to the agent or underwriters;
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all other items constituting underwriting compensation;
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any discounts and commissions to be allowed or paid to dealers; and
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any exchanges on which the securities will be listed.
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If any underwriters or agents are utilized in the sale of the
securities in respect of which this prospectus is delivered, we will enter into an underwriting agreement or other agreement with
them at the time of sale to them, and we will set forth in the prospectus supplement relating to such offering the names of the
underwriters or agents and the terms of the related agreement with them.
If a dealer is utilized in the sale of the securities in respect of
which the prospectus is delivered, we will sell such securities to the dealer, as principal. The dealer may then resell such securities
to the public at varying prices to be determined by such dealer at the time of resale.
If we offer securities in a subscription rights offering to our existing
security holders, we may enter into a standby underwriting agreement with dealers, acting as standby underwriters. We may pay the standby
underwriters a commitment fee for the securities they commit to purchase on a standby basis. If we do not enter into a standby underwriting
arrangement, we may retain a dealer-manager to manage a subscription rights offering for us.
Agents, underwriters, dealers and other persons may be entitled under
agreements which they may enter into with us to indemnification by us against certain civil liabilities, including liabilities under the
Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary course of business.
If so indicated in the applicable prospectus supplement, we will authorize
underwriters or other persons acting as our agents to solicit offers by certain institutions to purchase securities from us pursuant to
delayed delivery contracts providing for payment and delivery on the date stated in the prospectus supplement. Each contract will be for
an amount not less than, and the aggregate amount of securities sold pursuant to such contracts shall not be less nor more than, the respective
amounts stated in the prospectus supplement. Institutions with whom the contracts, when authorized, may be made include commercial and
savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions,
but shall in all cases be subject to our approval. Delayed delivery contracts will not be subject to any conditions except that:
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the purchase by an institution of the securities covered under that contract shall not at the time of
delivery be prohibited under the laws of the jurisdiction to which that institution is subject; and
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if the securities are also being sold to underwriters acting as principals for their own account, the
underwriters shall have purchased such securities not sold for delayed delivery. The underwriters and other persons acting as our agents
will not have any responsibility in respect of the validity or performance of delayed delivery contracts.
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Certain agents, underwriters and dealers, and their associates and
affiliates may be customers of, have borrowing relationships with, engage in other transactions with, or perform services, including investment
banking services, for us or one or more of our respective affiliates in the ordinary course of business.
In order to facilitate the offering of the securities, any underwriters
may engage in transactions that stabilize, maintain or otherwise affect the price of the securities or any other securities the prices
of which may be used to determine payments on such securities. Specifically, any underwriters may overallot in connection with the offering,
creating a short position for their own accounts. In addition, to cover overallotments or to stabilize the price of the securities or
of any such other securities, the underwriters may bid for, and purchase, the securities or any such other securities in the open market.
Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions
allowed to an underwriter or a dealer for distributing the securities in the offering if the syndicate repurchases previously distributed
securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of these activities may
stabilize or maintain the market price of the securities above independent market levels. Any such underwriters are not required to engage
in these activities and may end any of these activities at any time.
Under Rule 15c6-1 of the Exchange Act, trades in the
secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree
otherwise. The applicable prospectus supplement may provide that the original issue date for your securities may be more than two
scheduled business days after the trade date for your securities. Accordingly, in such a case, if you wish to trade securities on
any date prior to the third business day before the original issue date for your securities, you will be required, by virtue of the
fact that your securities initially are expected to settle in more than two scheduled business days after the trade date for your
securities, to make alternative settlement arrangements to prevent a failed settlement.
The securities may be new issues of securities and may have no established
trading market. The securities may or may not be listed on a national securities exchange. We can make no assurance as to the liquidity
of or the existence of trading markets for any of the securities.
In compliance with the guidelines of the Financial Industry Regulatory
Authority, or FINRA, the aggregate maximum discount, commission or agency fees or other items constituting underwriting compensation to
be received by any FINRA member or independent broker-dealer will not exceed 8% of the proceeds from any offering pursuant to this prospectus
and any applicable prospectus supplement.
LEGAL
MATTERS
Unless the applicable prospectus supplement indicates otherwise, the
validity of the securities in respect of which this prospectus is being delivered will be passed upon by Goodwin Procter LLP.
EXPERTS
The consolidated financial statements of Brainstorm Cell Therapeutics
Inc. as of December 31, 2020 and 2019 and for each of the years in the two-year period ended December 31, 2020 incorporated
in this Prospectus by reference from the Brainstorm Cell Therapeutics Inc. Annual Report on Form 10-K for the year ended December 31, 2020 have been audited by Brightman Almagor Zohar & Co., a Firm in the Deloitte Global Network, an independent registered public
accounting firm, as stated in their report thereon, incorporated herein by reference, and have been incorporated in this Prospectus and
Registration Statement in reliance upon such report and upon the authority of such firm as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at www.sec.gov.
Copies of certain information filed by us with the SEC are also available on our website at www.brainstorm-cell.com. Our website
is not a part of this prospectus and is not incorporated by reference in this prospectus.
This prospectus is part of a registration statement we filed with the
SEC. This prospectus omits some information contained in the registration statement in accordance with SEC rules and regulations.
You should review the information and exhibits in the registration statement for further information on us and the securities we are offering.
Statements in this prospectus concerning any document we filed as an exhibit to the registration statement or that we otherwise filed
with the SEC are not intended to be comprehensive and are qualified by reference to these filings. You should review the complete document
to evaluate these statements. You can obtain a copy of the registration statement from the SEC at the address listed above or from the
SEC’s website.
INCORPORATION
BY REFERENCE
The SEC allows us to incorporate by reference much of the information
we file with the SEC, which means that we can disclose important information to you by referring you to those publicly available documents.
The information that we incorporate by reference in this prospectus is considered to be part of this prospectus.
Because we are incorporating by reference future filings with the SEC,
this prospectus is continually updated and those future filings may modify or supersede some of the information included or incorporated
in this prospectus. This means that you must look at all of the SEC filings that we incorporate by reference to determine if any of the
statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. This prospectus
incorporates by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934, as amended, or the Exchange Act (in each case, other than those documents or the portions of those
documents not deemed to be filed) between the date of the initial registration statement and the effectiveness of the registration statement
and following the effectiveness of the registration statement until the offering of the securities under the registration statement is
terminated or completed:
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•
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Quarterly Reports on Form 10-Q for the quarters ended March 31, 2021, and June 30, 2021, which were filed with the
SEC on April 26, 2021, and August 5, 2021, respectively;
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We incorporate by reference any future filings made with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act between the date of this prospectus and the termination of the offering.
Notwithstanding the foregoing, unless specifically stated to the contrary,
information that we furnish (and that is not deemed “filed” with the SEC) under Items 2.02 and 7.01 of any Current Report
on Form 8-K, including the related exhibits under Item 9.01, is not incorporated by reference into this prospectus or the registration
statement of which this prospectus is a part.
Any statement contained in a document that is incorporated by reference
will be modified or superseded for all purposes to the extent that a statement contained in this prospectus, or in any other document
that is subsequently filed with the SEC and incorporated by reference into this prospectus, modifies or is contrary to that previous statement.
Any statement so modified or superseded will not be deemed a part of this prospectus, except as so modified or superseded. Since information
that we later file with the SEC will update and supersede previously incorporated information, you should look at all of the SEC filings
that we incorporate by reference to determine if any of the statements in this prospectus or in any documents previously incorporated
by reference have been modified or superseded.
Upon request, we will provide, without charge, to each person, including
any beneficial owner, to whom a copy of this prospectus is delivered, a copy of the documents incorporated by reference into this prospectus
but not delivered therewith. You may request a copy of these filings, and any exhibits we have specifically incorporated by reference
as an exhibit in this prospectus, at no cost by writing or telephoning us at the following address: Brainstorm Cell Therapeutics Inc.
1325 Avenue of Americas, 28th Floor, New York, NY 10019, Attention: Chief Executive Officer; telephone: (201) 488-0460.
You may also access these documents, free of charge on the SEC’s
website at www.sec.gov or on our website at www.brainstorm-cell.com. Information contained on our website is not incorporated
by reference into this prospectus and you should not consider any information on, or that can be accessed from, our website as part of
this prospectus.
This prospectus is part of a registration statement we filed with the
SEC. We have incorporated exhibits into this registration statement. You should read the exhibits carefully for provisions that may be
important to you. You should rely only on the information incorporated by reference or provided in this prospectus. We have not authorized
anyone to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted.
You should not assume that the information in this prospectus or in the documents incorporated by reference is accurate as of any date
other than the date on the front of this prospectus or those documents.
$200,000,000
Common Stock
Debt Securities
Warrants
Units
PROSPECTUS
,
2021
We have not authorized any dealer, salesperson or other person to give
any information or represent anything not contained in this prospectus. You must not rely on any unauthorized information. If anyone provides
you with different or inconsistent information, you should not rely on it. This prospectus does not offer to sell any securities in any
jurisdiction where it is unlawful. Neither the delivery of this prospectus, nor any sale made hereunder, shall create any implication
that the information in this prospectus is correct after the date hereof.
The information in this prospectus is not complete
and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission
is effective. This prospectus is not an offer to sell these securities and we are not soliciting offers to buy these securities in any
jurisdiction where the offer or sale is not permitted.
Subject to completion, dated
August 9, 2021
PROSPECTUS
$100,000,000
Common Stock
This prospectus and any accompanying prospectus relate to the offer
and sale from time to time of shares of our common stock, par value $0.00005 per share, having an aggregate offering price of up to $100,000,000.
Shares of our common stock to which this prospectus relates may be offered over a period of time and from time to time through SVB Leerink
LLC and Raymond James & Associates, Inc., as our distribution agents, which we refer to as our Distribution Agents, for
sale to the public in accordance with the terms of an Amended and Restated Distribution Agreement, or the Distribution Agreement, we have
entered into with the Distribution Agents. Sales of shares of our common stock, if any, may be made in transactions that are deemed to
be “at-the-market offerings” as defined in Rule 415 under the Securities Act of 1933, as amended, or the Securities Act,
including sales made directly on or through the Nasdaq Capital Market, sales made to or through a market maker other than on an exchange,
in transactions at market prices prevailing at the time of sale or at prices related to such market prices, or any other method permitted
by law. Under the terms of the Distribution Agreement, we may also sell our common stock to either of the Distribution Agents as principals
for their own accounts at prices agreed upon at the time of sale. If we sell our common stock to the Distribution Agents as principals,
we will enter into a separate terms agreement with the Distribution Agents. The Distribution Agents are not required to sell any specific
dollar amount or number of securities, but will act as the Distribution Agents using commercially reasonable efforts consistent with their
normal trading and sales practice, on mutually agreed upon terms between us and the Distribution Agents. There is no arrangement for funds
to be received in any escrow, trust or similar arrangement.
We may offer and sell up to an additional $100,000,000 of common stock
through the Distribution Agents pursuant to this prospectus. Our common stock is listed on the Nasdaq Capital Market under the symbol
“BCLI.” On August 6, 2021, the last reported sale price of our common stock on the Nasdaq Capital Market was $3.96 per
share.
We will pay the Distribution Agents a commission rate equal to 3.0%
of the gross sales price of all shares sold by them as the Distribution Agents under the Distribution Agreement. In connection with the
sale of our common stock on our behalf, the Distribution Agents will be deemed to be “underwriters” within the meaning of
the Securities Act and the compensation of the Distribution Agents will be deemed to be underwriting commissions. We have also agreed
to provide rights of indemnification and contribution to the Distribution Agents with respect to certain liabilities, including liabilities
under the Securities Act.
Investing in our common stock involves a high degree of risk. Before
deciding whether to invest in our common stock, you should review carefully the risks and uncertainties that are described in the “Risk
Factors” section beginning on page S-5 of this prospectus, and in the documents incorporated by reference herein, including
our most recent Annual Report on Form 10-K for the fiscal year ended December 31, 2020, as well as the risks and uncertainties
described in the other documents incorporated herein by reference.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this prospectus and any accompanying prospectus are truthful
or complete. Any representation to the contrary is a criminal offense.
SVB
Leerink Raymond
James
The date of this prospectus is
, 2021.
TABLE OF CONTENTS
We are responsible for the information contained
and incorporated by reference in this prospectus, in the accompanying prospectus, and in any related free writing prospectus we prepare
or authorize. We have not authorized anyone to give you any other information, and we take no responsibility for any other information
that others may give you. If you are in a jurisdiction where offers to sell, or solicitations of offers to purchase, the securities offered
by this documentation are unlawful, or if you are a person to whom it is unlawful to direct these types of activities, then the offer
presented in this document does not extend to you. The information contained in this document speaks only as of the date of this document,
unless the information specifically indicates that another date applies. Our business, financial condition, results of operations and
prospects may have changed since those dates.
ABOUT THIS PROSPECTUS
This prospectus is part of a shelf registration statement on Form S-3
that we filed with the Securities and Exchange Commission, or the SEC. We may offer shares of our common stock having an aggregate offering
price of up to $100,000,000 from time to time under this prospectus and the accompanying prospectus at prices and on terms to be determined
by market conditions at the time of the offering.
If the information contained in this prospectus differs or varies from
the information contained in any document incorporated by reference herein that was filed with the SEC before the date of this prospectus,
you should rely on the information set forth in this prospectus. If any statement in one of these documents is inconsistent with a statement
in another document having a later date (for example, a subsequently filed document deemed incorporated by reference in this prospectus),
the statement in the document having the later date modifies or supersedes the earlier statement. Any statement so modified or superseded
will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not, and the distribution agents have not, authorized anyone to provide you with information that
is in addition to or different from that contained or incorporated by reference in this prospectus or contained in any permitted free
writing prospectuses we may authorize for use in connection with this offering. We and the distribution agents take no responsibility
for, and can provide no assurance as to the reliability of, any other information that others may provide.
The information contained in this prospectus and the documents incorporated
by reference herein is accurate only as of their respective dates, regardless of the time of delivery of any such document or the time
of any sale of our common stock. Our business, financial condition, results of operations and prospects may have changed since those dates.
It is important for you to read and consider all information contained or incorporated by reference in this prospectus in making your
investment decision. You should read this prospectus, as well as the documents incorporated by reference herein, the additional information
described under the section titled “Where You Can Find More Information” and “Incorporation of Certain Documents by
Reference” in this prospectus and any free writing prospectus that we may authorize for use in connection with this offering, before
investing in our common stock.
We further note that the representations, warranties and covenants
made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference in this prospectus were made
solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties
to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties
or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied
on as accurately representing the current state of our affairs.
We use various trademarks and trade names in our business,
including without limitation our corporate name and logo. All other trademarks or trade names referred to in this prospectus are the
property of their respective owners. Solely for
convenience, the trademarks and trade names in this prospectus may be referred to without the ® and ™ symbols,
but such references should not be construed as any indicator that their respective owners will not assert, to the fullest extent
under applicable law, their rights thereto. This prospectus and the documents incorporated by reference herein also contain
estimates, projections and other information concerning our industry, our business, and the markets for certain diseases, including
data regarding the estimated size of those markets, and the incidence and prevalence of certain medical conditions. Information that
is based on estimates, forecasts, projections, market research or similar methodologies is inherently subject to uncertainties and
actual events or circumstances may differ materially from events and circumstances reflected in this information. Unless otherwise
expressly stated, we obtained this industry, business, market and other data from reports, research surveys, studies and similar
data prepared by market research firms and other third parties, industry, medical and general publications, government data and
similar sources. We are offering to sell, and seeking offers to buy, shares of our common stock only in jurisdictions where such
offers and sales are permitted. The distribution of this prospectus and the offering of our common stock in certain jurisdictions
may be restricted by law. Persons outside the United States who come into possession of this prospectus must inform themselves
about, and observe any restrictions relating to, the offering of our common stock and the distribution of this prospectus outside
the United States. This prospectus does not constitute, and may not be used in connection with, an offer to sell, or a solicitation
of an offer to buy, any securities offered by this prospectus by any person in any jurisdiction in which it is unlawful for such
person to make such an offer or solicitation.
Unless the context suggests otherwise, all references in this prospectus
and any free writing prospectus to “us,” “our,” “Brainstorm,” “we,” the “Company”
and similar designations refer to Brainstorm Cell Therapeutics Inc. and, where appropriate, our subsidiaries.
PROSPECTUS SUMMARY
This
summary highlights selected information about us and this offering and does not contain all of the information that you should consider
before investing in our common stock. Before investing in our common stock, you should carefully read the information contained and incorporated
by reference in this prospectus, including the section titled “Risk Factors” and the financial statements and accompanying
notes.
Our Business
Brainstorm Cell Therapeutics Inc. is a leading
biotechnology company committed to the development and commercialization of autologous cellular therapies for the treatment of neurodegenerative
diseases including: Amyotrophic Lateral Sclerosis (“ALS”, also known as Lou Gehrig’s disease); Progressive Multiple
Sclerosis (“PMS”); Alzheimer's disease (AD); and other neurodegenerative diseases. NurOwn®, our proprietary platform,
leverages cell culture methods to induce autologous bone marrow-derived mesenchymal stem cells (MSCs) to secrete high levels of neurotrophic
factors (NTFs), modulate neuroinflammatory and neurodegenerative disease processes, promote neuronal survival and improve neurological
function.
NurOwn® has been evaluated in a Phase 3 ALS
and a Phase 2 PMS clinical trial. We announced top-line data from our Phase 3 ALS trial on November 17, 2020. On March 24, 2021,
we announced positive topline data from our Phase 2 trial evaluating three repeated administrations of NurOwn®, each given 2 months
apart, as a treatment for PMS. On June 24, 2020, we announced a new clinical program focused on the development of NurOwn® as
a treatment for AD. We are currently evaluating next steps based on emerging scientific insights and the rapidly changing regulatory landscape
for AD following the recent FDA decision on Aducanumab.
Our wholly-owned Israeli subsidiary, Brainstorm
Cell Therapeutics Ltd. (“Israeli Subsidiary”), holds exclusive rights to commercialize NurOwn® technology through a licensing
agreement with Ramot (“Ramot”), the technology transfer company of Tel Aviv University, Israel. Our Israeli Subsidiary
was granted approval by the Israeli Ministry of Health (“MoH”) to treat ALS patients with NurOwn® under the Hospital Exemption
Pathway (“HE”).
NurOwn® has a strong and comprehensive intellectual
property portfolio and was granted Fast Track designation by the U.S. Food and Drug Administration (FDA) and Orphan Drug status by the
FDA and the European Medicines Agency (EMA) for ALS.
Implications of Being a Smaller Reporting Company
We are a “smaller reporting company” as defined in the
Securities Exchange Act of 1934, as amended. We may continue to be a smaller reporting company after this offering if either (i) the
market value of our shares held by non-affiliates is less than $250 million or (ii) our annual revenue was less than $100 million
during the most recently completed fiscal year and the market value of our shares held by non-affiliates is less than $700 million.
If we are a smaller reporting company at the time we cease to be an emerging growth company, we may continue to rely on exemptions from
certain disclosure requirements that are available to smaller reporting companies.
Corporate Information
We
are incorporated under the laws of the State of Delaware. Our principal executive offices are located at 1325 Avenue of Americas, 28th
Floor, New York, NY 10019, and our telephone number is (201) 488-0460. We also maintain an office in Petach Tikva, Israel. We maintain
a website at http://www.brainstorm-cell.com. No portion of our website is incorporated by reference into this prospectus
and you should not consider any information on, or that can be accessed through, our website as part of this prospectus. Our common stock
trades on The Nasdaq Capital Market under the symbol “BCLI”.
THE OFFERING
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Common stock offered by us:
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Shares of our common stock having an aggregate offering price of up to $100,000,000.
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Common stock to be outstanding after this offering:
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Up to 61,571,086 (as more fully described in the notes following this table), assuming sales of 25,252,525 shares of our common stock in this offering at an offering price of $3.96 per share, which was the last reported sale price of our common stock on The Nasdaq Capital Market on August 6, 2021. The actual number of shares issued will vary depending on the sales prices under this offering.
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Manner of offering:
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“At the market offering” that may be made from time to time on The Nasdaq Capital Market or other existing trading market for our common stock through our distribution agents, SVB Leerink LLC and Raymond James & Associates, Inc., or the Distribution Agents, and such other sales as agreed upon by us and the Distribution Agents. See “Plan of Distribution” on page S-20 of this prospectus.
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Use of proceeds:
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We intend to use the net proceeds from the sale of our common stock in this offering to advance our clinical programs and for working capital and general corporate purposes. See “Use of Proceeds” on page S-9 of this prospectus.
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Risk factors:
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Investing in our common stock involves risks. See “Risk Factors” beginning on page S-5 of this prospectus and under similar headings in the documents incorporated by reference herein for a discussion of the factors you should carefully consider before deciding to invest in our common stock.
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Nasdaq Capital Market symbol:
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“BCLI”
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All information in this prospectus related to the number of shares
of our common stock to be outstanding immediately after this offering is based on 36,318,561 shares of our common stock outstanding as
of June 30, 2021. The number of shares outstanding as of June 30, 2021, excludes:
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1,391,485 shares of common stock issuable upon the exercise of share options outstanding as of June 30, 2021, at a weighted average
exercise price of $4.6349 per share;
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3,366,666 shares of common stock issuable upon the exercise of warrants outstanding as of June 30, 2021, at a weighted average
exercise price of $5.7371 per share; and
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3,393,413 shares of common stock reserved for future issuance under our equity incentive plans as of June 30, 2021.
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Unless otherwise stated, all information contained in this prospectus
assumes no exercise of stock options after June 30, 2021, and reflects an assumed public offering price of $3.96, which was the last
reported sale price of our common stock on The Nasdaq Capital Market August 6, 2021.
RISK FACTORS
An
investment in our common stock involves a high degree of risk. Before you invest in our common stock, you should carefully consider the
risk factors set forth below, those risk factors related to us and our business described in “Item 1A. Risk Factors” in Part I
of our most recent Annual Report on Form 10-K, as amended, our most recent Quarterly Report on Form 10-Q, any subsequently filed
Quarterly Reports on Form 10-Q and any subsequently filed Current Reports on Form 8-K, which are incorporated herein by reference,
and those risk factors that may be included in any applicable prospectus supplement, together with all of the other information included
in this prospectus, any accompanying prospectus supplement and the documents we incorporate by reference, in evaluating an investment
in our common stock. If any of the risks discussed in the foregoing documents were to occur, our business, financial condition, results
of operations and cash flows could be materially adversely affected. Please read “Special Note Regarding Forward-Looking Statements.”
Risks Relating to this Offering and an Investment in Our Common
Stock
The number of shares of our common stock available for future
sale could adversely affect the market price of our common stock.
We cannot predict whether future issuances of
shares of our common stock or the availability of shares for resale in the open market will decrease the market price per share of our
common stock. We may sell shares of our common stock under this prospectus with an aggregate gross offering price of up to $100,000,000.
We may also sell additional shares of our common stock in the future under additional prospectus supplements which will accompany this
prospectus or in other offerings or other acquisitions we may undertake. Sales of substantial amounts of shares of our common stock in
the public market, or the perception that such sales might occur, could adversely affect the market price of our common stock.
Our management will have broad discretion as to the use of proceeds
from this offering. You may not agree with the manner in which we use the proceeds and our use of those proceeds may not yield a favorable
return on investment.
We intend to use the net proceeds of this offering
to advance the Company’s clinical programs and for working capital and general corporate purposes. We have not designated the amount
of net proceeds we will use for any particular purpose and our management will retain broad discretion to allocate the net proceeds of
this offering. The net proceeds may be applied in ways with which some investors in this offering may not agree. Moreover, our management
may use the net proceeds for corporate purposes that may not increase our market value or make us more profitable. In addition, it may
take us some time to effectively deploy the net proceeds from this offering. Until the net proceeds are effectively deployed, our return
on equity and earnings per share may be negatively impacted. Management’s failure to use the net proceeds of this offering effectively
could have an adverse effect on our business, financial condition and results of operations.
Share ownership by our officers and directors and certain agreements
may make it more difficult for third parties to acquire us or effectuate a change of control that might be viewed favorably by other stockholders.
As of June 30, 2021, our executive officers
and directors beneficially owned, directly or indirectly, in the aggregate, approximately 21% of our common stock. As a result, if our
executive officers and directors were to oppose a third party’s acquisition proposal for, or a change in control of, the Company,
our executive officers and directors may have sufficient voting power to be able to block or at least delay such an acquisition or change
in control from taking place, even if other stockholders would support such a sale or change of control. In addition, a number of our
executive officers have change of control agreements which could increase the costs and, therefore, lessen the attractiveness of an acquisition
of the Company to a potential acquiring party.
We may sell additional shares of common stock in the future which
could result in dilution to our stockholders.
As of June 30, 2021, a total of approximately
63.7 million authorized but unissued shares of our common stock are available for future sale and issuance by action of our board of directors
alone, including sales of up to $100,000,000 in value of shares of our common stock under this prospectus. Accordingly, if we were to
sell additional shares in the future, our stockholders could suffer dilution in their investment in their shares of our common stock and
in their percentage ownership of the Company.
We may issue additional equity securities, or engage in other
transactions which could dilute our book value or affect the priority of our common stock, which may adversely affect the market price
of our common stock.
Our board of directors may determine from time
to time to raise additional capital by issuing additional shares of our common stock or other securities. In addition, we may issue additional
securities in connection with future acquisitions we may make. We are not restricted from issuing additional shares of common stock, including
securities that are convertible into or exchangeable for, or that represent the right to receive, common stock. We cannot predict or estimate
the amount, timing, or nature of any future offerings or issuances of additional stock in connection with acquisitions, or the prices
at which such offerings may be affected. Such offerings could be dilutive to common stockholders. New investors also may have rights,
preferences and privileges that are senior to, and that adversely affect, our then-current common stockholders. Additionally, if we raise
additional capital by making additional offerings of debt or securities, upon liquidation of the Company, holders of our debt securities,
and lenders with respect to other borrowings, will receive distributions of our available assets prior to the holders of our common stock.
Additional equity offerings may dilute the holdings of our existing stockholders or reduce the market price of our common stock, or both.
Holders of our common stock are not entitled to preemptive rights or other protections against dilution.
The regulatory approval process of NurOwn® for ALS is subject
to risks and uncertainties.
While we continue to assess the regulatory strategy for advancing
NurOwn® towards potential approval in ALS, the regulatory approval process for ALS is subject to significant uncertainty based
on the FDA’s position that the data from our randomized Phase 3 controlled clinical trial comparing NurOwn® to placebo
does not support a Biologic License Application (BLA). Notwithstanding the FDA’s position, the Company can still choose to
submit a BLA and we will consider pursuing this option or other evolving regulatory pathways, as appropriate. If after submitting a
BLA the FDA continues to assert that additional data is necessary, complying with any additional requests for information from
the FDA, or designing and conducting any new clinical trial will be time-consuming, expensive, and may delay or prevent our ability
to continue to study and develop NurOwn®, or result in a change in our regulatory strategy. If we are unable to adequately
address recommendations, concerns, requests, or objections of the FDA in a timely manner or at all, we could be delayed or prevented
from seeking approval of NurOwn® as a treatment for ALS or for any intended use.
A failure to maintain effective internal control over financial
reporting could have a material adverse effect on our business and stock prices.
Although we are not required to obtain or include
in our annual reports on Form 10-K an attestation report from our independent registered accountants with respect to the effectiveness
of our internal control over financial reporting, like all other public companies, our Chief Executive Officer and our Chief Financial
Officer are required, annually, to assess, and disclose their findings in our annual reports on Form 10-K with respect to, the effectiveness
of our internal control over financial reporting in a manner that meets the requirements of Section 404(a) of the Sarbanes-Oxley
Act. The rules governing the standards that must be met for our Chief Executive and Chief Financial Officers to assess and report
on the effectiveness of our internal control over financial reporting are complex and require significant documentation, testing and possible
remediation, which could significantly increase our operating expenses.
Additionally, if we are unable to maintain the
effectiveness of our internal control over financial reporting in the future, we may be unable to report our financial results accurately
and on a timely basis. In such an event, investors and clients may lose confidence in the accuracy and completeness of our financial statements,
as a result of which our liquidity, access to capital markets, and perceptions of our creditworthiness could be adversely affected and
the market prices of our common stock could decline. In addition, we could become subject to investigations by the Nasdaq Capital Market,
the SEC or other regulatory authorities, which could require us to expend additional financial and management resources. As a result,
an inability to maintain the effectiveness of our internal control over financial reporting in the future could have a material adverse
effect on our business, financial condition, results of operations and prospects.
If securities or industry analysts do not publish research or
publish inaccurate or unfavorable research about our business, our stock price and trading volume could decline.
The trading market for our common stock will depend
in part on the research and reports that securities or industry analysts publish about us or our business. If one or more of the analysts
who cover us downgrade our stock or publish inaccurate or unfavorable research about our business, our stock price would likely decline.
If one or more of these analysts cease coverage of our company or fail to publish reports on us regularly, demand for our stock could
decrease, which might cause our stock price and trading volume to decline.
The shares of our common stock offered under this prospectus
and any accompanying supplement may be sold in "at-the-market" offerings, and investors who buy shares at different times will
likely pay different prices.
Investors who purchase shares under this prospectus
and any accompanying prospectus supplement at different times will likely pay different prices, and so may experience different outcomes
in their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold,
and to determine the minimum sales price for shares sold. Investors may experience declines in the value of their shares as a result of
share sales made in connection with "at-the-market" offerings at prices lower than the prices they paid.
The actual number of shares we will issue under the distribution
agreement, at any one time or in total, is uncertain.
Subject to certain limitations in the Distribution
Agreement and compliance with applicable law, we and the Distribution Agents may mutually agree to sell shares of our common stock under
a transaction acceptance at any time throughout the term of the Distribution Agreement. The number of shares that are sold by the Distribution
Agents after agreement on the terms of the transaction acceptance will fluctuate based on the market price of the shares of our common
stock during the sales period and limits we set with the Distribution Agents. Because the price per share of each share sold will fluctuate
based on the market price of our shares of common stock during the sales period, it is not possible to predict the number of shares that
will ultimately be issued.
We do not anticipate paying any cash dividends on our common
stock in the foreseeable future. As a result, you will need to sell your shares of common stock to receive any income or realize a return
on your investment.
To date, we have not paid any cash dividends on
our common stock. We do not anticipate paying any cash dividends on our common stock in the foreseeable future. We cannot assure you that
we would, at any time, generate sufficient surplus cash that would be available for distribution to the holders of our common stock as
a dividend.
Changes
in tax law could adversely affect our business and financial condition.
The rules dealing with U.S. federal, state,
and local income taxation are constantly under review by persons involved in the legislative process and by the Internal Revenue Service
and the U.S. Treasury Department. Changes to tax laws (which changes may have retroactive application) could adversely affect us
or holders of our common stock. In recent years, many such changes have been made and changes are likely to continue to occur in
the future. Future changes in tax laws could have a material adverse effect on our business, cash flow, financial condition or results
of operations. We urge investors to consult with their legal and tax advisers regarding the implications of potential changes in
tax laws on an investment in our common stock.
CAUTIONARY STATEMENT ON FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated by reference in this
prospectus include, and any prospectus supplement or free writing prospectus may contain, “forward-looking statements” within
the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Exchange
Act. Any forward-looking statements presented in this prospectus, or which management may make orally or in writing from time to time,
are based on management’s beliefs and assumptions made by, and information currently available to, management. All statements, other
than statements of historical facts, contained or incorporated by reference in this prospectus are forward-looking statements. In some
cases you can identify such “forward-looking statements” by the use of words like “may,” “will,” “should,”
“could,” “expects,” “hopes,” “anticipates,” “believes,” “intends,”
“plans,” “projects,” “targets,” “goals,” “estimates,” “predicts,”
“likely,” “potential,” or “continue” or the negative of any of these terms or similar words. These
statements, descriptions, forecasts and projections constitute “forward-looking statements,” and as such involve known and
unknown risks, uncertainties, and other factors that may cause our actual results, levels of activity, performance and achievements to
be materially different from any results, levels of activity, performance and achievements expressed or implied by any such “forward-looking
statements.” These risks and uncertainties include, but are not limited to our need to raise additional capital, our ability to
continue as a going concern, regulatory approval of our NurOwn® treatment candidate, the success of our product development programs
and research, regulatory and personnel issues, development of a global market for our services, the ability to secure and maintain research
institutions to conduct our clinical trials, the ability to generate significant revenue, the ability of our NurOwn® treatment candidate
to achieve broad acceptance as a treatment option for ALS or other neurodegenerative diseases, our ability to manufacture and commercialize
our NurOwn® treatment candidate, obtaining patents that provide meaningful protection, competition and market developments, our ability
to protect our intellectual property from infringement by third parties, heath reform legislation, demand for our services, currency exchange
rates and product liability claims and litigation, disruptions in our business due to the COVID-19 outbreak, including our clinical
development activities.
Any forward-looking statements contained or incorporated by reference
in this prospectus reflect our current views with respect to future events or to our future financial performance and involve known and
unknown risks, uncertainties and other important factors that may cause our actual results, performance or achievements to be materially
different from any future results, performance or achievements expressed or implied by these forward-looking statements. See “Risk
Factors” for more information. Given these uncertainties, you should not place undue reliance on these forward-looking statements.
Our forward-looking statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures or
investments we may make or enter into. Except as required by law, we assume no obligation to update or revise these forward-looking statements
for any reason, whether as a result of new information, future events or otherwise.
USE OF PROCEEDS
We may issue and sell shares of our common stock having aggregate sale
proceeds of up to $100,000,000 from time to time. The amount of proceeds from this offering will depend upon the number of shares of our
common stock sold and the market price at which they are sold. There can be no assurance that we will be able to sell any shares under
or fully utilize the Distribution Agreement with the Distribution Agents as a source of financing. Because there is no minimum offering
amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any,
are not determinable at this time.
We intend to use the proceeds of this offering to fund our operations,
which includes, but is not limited to advancing the Company’s clinical programs, commercial production of the investigational therapeutic
NurOwn® (whether for ALS or other indications), regulatory, pre-marketing and commercialization preparation activities of NurOwn®
for ALS, working capital and general corporate purposes. Our expected use of the net proceeds from this offering is based upon our present
plans and business condition. As of the date of this prospectus, we cannot predict with certainty all of the particular uses for the net
proceeds to be received upon the completion of this offering or the amounts that we will actually spend on the uses set forth above. The
amounts and timing of our actual use of proceeds will vary depending on numerous factors, including the factors described under the heading
“Risk Factors” beginning on page S-5 and under the heading “Risk Factors” in the prospectus accompanying
this prospectus and our other SEC filings. As a result, management will retain broad discretion over the allocation of the net proceeds
from this offering, and investors will be relying on the judgment of our management regarding the application of the net proceeds.
DIVIDEND POLICY
We have never declared or paid cash dividends on our capital stock.
We intend to retain all of our future earnings, if any, to finance the growth and development of our business. We do not intend to pay
cash dividends to our stockholders in the foreseeable future.
DILUTION
If you invest in our common stock in this offering, your ownership
interest will be diluted to the extent of the difference between the public offering price per share of our common stock in this offering
and the as adjusted net tangible book value per share of our common stock immediately after this offering. The net tangible book value
of our common stock as of June 30, 2021, was approximately $30.2 million, or approximately $0.83 per share of common stock based
upon 36,318,561 shares outstanding. Net tangible book value per share is equal to our total tangible assets, less our total liabilities,
divided by the total number of shares of common stock outstanding as of June 30, 2021.
Net tangible book value dilution per share to investors participating
in this offering represents the difference between the amount per share paid by purchasers of shares of common stock in this offering
and the as adjusted net tangible book value per share of our common stock immediately after this offering. After giving effect to the
sale of 25,252,525 shares of common stock in this offering at an assumed public offering price of $3.96 per share, the last reported sale
price of our common stock on The Nasdaq Capital Market on August 6, 2021, and after deducting sales commissions and estimated offering
expenses payable by us, our as adjusted net tangible book value as of June 30, 2021, would have been approximately $127.1 million,
or approximately $2.06 per share of common stock. This represents an immediate increase in as adjusted net tangible book value of $1.23
per share to our existing stockholders and an immediate dilution in net tangible book value of $1.77 per share to investors participating
in this offering at the assumed public offering price.
Dilution per share to new investors is determined by subtracting as
adjusted net tangible book value per share after this offering from the assumed public offering price per share paid by new investors.
The following table illustrates this per share dilution to new investors:
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Assumed public offering price per share
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|
|
|
|
|
$
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3.96
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|
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Historical net tangible book value per share as of June 30, 2021
|
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$
|
0.83
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|
|
|
|
|
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Increase in net tangible book value per share attributable to the offering
|
|
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1.23
|
|
|
|
|
|
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As adjusted net tangible book value per share after giving effect to this offering
|
|
|
|
|
|
$
|
2.06
|
|
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Dilution in net tangible book value per share to investors participating in this offering
|
|
|
|
|
|
$
|
1.77
|
|
The table above assumes for illustrative purposes that an aggregate
of $100.0 million in shares of our common stock are sold at a price of $3.96 per share, the last reported sale price of our common
stock on The Nasdaq Capital Market on August 6, 2021. The shares sold in this offering, if any, will be sold from time to time at
various prices. An increase of $1.00 per share in the price at which the shares are sold from the assumed offering price of $4.96 per
share shown in the table above, assuming all of our common stock in the aggregate amount of $100.0 million is sold at that price, would
result in an adjusted net tangible book value per share after the offering to $2.25 per share and would increase the dilution in net tangible
book value per share to investors participating in this offering to $2.56 per share, after deducting sales commissions and estimated offering
expenses payable by us. A decrease of $1.00 per share in the price at which the shares are sold from the assumed offering price of $2.96
per share shown in the table above, assuming all of our common stock in the aggregate amount of $100.0 million is sold at that price,
would result in an adjusted net tangible book value per share after the offering to $1.81 per share and would decrease the dilution in
net tangible book value per share to investors participating in this offering to $1.06 per share, after deducting sales commissions and
estimated offering expenses payable by us.
The information discussed above is illustrative only and will adjust
based on the actual price at which our shares of common stock are sold.
The table and discussion above are based on 36,318,561 shares of common
stock outstanding as of June 30, 2021, and excludes:
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|
·
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1,391,485 shares of common stock issuable upon the exercise of share options outstanding as of June 30, 2021, at a weighted average
exercise price of $4.6349 per share;
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|
|
·
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3,366,666 shares of common stock issuable upon the exercise of warrants outstanding as of June 30, 2021, at a weighted average
exercise price of $5.7371 per share; and
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|
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·
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3,393,413 shares of common stock reserved for future issuance under our equity incentive plans as of June 30, 2021.
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To the extent that any options are exercised, new options are issued
under our equity incentive plans or we otherwise issue additional shares of common stock in the future (including shares issued in connection
with acquisitions), there will be further dilution to new investors.
In addition, we may choose to raise additional capital due to market
conditions or strategic considerations, even if we believe we have sufficient funds for our current or future operating plans. To the
extent that additional capital is raised through the sale of equity or convertible debt securities, the issuance of these securities could
result in further dilution to our stockholders.
MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS
FOR NON-U.S. HOLDERS
The following discussion is a summary of certain material U.S. federal
income tax considerations applicable to non-U.S. holders (as defined below) with respect to their ownership and disposition of shares
of our common stock issued pursuant to this offering. For purposes of this discussion, a non-U.S. holder means a beneficial owner of our
common stock that is for U.S. federal income tax purposes:
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|
•
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a
non-resident alien individual;
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•
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a
foreign corporation or any other foreign organization taxable as a corporation for U.S. federal income tax purposes; or
|
|
|
•
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a
foreign estate or trust, the income of which is not subject to U.S. federal income tax on a net income basis.
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This discussion does not address the tax treatment of partnerships
or other entities or arrangements that are treated as pass-through entities for U.S. federal income tax purposes or persons that hold
their common stock through partnerships or other pass-through entities. A partner in a partnership or an investor in any other pass-through
entity that will hold our common stock should consult his, her or its tax advisor regarding the tax consequences of acquiring, holding
and disposing of our common stock through a partnership or other pass-through entity, as applicable.
This discussion is based on current provisions of the U.S. Internal
Revenue Code of 1986, as amended, or the Code, existing and proposed U.S. Treasury Regulations promulgated thereunder, current administrative
rulings and judicial decisions, all as in effect as of the date of this prospectus and all of which are subject to change or to differing
interpretation, possibly with retroactive effect. Any such change or differing interpretation could alter the tax consequences to non-U.S.
holders described in this prospectus. There can be no assurance that the Internal Revenue Service, or the IRS, will not challenge one
or more of the tax consequences described herein. We assume in this discussion that each non-U.S. holder holds shares of our common stock
as a capital asset within the meaning of Section 1221 of the Code, which is generally property held for investment.
This discussion does not address all aspects of U.S. federal income
taxation that may be relevant to a particular non-U.S. holder in light of that non-U.S. holder’s individual circumstances nor does
it address any U.S. state, local or non-U.S. tax considerations, the alternative minimum tax, the rules regarding qualified small
business stock within the meaning of Section 1202 of the Code, the Medicare tax on net investment income, any tax treaties or any
other aspect of any U.S. federal tax other than income taxes (including, for example, estate taxes). This discussion also does not consider
any specific facts or circumstances that may apply to a non-U.S. holder and does not address the special tax rules applicable to
particular non-U.S. holders, such as:
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•
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tax-exempt
or governmental organizations;
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•
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financial
institutions;
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•
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brokers
or dealers in securities;
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•
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regulated
investment companies;
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•
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“controlled
foreign corporations,” “passive foreign investment companies,” and corporations that accumulate earnings to avoid U.S.
federal income tax;
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•
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“qualified
foreign pension funds” as defined in Section 897(l)(2) of the Code and entities all of the interests of which are held
by qualified foreign pension funds;
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•
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partnerships
or other entities or arrangements treated as partnerships for U.S. federal income tax purposes (and partners and investors therein);
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•
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persons
deemed to sell our common stock under the constructive sale provisions of the Code;
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•
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persons
that hold our common stock as part of a straddle, hedge, conversion transaction, synthetic security or other integrated investment;
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•
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persons subject to special tax accounting rules as a
result of any item of gross income with respect to our common stock being taken into account in an applicable financial statement under
Section 451(b) of the Code;
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•
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persons who have elected to mark securities to market;
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•
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persons
who hold or receive our common stock pursuant to the exercise of any employee stock option or otherwise as compensation; and
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This discussion is for general information only and is not tax advice.
Accordingly, all prospective non-U.S. holders of our common stock should consult their tax advisors with respect to the U.S. federal,
state, local and non-U.S. tax consequences of the purchase, ownership and disposition of our common stock, including the consequences
of any proposed changes in appliable laws.
Distributions on Our Common Stock
As described in the “Dividend Policy” section above, we
do not intend to pay any cash dividends on our common stock in the foreseeable future. Distributions, if any, on our common stock generally
will constitute dividends for U.S. federal income tax purposes to the extent paid from our current or accumulated earnings and profits,
as determined under U.S. federal income tax principles. If a distribution exceeds our current and accumulated earnings and profits, the
excess will be treated as a tax-free return of the non-U.S. holder’s investment, up to such holder’s tax basis in the common
stock. Any remaining excess will be treated as capital gain, subject to the tax treatment described below in “—Gain on Sale
or Other Taxable Disposition of Our Common Stock.” Any such distributions will also be subject to the discussions below under the
sections titled “—Backup Withholding and Information Reporting” and “—FATCA.”
Subject to the discussion in the following two paragraphs in this section,
dividends paid to a non-U.S. holder generally will be subject to withholding of U.S. federal income tax at a 30% rate or such reduced
rate specified by an applicable income tax treaty between the United States and such holder’s country of residence. If we are unable
to determine, at a time reasonably close to the date of payment of a distribution on our common stock, what portion, if any, of the distribution
will constitute a dividend, then we may withhold U.S. federal income tax on the basis of assuming that the full amount of the distribution
will be a dividend. If we or another withholding agent apply over-withholding, a non-U.S. holder may be entitled to a refund or credit
of any excess tax withheld by timely filing an appropriate claim with the IRS.
Dividends that are treated as effectively connected with a trade
or business conducted by a non-U.S. holder within the United States and, if an applicable income tax treaty so provides, that are
attributable to a permanent establishment or a fixed base maintained by the non-U.S. holder within the United States, are generally
exempt from the 30% withholding tax if the non-U.S. holder satisfies applicable certification and disclosure requirements. To obtain
this exemption, a non-U.S. holder must generally provide us with a properly executed original IRS Form W- 8ECI properly
certifying such exemption. However, such U.S. effectively connected income, net of specified deductions and credits, is taxed at the
same graduated U.S. federal income tax rates applicable to United States persons (as defined in the Code). Any U.S. effectively
connected income received by a non-U.S. holder that is a corporation may also, under certain circumstances, be subject to an
additional “branch profits tax” at a 30% rate or such reduced rate specified by an applicable income tax treaty between
the United States and such holder’s country of residence.
A non-U.S. holder of our common stock who claims the benefit of an
applicable income tax treaty between the United States and such holder’s country of residence generally will be required to provide
a properly executed IRS Form W-8BEN or W-8BEN-E (or other applicable or successor form) to the applicable withholding agent and satisfy
applicable certification and other requirements. Any documentation provided to an applicable withholding agent may need to be updated
in certain circumstances. The certification requirements described above may require a non-U.S. holder to provide its U.S. taxpayer identification
number. Non-U.S. holders are urged to consult their tax advisors regarding their entitlement to benefits under a relevant income tax treaty.
A non-U.S. holder that is eligible for a reduced rate of U.S. withholding tax under an income tax treaty may obtain a refund or credit
of any excess amounts withheld by timely filing an appropriate claim with the IRS.
Gain on Sale or Other Taxable Disposition of Our Common Stock
Subject to the discussions below under “—Backup Withholding
and Information Reporting” and “—FATCA,” a non-U.S. holder generally will not be subject to any U.S. federal income
or withholding tax on any gain realized upon such holder’s sale or other taxable disposition of shares of our common stock unless:
|
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•
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the
gain is effectively connected with the non-U.S. holder’s conduct of a U.S. trade or business and, if an applicable income tax treaty
so provides, is attributable to a permanent establishment or a fixed base maintained by such non-U.S. holder in the United States, in
which case the non-U.S. holder generally will be taxed on a net income basis at the graduated U.S. federal income tax rates applicable
to United States persons (as defined in the Code) and, if the non-U.S. holder is a foreign corporation, the branch profits tax described
above in “—Distributions on Our Common Stock” also may apply;
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•
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the
non-U.S. holder is a nonresident alien individual who is present in the United States for a period or periods aggregating 183 days or
more in the taxable year of the disposition and certain other conditions are met, in which case the non-U.S. holder will be subject to
a 30% tax (or such lower rate as may be specified by an applicable income tax treaty between the United States and such holder’s
country of residence) on the net gain derived from the disposition, which may be offset by certain U.S. source capital losses of the
non-U.S. holder, if any (even though the individual is not considered a resident of the United States), provided that the non-U.S. holder
has timely filed U.S. federal income tax returns with respect to such losses; or
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•
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we
are, or have been, at any time during the five-year period preceding such sale or other taxable disposition (or the non-U.S. holder’s
holding period, if shorter) a U.S. real property holding corporation (as defined in the Code), unless our common stock is regularly traded
on an established securities market and the non-U.S. holder holds no more than 5% of our outstanding common stock, directly or indirectly,
actually or constructively, during the shorter of the 5-year period ending on the date of the disposition or the period that the non-U.S.
holder held our common stock. If we are or were a U.S. real property holding corporation during the relevant period and the foregoing
5% exception does not apply, the non-U.S. holder generally will be taxed on its net gain derived from the disposition at the graduated
U.S. federal income tax rates applicable to United States persons (as defined in the Code). If we are a U.S. real property holding corporation
and our common stock is not regularly traded on an established securities market, a non-U.S. holder’s proceeds received on the
disposition of shares will also generally be subject to withholding at a rate of 15%. Generally, a corporation is a U.S. real property
holding corporation only if the fair market value of its U.S. real property interests (as defined in the Code) equals or exceeds 50%
of the sum of the fair market value of its worldwide real property interests plus its other assets used or held for use in a trade or
business. Although there can be no assurance, we do not believe that we are, or have been, a U.S. real property holding corporation for
U.S. federal income tax purposes, or that we are likely to become one in the future. No assurance can be provided that our common stock
will be regularly traded on an established securities market for purposes of the rules described above. Non-U.S. holders should
consult their tax advisors with respect to the application of the foregoing rules to their ownership and disposition of our common
stock.
|
Backup Withholding and Information Reporting
We (or the applicable paying agent) must report annually to the IRS
and to each non-U.S. holder the gross amount of the distributions on our common stock paid to such holder and the tax withheld, if any,
with respect to such distributions. Non-U.S. holders may have to comply with specific certification procedures to establish that the holder
is not a “United States person” (as defined in Section 7701(a)(30) of the Code) in order to avoid backup withholding
at the applicable rate with respect to dividends on our common stock. Dividends paid to non-U.S. holders subject to withholding of U.S.
federal income tax, as described above in “—Distributions on Our Common Stock,” generally will be exempt from U.S. backup
withholding if the non-U.S. holders establish an exemption by properly certifying their non-U.S. status on an IRS Form W-8BEN or
W-8BEN-E (or other applicable or successor form).
Information reporting and backup withholding will generally apply to
the proceeds of a disposition of our common stock by a non-U.S. holder effected by or through the U.S. office of any broker, U.S. or foreign,
unless the holder certifies its status as a non-U.S. holder and satisfies certain other requirements, or otherwise establishes an exemption.
Generally, information reporting and backup withholding will not apply to a payment of disposition proceeds to a non-U.S. holder where
the transaction is effected outside the United States through a non-U.S. office of a broker. However, for information reporting purposes,
dispositions effected through a non-U.S. office of a broker with substantial U.S. ownership or operations generally will be treated in
a manner similar to dispositions effected through a U.S. office of a broker. Non-U.S. holders should consult their tax advisors regarding
the application of the information reporting and backup withholding rules to them. Copies of information returns may be made available
to the tax authorities of the country in which the non-U.S. holder resides or is incorporated under the provisions of a specific treaty
or agreement. Any documentation provided to an applicable withholding agent may need to be updated in certain circumstances. Backup withholding
is not an additional tax. Any amounts withheld under the backup withholding rules from a payment to a non-U.S. holder can be refunded
or credited against the non-U.S. holder’s U.S. federal income tax liability, if any, provided that an appropriate claim is filed
with the IRS in a timely manner.
FATCA
The Foreign Account Tax Compliance Act, or FATCA, generally
imposes a U.S. federal withholding tax at a rate of 30% on payments of dividends on, or subject to the discussion of certain
proposed U.S. Treasury regulations below, gross proceeds from the sale or other disposition of, our common stock paid to a foreign
entity unless (i) if the foreign entity is a “foreign financial institution,” such foreign entity undertakes
certain due diligence, reporting, withholding, and certification obligations, (ii) if the foreign entity is not a
“foreign financial institution,” such foreign entity either certifies it does not have any substantial U.S. owners or
furnishes identifying information regarding each substantial U.S. owner and such entity meets certain other specified requirements,
or (iii) the foreign entity is otherwise exempt under FATCA. However, proposed regulations, if finalized in their present form,
would eliminate the federal withholding tax of 30% applicable to the gross proceeds of a sale or other disposition of our common
stock. Taxpayers (including withholding agents) are permitted to rely on the proposed regulations until final regulations are
issued. Under certain circumstances, a non-U.S. holder may be eligible for refunds or credits of this withholding tax. An
intergovernmental agreement between the United States and an applicable foreign country may modify the requirements described in
this paragraph. Non-U.S. holders should consult their tax advisors regarding the possible implications of this legislation on their
investment in our common stock and the entities through which they hold our common stock, including, without limitation, the process
and deadlines for meeting the applicable requirements to prevent the imposition of the 30% withholding tax under FATCA.
DESCRIPTION OF CAPITAL STOCK
The
following description of our capital stock is intended as a summary only. This description is based upon, and is qualified by reference
to, our amended and restated certificate of incorporation, or certificate of incorporation, our amended and restated bylaws, or bylaws,
and applicable provisions of the Delaware General Corporation Law. This summary is not intended to be a complete description of our capital
stock. You should read our certificate of incorporation and bylaws for the provisions that are important to you.
General
Our authorized capital stock consists of 100,000,000 shares of common
stock, par value $0.00005 per share.
As of the date of this prospectus, 36,318,561 shares of our common
stock were outstanding and held by 32 stockholders of record.
Common Stock
The holders of our common stock are entitled to one vote for each share
held on all matters submitted to a vote of the stockholders. The holders of our common stock do not have any cumulative voting rights.
Holders of our common stock are entitled to receive ratably any dividends declared by our board of directors out of funds legally available
for that purpose. Our common stock has no preemptive rights, conversion rights or other subscription rights or redemption or sinking fund
provisions.
In the event of our liquidation, dissolution or winding up, holders
of our common stock will be entitled to share ratably in all assets remaining after payment of all debts and other liabilities. All outstanding
shares of common stock are fully paid and nonassessable.
Exchange Listing
Our common stock is listed on The Nasdaq Capital Market under the trading
symbol “BCLI.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American Stock
Transfer & Trust Co LLC. The transfer agent and registrar’s address is 6201 15th Avenue, Brooklyn, New York 11219, and
its telephone number is (877) 248-6417.
Anti-Takeover Effects of our Certificate of Incorporation and Bylaws
and Delaware Law
Our certificate of incorporation and bylaws include a number of provisions
that may have the effect of delaying, deferring or preventing another party from acquiring control of us and encouraging persons considering
unsolicited tender offers or other unilateral takeover proposals to negotiate with our board of directors rather than pursue non-negotiated
takeover attempts. These provisions include the items described below.
Board Composition and Filling Vacancies
Our bylaws provide that directors may be removed with or without cause
at an annual meeting or at a special meeting called for that purpose, by a majority vote of the shares then entitled to vote at an election
of directors. Furthermore, any vacancy on our board of directors, however occurring, including a vacancy resulting from an increase in
the size of our board, may only be filled by the affirmative vote of a majority of our directors then in office even if less than a quorum.
The limitations on removal of directors, together with the treatment of vacancies, has the effect of making it more difficult for stockholders
to change the composition of our board of directors.
Meetings of Stockholders
Our certificate of incorporation provide that the President, the Chairman
of the Board, if any, or any two members of the board of directors, or by the Secretary or any other officer upon the written request
of one or more stockholders holding of record at least a majority of the outstanding shares of stock of the corporation entitled to vote
at such meeting may call special meetings of stockholders and only those matters set forth in the notice of the special meeting may be
considered or acted upon at a special meeting of stockholders. Our bylaws limit the business that may be conducted at an annual meeting
of stockholders to those matters properly brought before the meeting.
Amendment to Certificate of Incorporation and Bylaws
Any amendment of our certificate of incorporation must first be approved
by a majority of our board of directors and must thereafter be approved by the affirmative vote of the holders of a majority of the outstanding
shares of our common stock. Our bylaws may be amended by the affirmative vote of a majority of the directors present at any regular or
special meeting of the board of directors at which a quorum is present; and may also be amended by the affirmative vote of the holders
of a majority of the shares of our capital stock issued and outstanding and entitled to vote at any regular meeting of stockholders, or
at any special meeting of stockholders provided notice of such alteration, amendment, repeal or adoption of new by-laws shall have been
stated in the notice of such special meeting.
Section 203 of the Delaware General Corporation Law
We are subject to the provisions of Section 203 of the Delaware
General Corporation Law. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a “business
combination” with an “interested stockholder” for a three-year period following the time that this stockholder becomes
an interested stockholder, unless the business combination is approved in a prescribed manner. Under Section 203, a business combination
between a corporation and an interested stockholder is prohibited unless it satisfies one of the following conditions:
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before the stockholder became interested, our board of directors approved either the business combination or the transaction which
resulted in the stockholder becoming an interested stockholder;
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•
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upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of
determining the voting
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•
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stock outstanding, shares owned by persons who are directors and also officers, and employee stock plans, in some instances, but not
the outstanding voting stock owned by the interested stockholder; or
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•
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at or after the time the stockholder became interested, the business combination was approved by our board of directors and authorized
at an annual or special meeting of the stockholders by the affirmative vote of at least two-thirds of the outstanding voting stock which
is not owned by the interested stockholder.
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Section 203 defines a business combination to include:
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•
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any merger or consolidation involving the corporation and the interested stockholder;
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•
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any sale, transfer, lease, pledge or other disposition involving the interested stockholder of 10% or more of the assets of the corporation;
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•
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subject to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation
to the interested stockholder;
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subject to exceptions, any transaction involving the corporation that has the effect of increasing the proportionate share of the
stock of any class or series of the corporation beneficially owned by the interested stockholder; and
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the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided
by or through the corporation.
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In general, Section 203 defines an interested stockholder as any
entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated
with or controlling or controlled by the entity or person.
PLAN OF DISTRIBUTION
We have entered into the Distribution Agreement
with the Distribution Agents under which we may issue and sell from time to time up to $100,000,000 of our common stock through SVB Leerink
LLC and Raymond James & Associates, Inc. as our distribution agents. Sales of our common stock, if any, will be made at
market prices by any method that is deemed to be an “at the market offering” as defined in Rule 415(a)(4) under
the Securities Act, including sales made directly on Nasdaq or any other trading market for our common stock. If authorized by us in writing,
the Distribution Agents may purchase shares of our common stock as principal.
The Distribution Agents will offer our common
stock subject to the terms and conditions of the Distribution Agreement on a daily basis or as otherwise agreed upon by us and the Distribution
Agents. We will designate the maximum amount of common stock to be sold through the Distribution Agents on a daily basis or otherwise
determine such maximum amount together with the Distribution Agents. Subject to the terms and conditions of the Distribution Agreement,
the Distribution Agents will use their commercially reasonable efforts to sell on our behalf all of the shares of common stock requested
to be sold by us. We may instruct the Distribution Agents not to sell common stock if the sales cannot be effected at or above the price
designated by us in any such instruction. The Distribution Agents or we may suspend the offering of our common stock being made through
the Distribution Agents under the Distribution Agreement upon proper notice to the other party. The Distribution Agents and we each have
the right, by giving written notice as specified in the Distribution Agreement, to terminate the Distribution Agreement in each party’s
sole discretion at any time.
The aggregate compensation payable to
the Distribution Agents as distribution agents is equal to 3% of the gross sales price of the shares sold through them
pursuant to the Distribution Agreement. In addition, we have agreed to reimburse the Distribution Agents for fees and disbursements,
including related to its legal counsel in an amount not to exceed $50,000 as provided in the Distribution Agreement.
The remaining sales proceeds, after deducting
any expenses payable by us and any transaction fees imposed by any governmental, regulatory, or self-regulatory organization in connection
with the sales, will equal our net proceeds for the sale of such common stock.
The Distribution Agents will provide written
confirmation to us no later than the opening of the trading day immediately after each day of trading on Nasdaq in which common stock
is sold through them as distribution agents under the Distribution Agreement. Each confirmation will include the number of shares of common
stock sold through them as distribution agents on that day, the volume weighted average price of the shares sold, and the net proceeds
to us.
We will report at least quarterly the number
of shares of common stock sold through the Distribution Agents under the Distribution Agreement, the gross and net proceeds to us and
the compensation paid by us to the Distribution Agents in connection with the sales of common stock.
Settlement for sales of common stock will
occur, unless the parties agree otherwise or otherwise required by law, on the second business day that is also a trading day following
the date on which any sales were made in return for payment of the net proceeds to us. There is no arrangement for funds to be received
in an escrow, trust or similar arrangement.
In connection with the sales of our common
stock on our behalf, the Distribution Agents may be deemed to be “underwriters” within the meaning of the Securities Act,
and the compensation paid to the Distribution Agents may be deemed to be underwriting commissions or discounts. We have agreed in the
Distribution Agreement to provide indemnification and contribution to the Distribution Agents against certain liabilities, including liabilities
under the Securities Act. As distribution agents, the Distribution Agents will not engage in any transactions that stabilizes our common
stock.
Our common stock is listed on The Nasdaq Capital
Market and trades under the symbol “BCLI.” The transfer agent of our common stock is American Stock Transfer & Trust
Company LLC.
The Distribution Agents and/or their affiliates have provided, and
may in the future provide, various investment banking and other financial services for us for which services they have received and, may
in the future receive, customary fees.
LEGAL MATTERS
Certain legal matters in connection with this offering and the validity
of the securities offered by this prospectus will be passed upon for us by Goodwin Procter LLP, Boston, MA. SVB Leerink LLC and Raymond
James & Associates, Inc. are being represented in connection with this offering by Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C., New York, N.Y.
EXPERTS
The consolidated financial statements of Brainstorm Cell Therapeutics
Inc. as of December 31, 2020 and 2019 and for each of the years in the two-year period ended December 31, 2020 incorporated
in this Prospectus by reference from the Brainstorm Cell Therapeutics Inc. Annual Report on Form 10-K for the year ended December 31, 2020 have been audited by Brightman Almagor Zohar & Co., a Firm in the Deloitte Global Network, an independent registered public
accounting firm, as stated in their report thereon, incorporated herein by reference, and have been incorporated in this Prospectus and
Registration Statement in reliance upon such report and upon the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at www.sec.gov.
Copies of certain information filed by us with the SEC are also available on our website at www.brainstorm-cell.com. Our website
is not a part of this prospectus and is not incorporated by reference in this prospectus.
This prospectus is part of a registration statement we filed with the
SEC. This prospectus omits some information contained in the registration statement in accordance with SEC rules and regulations.
You should review the information and exhibits in the registration statement for further information on us and the securities we are offering.
Statements in this prospectus concerning any document we filed as an exhibit to the registration statement or that we otherwise filed
with the SEC are not intended to be comprehensive and are qualified by reference to these filings. You should review the complete document
to evaluate these statements. You can obtain a copy of the registration statement from the SEC at the address listed above or from the
SEC’s website.
INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference the information and reports
we file with it, which means that we can disclose important information to you by referring you to these documents. The information incorporated
by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede
the information already incorporated by reference. We are incorporating by reference the documents listed below, which we have already
filed with the SEC, and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, except
as to any portion of any future report or document that is not deemed filed under such provision, including all filings made between the
date of this prospectus and the effectiveness of the registration statement and following the effectiveness of the registration statement
until the termination or completion of this offering:
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Quarterly Reports on Form 10-Q for the quarters ended March 31, 2021 and June 30, 2021, which were filed with the SEC
on April 26, 2021 and August 5, 2021, respectively;
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We incorporate by reference any future filings made with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act between the date of this prospectus and the termination of the offering.
Notwithstanding the foregoing, unless specifically stated to the contrary,
information that we furnish (and that is not deemed “filed” with the SEC) under Items 2.02 and 7.01 of any Current Report
on Form 8-K, including the related exhibits under Item 9.01, is not incorporated by reference into this prospectus or the registration
statement of which this prospectus is a part.
Any statement contained in a document that is incorporated by reference
will be modified or superseded for all purposes to the extent that a statement contained in this prospectus, or in any other document
that is subsequently filed with the SEC and incorporated by reference into this prospectus, modifies or is contrary to that previous statement.
Any statement so modified or superseded will not be deemed a part of this prospectus, except as so modified or superseded. Since information
that we later file with the SEC will update and supersede previously incorporated information, you should look at all of the SEC filings
that we incorporate by reference to determine if any of the statements in this prospectus or in any documents previously incorporated
by reference have been modified or superseded.
Upon request, we will provide, without charge, to each person, including
any beneficial owner, to whom a copy of this prospectus is delivered, a copy of the documents incorporated by reference into this prospectus
but not delivered therewith. You may request a copy of these filings, and any exhibits we have specifically incorporated by reference
as an exhibit in this prospectus, at no cost by writing or telephoning us at the following address: Brainstorm Cell Therapeutics Inc.
1325 Avenue of Americas, 28th Floor, New York, NY 10019, Attention: Chief Executive Officer; telephone: (201) 488-0460.
You may also access these documents, free of charge on the SEC’s
website at www.sec.gov or on our website at www.brainstorm-cell.com. Information contained on our website is not incorporated
by reference into this prospectus and you should not consider any information on, or that can be accessed from, our website as part of
this prospectus.
This prospectus is part of a registration statement we filed with the
SEC. We have incorporated exhibits into this registration statement. You should read the exhibits carefully for provisions that may be
important to you. You should rely only on the information incorporated by reference or provided in this prospectus. We have not authorized
anyone to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted.
You should not assume that the information in this prospectus or in the documents incorporated by reference is accurate as of any date
other than the date on the front of this prospectus or those documents.
BRAINSTORM CELL THERAPEUTICS INC.
Up to $100,000,000
Common Stock
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SVB Leerink
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Raymond James
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, 2021
PROSPECTUS
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Set forth below is an estimate (except in the case of the SEC registration
fee) of the amount of fees and expenses to be incurred in connection with the issuance and distribution of the offered securities, other
than underwriting discounts and commissions.
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SEC registration fee
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$
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21,820
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Accounting fees and expenses
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*
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Legal fees and expenses
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*
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Transfer agent’s, trustee’s and depositary’s fees and expenses
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*
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Printing fees and expenses
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*
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Miscellaneous
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*
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Total
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$
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*
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*
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These fees and expenses are calculated based on the securities offered and the number of issuances and distributions of the offered
securities and, accordingly, cannot be estimated at this time.
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Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law, or the DGCL,
authorizes a corporation to indemnify its directors and officers against liabilities arising out of actions, suits and proceedings to
which they are made or threatened to be made a party by reason of the fact that they have served or are currently serving as a director
or officer to a corporation. The indemnity may cover expenses (including attorneys’ fees) judgments, fines and amounts paid in settlement
actually and reasonably incurred by the director or officer in connection with any such action, suit or proceeding. Section 145 permits
corporations to pay expenses (including attorneys’ fees) incurred by directors and officers in advance of the final disposition
of such action, suit or proceeding. In addition, Section 145 provides that a corporation has the power to purchase and maintain insurance
on behalf of its directors and officers against any liability asserted against them and incurred by them in their capacity as a director
or officer, or arising out of their status as such, whether or not the corporation would have the power to indemnify the director or officer
against such liability under Section 145.
We have adopted provisions in our certificate of incorporation and
bylaws that limit or eliminate the personal liability of our directors to the fullest extent permitted by the DGCL, as it now exists or
may in the future be amended. Consequently, a director are not personally liable to us or our stockholders for monetary damages or breach
of fiduciary duty as a director, except for liability for:
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any breach of the director’s duty of loyalty to us or our stockholders;
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any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law
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any unlawful payments related to dividends or unlawful stock purchases, redemptions or other distributions; or
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any transaction from which the director derived an improper personal benefit.
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These limitations of liability do not alter director liability under
the federal securities laws and do not affect the availability of equitable remedies such as an injunction or rescission.
In addition, our bylaws provide that:
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we will indemnify our directors, officers and, in the discretion of our board of directors, certain employees to the fullest extent
permitted by the DGCL, as it now exists or may in the future be amended; and
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we will advance reasonable expenses, including attorneys’ fees, to our directors and, in the discretion of our board of directors,
to our officers and certain employees, in connection with legal proceedings relating to their service for or on behalf of us, subject
to limited exceptions.
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We have entered into indemnification agreements with each of our directors
and executive officers. These agreements provide that we will indemnify each of our directors, certain of our executive officers and,
at times, their affiliates to the fullest extent permitted by Delaware law. We will advance expenses, including attorneys’ fees
(but excluding judgments, fines and settlement amounts), to each indemnified director or executive officer in connection with any proceeding
in which indemnification is available and we will indemnify our directors and officers for any action or proceeding arising out of that
person’s services as a director or officer brought on behalf of us or in furtherance of our rights. Additionally, certain of our
directors or officers may have certain rights to indemnification, advancement of expenses or insurance provided by their affiliates or
other third parties, which indemnification relates to and might apply to the same proceedings arising out of such director’s or
officer’s services as a director referenced herein. Nonetheless, we have agreed in the indemnification agreements that our obligations
to those same directors or officers are primary and any obligation of such affiliates or other third parties to advance expenses or to
provide indemnification for the expenses or liabilities incurred by those directors are secondary.
We also maintain general liability insurance which covers certain liabilities
of our directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers, including
liabilities under the Securities Act.
Item 16. Exhibits.
The exhibits to this Registration Statement are listed in the exhibit
index, which appears elsewhere herein and is incorporated herein by reference.
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*
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To be filed by amendment or by a Current Report on Form 8-K.
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**
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To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
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(1)
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Incorporated by reference to the Registrant’s Definitive Schedule 14A (File No. 333-61610) filed on November 20, 2006.
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(2)
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Incorporated by reference to the Registrant’s Definitive Schedule 14A (File No. 000-54365) filed on September 16,
2014.
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(3)
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Incorporated by reference to the Registrant’s Current Report on Form 8-K (File No. 000-366641) filed on September 4,
2015.
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(4)
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Incorporated by reference to the Registrant’s Current Report on Form 8-K (File No. 000-61610) filed on March 27,
2007.
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Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(i)
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to include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective registration statement; and
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(iii)
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to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration Statement; provided, however, that paragraphs (i), (ii) and (iii) of
this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Securities and Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated by reference in this Registration
Statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this Registration Statement.
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(2)
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That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
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(4)
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That, for the purpose of determining liability under the Securities Act to any purchaser:
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(i)
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each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included in the registration statement; and
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(ii)
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each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in
reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement
or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference in the
registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part
of the registration statement or made in any such document immediately prior to such effective date.
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(5)
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That, for the purpose of determining liability of a Registrant under the Securities Act to any purchaser in the initial distribution
of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
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(i)
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any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
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(ii)
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any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to
by the undersigned Registrant;
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(iii)
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the portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant
or its securities provided by or on behalf of the undersigned Registrant; and
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(iv)
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any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
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(6)
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That, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant
to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
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(7)
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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(8)
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To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act of 1939 in accordance with the rules and regulations prescribed by the Securities and Exchange Commission
under Section 305(b)(2) of the Trust Indenture Act of 1939.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and
has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New
York, State of New York, on this 9th day of August, 2021.
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BRAINSTORM CELL
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THERAPEUTICS INC.
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By:
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/s/ Chaim Lebovits
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Chief Executive Officer
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(Principal Executive Officer)
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SIGNATURES
AND POWER OF ATTORNEY
We, the undersigned officers and directors of Brainstorm Cell Therapeutics
Inc. hereby severally constitute and appoint Chaim Lebovits, our true and lawful attorney with full power to sign for us and in our names
in the capacities indicated below the Registration Statement on Form S-3 filed herewith and any and all amendments (including post-effective
amendments) to said Registration Statement, and any registration statement filed pursuant to Rule 462 under the Securities Act of
1933, as amended, in connection with said Registration Statement, and to file or cause to be filed the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange Commission, and generally to do all such things in our name
and on our behalf in our capacities as officers and directors to enable Brainstorm Cell Therapeutics Inc. to comply with the provisions
of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming
said attorney, or his substitute or substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title(s)
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Date
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/s/ Chaim Lebovits
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Chief Executive Officer (Principal Executive Officer)
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August 9, 2021
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Chaim Lebovits
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/s/ Preetam Shah
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EVP, Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer)
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August 9, 2021
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Preetam Shah
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/s/ Irit Arbel
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Director
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August 9, 2021
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Irit Arbel
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/s/ June S. Almenoff
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Director
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August 9, 2021
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June S. Almenoff
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/s/ Jacob Frenkel
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Director
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August 9, 2021
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Jacob Frenkel
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/s/ Anthony Polverino
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Director
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August 9, 2021
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Anthony Polverino
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/s/ Malcolm Taub
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Director
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August 9, 2021
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Malcolm Taub
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/s/ Uri Yablonka
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Director
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August 9, 2021
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Uri Yablonka
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/s/ Sankesh Abbhi
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Director
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August 9, 2021
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Sankesh Abbhi
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Exhibit 1.2
DISTRIBUTION AGREEMENT
August 9, 2021
SVB Leerink LLC
1301 Avenue of the Americas, 12th Floor
New York, New York 10019
Raymond James & Associates, Inc.
277 Park Avenue, Suite 410
New York, New York 10172
Ladies and Gentlemen:
Brainstorm Cell Therapeutics
Inc., a Delaware corporation (the “Company”), confirms its agreement with SVB Leerink LLC (“SVB Leerink”)
and Raymond James & Associates, Inc. (“Raymond James”, each of SVB Leerink and Raymond James, an “Agent”
and together, the “Agents”), as agents and/or principals under any Terms Agreement (as defined in Section 1(a) below),
with respect to the issuance and sale from time to time by the Company during the Term (as defined below), in the manner and subject to
the terms and conditions set forth in this Distribution Agreement (this “Agreement”), through the Agents, common stock,
$0.00005 par value per share (the “Common Stock”), of the Company having an aggregate Gross Sales Price (as defined
in Section 2(b) below) of up to $100,000,000 (the “Maximum Amount”), subject to the limitations set forth
in Section 2(h) hereof, on the terms set forth in Section 1 of this Agreement. Such shares are hereinafter collectively
referred to as the “Shares” and are described in the Prospectus referred to below.
The Company will file with
the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3, including a base
prospectus, for the registration of the Shares and other securities of the Company under the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder (collectively, the “Act”); and such registration
statement shall set forth the terms of any offering of Shares, sale and plan of distribution of the Shares and contain additional information
concerning the Company and its business. Except where the context otherwise requires, “Registration Statement,” as
used herein, means the registration statement, as amended at the time of such registration statement’s effectiveness for purposes
of Section 11 of the Act, as such section applies to the Agents, including (1) all documents filed as a part thereof or incorporated
or deemed to be incorporated by reference therein, (2) any information contained or incorporated by reference in a prospectus filed
with the Commission pursuant to Rule 424(b) under the Act, to the extent such information is deemed, pursuant to Rule 430B
or Rule 430C under the Act, to be part of the registration statement at the effective time, and (3) any registration statement
filed to register the offer and sale of Shares pursuant to Rule 462(b) under the Act.
Except where the context otherwise
requires, as used herein: “Base Prospectus” means the prospectus filed as part of the Registration Statement, including
the documents incorporated by reference therein as of the date of such prospectus; “Prospectus Supplement” means the
prospectus supplement relating to the Shares, filed by the Company with the Commission pursuant to Rule 424(b) under the Act
on or before the second business day after the date hereof (or such earlier time as may be required under the Act), in the form furnished
by the Company to the Agents in connection with any offering of Shares; “Prospectus” means the Prospectus Supplement
(and any additional prospectus supplement prepared in accordance with the provision of Section 4(c) of this Agreement and filed
in accordance with the provisions of Rule 424(b)) together with the Base Prospectus attached to or used with the Prospectus Supplement;
“Permitted Free Writing Prospectus” means the documents listed on Exhibit C attached hereto and any other
“Issuer Free Writing Prospectus” (as defined in Rule 433 of the Act) that relates to the Shares, and which the
Company and the Agents reasonably agree from time to time is a Permitted Free Writing Prospectus. Any reference herein to the Registration
Statement, the Base Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall, unless otherwise
stated, be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference,
therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed
as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement”
with respect to the Registration Statement, the Base Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing
Prospectus shall, unless stated otherwise, be deemed to refer to and include the filing of any document under the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”) on or after
the initial effective date of the Registration Statement, or the date of the Base Prospectus, the Prospectus Supplement, the Prospectus
or such Permitted Free Writing Prospectus, as the case may be, and deemed to be incorporated therein by reference. References in this
Agreement to financial statements or other information that is “contained,” “included,” “described,”
“set forth” or “provided” in the Registration Statement, the Base Prospectus, the Prospectus Supplement, the Prospectus
or any Permitted Free Writing Prospectus and any similar references shall, unless stated otherwise, include any information incorporated
or deemed to be incorporated by reference therein.
The Company and the Agents agree as follows:
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a.
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Upon the basis of the representations, warranties
and agreements and subject to the terms and conditions set forth herein and provided the Company provides the Agents with all due diligence
materials and information reasonably requested by the Agents and necessary for the Agents to satisfy its due diligence obligations, on
any Exchange Business Day (as defined below) selected by the Company, the Company and an Agent shall enter into an agreement in accordance
with Section 2 hereof regarding the number of Shares to be placed by such Agent (the “Designated Agent”), as agent,
and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency
Transaction”). The Company may also offer to sell the Shares directly to an Agent, as principal, in which event such parties
shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A
hereto, relating to such sale in accordance with Section 2 of this Agreement (each such transaction being referred to as a “Principal
Transaction”). As used herein, (i) the “Term” shall be the period commencing on the date hereof and
ending on the earlier of (x) the date on which the aggregate Gross Sales Price (as defined in Section 2(b) below) of Shares
issued and sold pursuant to this Agreement and any Terms Agreements is equal to the Maximum Amount and (y) any termination of this
Agreement pursuant to Section 8, (ii) an “Exchange Business Day” means any day during the Term that is a
trading day for the Exchange (as defined below) other than a day on which trading on the Exchange is scheduled to close prior to its regular
weekday closing time, and (iii) “Exchange” means the Nasdaq Capital Market (“Nasdaq”).
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b.
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Subject to the terms and conditions set forth below, the Company appoints the Agents as agents in connection
with the offer and sale of Shares in any Agency Transactions entered into hereunder. The Agents will use its commercially reasonable efforts,
consistent with its normal trading and sales practices, to sell such Shares in accordance with the terms and subject to the conditions
hereof and of the applicable Transaction Acceptance (as defined in Section 2(a) below). Neither the Company nor the Agents shall
have any obligation to enter into an Agency Transaction. The Company shall be obligated to issue and sell through the Agents, and the
Agents shall be obligated to use its commercially reasonable efforts, consistent with its normal trading and sales practices and as provided
herein and in the applicable Transaction Acceptance, to place Shares only if and when the Company makes a Transaction Proposal (as defined
in Section 2(a) below) to the Designated Agent related to such an Agency Transaction and a Transaction Acceptance related to
such Agency Transaction has been delivered to the Company by the Designated Agent as provided in Section 2 below.
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c.
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The Agents, as agents in any Agency Transaction,
hereby covenant and agree not to make any sales of the Shares on behalf of the Company pursuant to this Agreement other than (i) by
means of ordinary brokers’ transactions between members of the Exchange that qualify for delivery of a Prospectus in accordance
with Rule 153 under the Act and meet the definition of an “at-the-market offering” under Rule 415(a)(4) under
the Act (such transactions are hereinafter referred to as “At-the-Market Offerings”), and (ii) such other
sales of the Shares on behalf of the Company in their capacity as agents of the Company as shall be agreed by the Company and the Agents
in writing.
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d.
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If Shares are to be sold in an Agency Transaction in an At-the-Market Offering, the Designated Agent will
confirm in writing to the Company the number of Shares sold on any Exchange Business Day and the related Gross Sales Price and Net Sales
Price (as each of such terms is defined in Section 2(b) below) no later than the opening of trading on the immediately following
Exchange Business Day.
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e.
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If the Company shall default on its obligation to deliver Shares to an Agent pursuant to the terms of
any Agency Transaction or Terms Agreement, as applicable, other than as the result of bad faith or willful misconduct of the Agent, the
Company shall (i) indemnify and hold harmless the Agent and its successors and assigns from and against any and all losses, claims,
damages, liabilities and expenses arising from or as a result of such default by the Company, and (ii) notwithstanding any such default,
pay to the Agent the commission to which it would otherwise be entitled in connection with such sale in accordance with Section 2(b) below.
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f.
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The Company acknowledges and agrees that (i) there can be no assurance that the Agents will be successful
in selling the Shares, (ii) the Agents shall not incur any liability or obligation to the Company or any other person or entity if
they do not sell Shares for any reason other than a failure by the Agents to use their commercially reasonable efforts consistent with
their normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement,
and (iii) the Agents shall not be under any obligation to purchase Shares on a principal basis pursuant to this Agreement, except
as may otherwise be specifically agreed by the Agents and the Company in a Terms Agreement.
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2.
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Transaction Acceptances and Terms Agreements.
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a.
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The Company may, from time to time during the
Term, propose to the Designated Agent that they enter into an Agency Transaction to be executed on a specified Exchange Business Day or
over a specified period of Exchange Business Days, which proposal shall be made to the Designated Agent by telephone or by email and shall
set forth the information specified below (each, a “Transaction Proposal”). If the Designated Agent agrees to
the terms of such proposed Agency Transaction or if the Company and the Designated Agent mutually agree to modified terms for such proposed
Agency Transaction, then the Designated Agent shall promptly deliver to the Company by email a notice (each, a “Transaction Acceptance”)
confirming the terms of such proposed Agency Transaction as set forth in such Transaction Proposal or setting forth the modified terms
for such proposed Agency Transaction as agreed by the Company and the Designated Agent, as the case may be, whereupon such Agency Transaction
shall become a binding agreement between the Company and the Designated Agent. Each Transaction Proposal shall specify:
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(i)
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the Exchange Business Day(s) on which the
Shares subject to such Agency Transaction are intended to be sold (each, a “Purchase Date”);
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(ii)
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the maximum number of Shares to be sold by the
Designated Agent (the “Specified Number of Shares”) on, or over the course of, such Purchase Date(s), or as
otherwise agreed between the Company and such Designated Agent and documented in the relevant Transaction Acceptance;
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(iii)
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the lowest price, if any, at which the Company
is willing to sell Shares on each such Purchase Date or a formula pursuant to which such lowest price shall be determined (each, a “Floor
Price”); and
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(iv)
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the Designated Agent’s discount or commission, in accordance with Section 2(b) below.
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In the event that more than one Transaction
Acceptance with respect to any Purchase Date(s) is delivered by the Designated Agent to the Company, the latest Transaction Acceptance
shall govern any sales of Shares for the relevant Purchase Date(s), except to the extent of any action occurring pursuant to a prior Transaction
Acceptance and prior to the delivery to the Company of the latest Transaction Acceptance. The Company or the Designated Agent may, upon
notice to the other such party by telephone (confirmed promptly by e-mail), suspend or terminate any offering of Shares pursuant to Agency
Transactions for any reason; provided, however, that such suspension or termination shall not affect or impair the parties’
respective obligations with respect to the Shares sold hereunder prior to the giving of such notice or their respective obligations under
any Terms Agreement. Notwithstanding the foregoing, if the terms of any Agency Transaction contemplate that Shares shall be sold on more
than one Purchase Date, then the Company and the Designated Agent shall mutually agree to such additional terms and conditions as they
deem reasonably necessary in respect of such multiple Purchase Dates, and such additional terms and conditions shall be set forth in or
confirmed by, as the case may be, the relevant Transaction Acceptance and be binding to the same extent as any other terms contained therein.
During the term of any such suspension, the Company shall not be obligated to deliver (or cause to be delivered) any of the documents
referred to in Sections 6(b) through 6(d) hereof, be deemed to affirm any of the representations or warranties in this Agreement
pursuant to Section 3 or 6(a) hereof, or be obligated to conduct any due diligence session referred to in Section 6(f) hereof
until the termination of the suspension and the recommencement of any offering of Shares pursuant to this Agreement.
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b.
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The Purchase Date(s) in respect of the Shares
deliverable pursuant to any Transaction Acceptance shall be set forth in or confirmed by, as the case may be, the applicable Transaction
Acceptance. Except as otherwise agreed between the Company and the Agents, the Agents’ commission for any Shares sold through the
Agents pursuant to this Agreement shall be a percentage equal to 3.0% of the actual sales price of such Shares (the “Gross
Sales Price”), which commission shall be as set forth in and confirmed by, as the case may be, the applicable Transaction Acceptance;
provided, however, that such commission shall not apply when an Agent acts as principal in a Principal Transaction, in which case such
commission or a discount shall be set forth in the applicable Terms Agreement. In addition, in the event the Company engages the Designated
Agent for a sale of Shares in an Agency Transaction that would constitute a “distribution” within the meaning of Rule 100
of Regulation M under the Exchange Act, such Agent’s commission for any such transaction shall be 3.0% for any Shares sold. The
Gross Sales Price less an Agent’s commission and after deduction for any transaction fees, transaction taxes or similar taxes or
fees imposed by any governmental, regulatory or self-regulatory organization in respect of the sale of the applicable Shares is referred
to herein at the “Net Sales Price.”
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c.
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Payment of the Net Sales Price for Shares sold
by the Company on any Purchase Date pursuant to a Transaction Acceptance shall be made to the Company by wire transfer of immediately
available funds to the account of the Company (which the Company shall provide to the Designated Agent at least one Exchange Business
Day prior to the applicable Agency Settlement Date (as defined below)) against delivery of such Shares to the Designated Agent’s
account, or an account of the Designated Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at
Custodian System (“DWAC”) or by such other means of delivery as may be agreed to by the Company and the Designated
Agent. Such payment and delivery shall be made at or about 10:00 a.m. (New York City time) on the second Exchange Business Day following
each Purchase Date, unless another date shall be agreed upon by the Company and the Designated Agent (each, an “Agency Settlement
Date”).
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d.
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If, as provided in the related Transaction Proposal, a Floor Price has been set by the Company with respect
to a Purchase Date and the Designated Agent thereafter determines and notifies the Company that the Gross Sales Price for such Agency
Transaction would not be at least equal to such Floor Price, then the Company shall not be obligated to issue and sell through the Designated
Agent, and the Designated Agent shall not be obligated to place, the Shares proposed to be sold pursuant to such Agency Transaction on
such Purchase Date, unless the Company and the Designated Agent otherwise agree in writing.
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e.
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If either the Company or an Agent has reason
to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied
with respect to the Shares, it shall promptly notify the other party, and sales of the Shares under this Agreement, any Transaction Acceptance
or any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the reasonable judgment of each
party. On or prior to the delivery of a prospectus that is required (whether physically or through compliance with Rule 172 under
the Act or any similar rule) in connection with any offering of Shares or sale of the Shares, the Company and the Agents shall calculate
the average daily trading volume (as defined under “ADTV” by Rule 100 of Regulation M under the Exchange
Act) of the Common Stock based on market data provided by Bloomberg L.P. or such other sources as agreed upon by the Company and the Agents.
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f.
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If the Company wishes to issue and sell the Shares
pursuant to this Agreement but other than as set forth in Section 2(a) of this Agreement to an Agent as principal in a Principal
Transaction, it will notify such Agent of the proposed terms of the Principal Transaction. If an Agent, acting as principal, wishes to
accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company,
wishes to accept amended terms, the Company and the Agent shall enter into a Terms Agreement setting forth the terms of such Principal
Transaction. The terms set forth in a Terms Agreement shall not be binding on the Company or the Agent unless and until the Company and
the Agent have each executed and delivered such Terms Agreement accepting all of the terms of such Terms Agreement. Each sale of the Shares
to an Agent in a Principal Transaction shall be made in accordance with the terms of this Agreement and a Terms Agreement, which shall
provide for the sale of such Shares to, and the purchase thereof by, the Agent, as principal. A Terms Agreement may also specify certain
provisions relating to the reoffering of such Shares by the Agent. The commitment of the Agents to purchase the Shares pursuant to any
Terms Agreement shall be deemed to have been made on the basis of the representations, warranties and agreements of the Company contained,
and shall be subject to the terms and conditions set forth, in this Agreement and such Terms Agreement. Any such Terms Agreement shall
specify the number of the Shares to be purchased by the Agent pursuant thereto, the price to be paid to the Company for such Shares, any
provisions relating to rights of, and default by, the Agent, if any, acting together with the Agent in the reoffering of the Shares, and
the time and date (each such time and date being referred to herein as a “Principal Settlement Date”; and, together
with any Agency Settlement Date, a “Settlement Date”) and place of delivery of and payment for such Shares. In the
event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement shall control.
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g.
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Notwithstanding any other provision of this Agreement,
the Company shall not offer, sell or deliver, or request the offer or sale, of any Shares pursuant to this Agreement (whether in an Agency
Transaction or a Principal Transaction) and, by notice to the Agents given by telephone (confirmed promptly by email), shall cancel any
instructions for the offer or sale of any Shares, and the Agents shall not be obligated to offer or sell any Shares, (i) during any
period in which the Company is, or reasonably could be deemed to be, in possession of material non-public information, or (ii) at
any time from and including the date on which the Company shall issue a press release containing, or shall otherwise publicly announce,
its earnings, revenues or other results of operations (an “Earnings Announcement”) through and including the
time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K
that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings
Announcement.
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h.
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Anything in this Agreement to the contrary notwithstanding,
a Transaction Proposal shall not set forth a Specified Number of Shares that, when added to the aggregate number or aggregate Gross Sales
Price of Shares previously purchased and to be purchased pursuant to pending Transaction Acceptances (if any) hereunder and any Terms
Agreements, results or could result in a total number of shares that exceeds the Maximum Amount nor shall it set forth a Floor Price which
is lower than the minimum price authorized from time to time by the Company’s board of directors (the “Board”)
or, if permitted by applicable law and the Company’s charter and bylaws, a duly authorized committee thereof. Moreover, the Company
shall not authorize the issuance and sale of, and the Agents, as sales agents, shall not be obligated to use their commercially reasonable
efforts, consistent with their normal trading and sales practices, to sell, any Shares at a price lower than the Floor Price, or in a
number or with an aggregate gross or net sales price in excess of the number or aggregate gross or net sales price, as the case may be,
authorized from time to time to be issued and sold under this Agreement and any Terms Agreement, in each case by the Board or, if permitted
by applicable law and the Company’s charter and bylaws, a duly authorized committee thereof, or in a number in excess of the number
of Shares approved for listing on the Exchange, or in excess of the number or amount of Shares available for issuance on the Registration
Statement or in excess of the number or amount of Shares for which the Company has filed the Prospectus Supplement or other prospectus
supplement specifically relating to the offering of the Shares pursuant to this Agreement or as to which the Company has paid the applicable
registration fee, it being understood and agreed by the parties hereto that compliance with any such limitations shall be the sole responsibility
of the Company. Furthermore, the Company shall have responsibility for maintaining records with respect to the aggregate number and aggregate
Gross Sales Price of Shares sold and for otherwise monitoring the availability of Shares for sale under the Registration Statement and
for ensuring that the aggregate number and aggregate Gross Sales Price of Shares offered and sold does not exceed, and the price at which
any Shares are offered or sold is not lower than, the aggregate number and aggregate Gross Sales Price of Shares and the minimum price
authorized from time to time by the Board or, if permitted by applicable law and the Company’s charter and bylaws, a duly authorized
committee thereof.
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3.
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Representations, Warranties and Agreements of the Company.
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The Company represents and
warrants to the Agents on and as of (i) the date hereof (to the extent applicable), (ii) each date on which the Company receives
a Transaction Acceptance (the “Time of Acceptance”), (iii) each date on which the Company executes and delivers
a Terms Agreement, (iv) each Time of Sale (as defined in Section 3(a)), (v) each Settlement Date, and (vi) each Bring-Down
Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vi), a “Representation Date”),
as follows:
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a.
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Form S-3. The Company meets the requirements
for use of Form S-3 under the Act. As of the close of trading on Nasdaq on August 9, 2021, the aggregate market value of the
outstanding voting and non-voting common equity (as defined in Rule 405) of the Company held by persons other than affiliates of
the Company (pursuant to Rule 144 of the Act, those that directly, or indirectly through one or more intermediaries, control, or
are controlled by, or are under common control with, the Company) (the “Non-Affiliate Shares”), was equal to
or greater than $75.0 million (calculated by multiplying (x) the price at which the common equity of the Company was last sold on
the Exchange on August 9, 2021 by (y) the number of Non-Affiliate Shares outstanding on August 9, 2021). The Company is
not, and has not been for at least 12 calendar months prior to the filing of the Registration Statement, a shell company. The Company
has prepared and filed with the Commission in accordance with the provisions of the Act, and the rules and regulations of the Commission
promulgated thereunder, the Registration Statement, relating to, among other things, the Shares. The Registration Statement and the offer
and sale of the Shares as contemplated hereby meet the requirements of Rule 415 under the Act and comply in all material respects
with such Rule. In the section entitled “Plan of Distribution” in the Prospectus Supplement, the Company has named SVB Leerink
and Raymond James as agents that the Company has engaged in connection with the transactions contemplated by this Agreement. When the
Registration Statement or any amendment thereof or supplement thereto was or is declared effective, it (i) complied or will comply,
in all material respects, with the requirements of the Act, the Exchange Act and the rules and regulations of the Commission thereunder
and (ii) did not or will not, contain any untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading. When any Prospectus was first filed with the Commission (whether
filed as part of the Registration Statement or any amendment thereto or pursuant to Rule 424 of the Act) and when any amendment thereof
or supplement thereto was first filed with the Commission, such Prospectus as amended or supplemented, together with all of the then issued
Permitted Free Writing Prospectuses, if any, complied in all material respects with the applicable provisions of the Act and did not or
will not, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If applicable,
the Prospectus delivered to the Agents for use in connection with this offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. Notwithstanding the foregoing,
none of the representations and warranties in this paragraph 3(a) shall apply to statements in, or omissions from, the Registration
Statement, the Prospectus or any Permitted Free Writing Prospectus made in reliance upon, and in conformity with, information herein or
otherwise furnished in writing by the Agents specifically for use in the Registration Statement, the Prospectus or such Permitted Free
Writing Prospectus. With respect to the preceding sentence, the Company acknowledges that the only information furnished in writing by
the Agents for use in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus are the statements set forth
in Exhibit D hereto (collectively, the “Information Supplied by the Agents”). As used herein, “Time
of Sale” means (i) with respect to each offering of Shares pursuant to this Agreement, the time of the Agents’ initial
entry into contracts for the sale of such Shares, and (ii) with respect to each offering of Shares pursuant to any relevant Terms
Agreement, the time of sale of such Shares.
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b.
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Representation Date. As of each Representation Date, none of the Registration Statement, the Prospectus
or any Permitted Free Writing Prospectus includes or will include any untrue statement of a material fact or omitted, omits or will omit
to state any material fact required to be stated therein or necessary in order 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 statements in
or omissions in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus made in reliance upon and in conformity
with the Information Supplied by the Agents.
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c.
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No Stop Orders. The Registration Statement is effective under the Act and no stop order preventing
or suspending the effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus or any free writing
prospectus has been issued by the Commission and no proceedings for that purpose have been instituted or are threatened under the Act.
Any required filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) of the Act has been or will be made
in the manner and within the time period required by such Rule 424(b). Any material required to be filed by the Company pursuant
to Rule 433(d) or Rule 163(b)(2) of the Act has been or will be made in the manner and within the time period required
by such rules.
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d.
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Incorporation by Reference. The Incorporated Documents, at the time they became effective or were
filed with the Commission, as the case may be, complied in all material respects with the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder, and none of the Incorporated Documents contained an untrue
statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order 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 Registration Statement, any preliminary prospectus and the Prospectus, 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 light of the circumstances
under which they are made, not misleading.
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e.
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Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Shares or until any earlier date that the Company notified or notifies
the Agents as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement, including any Incorporated Documents and any prospectus supplement
deemed to be a part thereof that has not been superseded or modified, including any Incorporated Documents that has not been superseded
or modified by the Prospectus.
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If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus
conflicted or would conflict with the information contained in the Registration Statement or the Prospectus, or included or would include
an untrue statement of a material fact or omitted or would omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances prevailing at the subsequent time, not misleading, the Company
has promptly notified or will promptly notify the Agents and has promptly amended or will promptly amend or supplement, at its own expense,
such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
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f.
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Organization and Qualification. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation and the Company is qualified to do business as a foreign corporation
in each jurisdiction in which qualification is required, except where failure to so qualify would not have a Material Adverse Effect (as
defined below). Each of the Company’s subsidiaries (each a “Subsidiary” and collectively the “Subsidiaries”)
is a direct or indirect wholly owned subsidiary of the Company. Each Subsidiary is duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation and is qualified to do business as a foreign corporation in each jurisdiction in which
qualification is required, except where failure to so qualify would not have a Material Adverse Effect.
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g.
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Not Ineligible Issuer. At the earliest time after the filing of the Registration Statement that
the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Act) of the
Shares and (ii) at the date hereof, the Company is not an “ineligible issuer,” as defined in Rule 405 of the Act,
including (but not limited to) the Company or any other subsidiary in the preceding three years not having been convicted of a felony
or misdemeanor or having been made the subject of a judicial or administrative decree or order as described in Rule 405 of the Act.
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h.
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Accuracy of Description. There is no document,
contract or other agreement required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement which is not described or filed as required by the Act. Each description of a contract, document or other agreement
in the Registration Statement or the Prospectus accurately reflects in all material respects the terms of the underlying contract, document
or other agreement. Each contract, document or other agreement described in the Registration Statement or the Prospectus or listed in
the exhibits to the Registration Statement to which the Company is a party or to which its assets are bound is in full force and effect
and is valid and enforceable by and against the Company in accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws relating to or affecting creditors’ rights
and remedies generally, and subject, as to enforceability, to general principles of equity and, with respect to equitable relief, the
discretion of the court before which any proceeding therefor may be brought (regardless of whether enforcement is sought in a proceeding
at law or in equity), and with respect to indemnification thereunder, except as rights may be limited by applicable law or policies underlying
such law. The Company is not and, to the Company’s knowledge, no other party is, in material default in the observance or performance
of any term or obligation to be performed by it under any such agreement, and no event has occurred which with notice or lapse of time
or both would constitute such a material default. No material default exists, and no event has occurred which with notice or lapse of
time or both would constitute a material default, in the due performance and observance of any term, covenant or condition, by the Company
of any other agreement or instrument to which the Company is a party or by which the Company or its properties or business may be bound
or affected.
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i.
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Statistical and Market Data. The statistical and market related data included in the Registration
Statement or the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate.
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j.
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Authorized Capital Stock. The Company had duly authorized and validly issued outstanding capitalization
as, and as of the dates, set forth in the Registration Statement and the Prospectus. The issued and outstanding shares of Common Stock
have been duly authorized and validly issued, are fully paid and nonassessable, have been issued in compliance with all federal and state
securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities,
are free and clear of any security interest, mortgage, pledge, lien, encumbrance or adverse claim and conform in all material respects
to the description contained in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the
Prospectus and except for stock options granted by the Company in amounts that are consistent with grants historically made by the Company,
the Company does not have outstanding any options to purchase, or any preemptive rights or other rights to subscribe for or to purchase,
any securities or obligations convertible into, or any contracts or commitments to issue or sell, shares of its capital stock or any such
options, rights, convertible securities or obligations. With respect to each of the Subsidiaries (i) all the issued and outstanding
shares of such Subsidiary’s capital stock have been duly authorized and validly issued, are fully paid and nonassessable, have been
issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive rights or
other rights to subscribe for or purchase securities, and (ii) there are no outstanding options to purchase, or any preemptive rights
or other rights to subscribe for or to purchase, any securities or obligations convertible into, or any contracts or commitments to issue
or sell, shares of such Subsidiary’s capital stock or any such options, rights, convertible securities or obligations.
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k.
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Due Execution, Delivery and Performance of the Agreement. The Company has full legal right, corporate
power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized,
executed and delivered by the Company. This Agreement constitutes a legal, valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application relating to or affecting the enforcement of creditors’ rights and the application
of equitable principles relating to the availability of remedies, and except as rights to indemnity or contribution may be limited by
federal or state securities law or the public policy underlying such laws. The execution and performance of this Agreement by the Company
and the consummation of the transactions herein contemplated will not violate any provision of the certificate of incorporation or bylaws
of the Company or the organizational documents of any Subsidiary and will not result in the creation of any lien, charge, security interest
or encumbrance upon any assets of the Company or any Subsidiary pursuant to the terms or provisions of, or will not conflict with, result
in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under any agreement,
mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument to which any of the Company or any Subsidiary
is a party or by which any of the Company or any Subsidiary or their respective properties may be bound or affected and in each case that
would have a Material Adverse Effect or any statute or any authorization, judgment, decree, order, rule or regulation of any court
or any regulatory body, administrative agency or other governmental agency or body applicable to the Company or any Subsidiary or any
of their respective properties. No consent, approval, authorization or other order of any court, regulatory body, administrative agency
or other governmental agency or body is required for the execution and delivery of this Agreement or the consummation of the transactions
contemplated by this Agreement, except for compliance with the blue sky laws and federal securities laws applicable to any offering of
Shares. For the purposes of this Agreement, the term “Material Adverse Effect” shall mean a material adverse effect
on the condition (financial or otherwise), properties, business, prospects or results of operations of the Company and its Subsidiaries,
taken as a whole, except any of the following, either alone or in combination, shall not be deemed a Material Adverse Effect: (i) effects
caused by changes or circumstances affecting general economic or political conditions or conditions in securities markets or that are
generally applicable to the industry in which the Company or its Subsidiaries operate, provided that such effects do not adversely affect
the Company and its Subsidiaries, taken as a whole, in a disproportionate manner, or (ii) effects caused by any event, occurrence
or condition resulting from or relating to the taking of any action in accordance with this Agreement.
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l.
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Accountants. Brightman Almagor Zohar &
Co., member of Deloitte Touche Tohmatsu Limited, who have certified certain financial statements of the Company, whose report is incorporated
by reference in the Registration Statement and the Prospectus, are registered independent public accountants as required by the Act, the
Exchange Act and the rules and regulations promulgated thereunder and by the rules of the Public Company Accounting Oversight
Board (“PCAOB”) whose registration has not been suspended or revoked and who has not requested such registration
to be withdrawn. Brightman Almagor Zohar & Co., member of Deloitte Touche Tohmatsu Limited, has not been engaged by the Company
to perform any “prohibited activities” or provided to the Company any “non-audit services” (as defined in Section 10A
of the Exchange Act). There are no disagreements of any kind presently existing between the Company and Brightman Almagor Zohar &
Co., member of Deloitte Touche Tohmatsu Limited.
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m.
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No Defaults or Consents. Neither the execution, delivery and performance of this Agreement by the
Company nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the
Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or
result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would
constitute a default) under, except such defaults that individually or in the aggregate would not cause a Material Adverse Effect, or
require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or
assets of the Company or its Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument
to which the Company or any of its Subsidiaries is a party or by which either the Company or its Subsidiaries or any of its or their properties
or businesses is bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the
Company or any of its Subsidiaries or violate any provision of the charter or by-laws of the Company or any of its Subsidiaries, except
for such consents or waivers which have already been obtained and are in full force and effect.
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n.
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Contracts. Each contract that is material to the business of the Company and its Subsidiaries has
been duly and validly authorized, executed and delivered by the Company or such Subsidiary, as applicable, and constitute the legal, valid
and binding agreements of the Company or such Subsidiary, as applicable, enforceable by and against it in accordance with their respective
terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating
to enforcement of creditors’ rights generally, and general equitable principles relating to the availability of remedies, and except
as rights to indemnity or contribution may be limited by federal or state securities laws and the public policy underlying such laws.
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o.
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No Actions. There are no legal or governmental actions, suits or proceedings pending or, to the
Company’s knowledge, threatened against the Company or any Subsidiary before or by any court, regulatory body or administrative
agency or any other governmental agency or body, domestic, or foreign, which actions, suits or proceedings, individually or in the aggregate,
might reasonably be expected to have a Material Adverse Effect; and no labor dispute with or disturbance by the employees or principal
suppliers, manufacturers, contractors or customers of the Company or its Subsidiaries exists or, to the knowledge of the Company, is imminent,
that might reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiary is a party to or subject to
the provisions of any injunction, judgment, decree or order of any court, regulatory body, administrative agency or other governmental
agency or body that might have a Material Adverse Effect.
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p.
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Properties. The Company and each Subsidiary has good and marketable title to all the properties
and assets described as owned by it in the Registration Statement and the Prospectus, free and clear of all liens, mortgages, pledges,
or encumbrances of any kind except those that are not material in amount and do not adversely affect the use made and proposed to be made
of such property by the Company or its Subsidiaries. The Company and each Subsidiary holds its leased properties under valid and binding
leases. The Company and any Subsidiary owns or leases all such properties as are necessary to its operations as now conducted.
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q.
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No Material Adverse Change. Since the dates as of which information is given in the Registration
Statement and the Prospectus, (i) the Company and its Subsidiaries have not incurred any material liabilities or obligations, indirect,
or contingent, or entered into any material agreement or other transaction, in each case that are not or is not in the ordinary course
of business of the Company or its Subsidiaries; (ii) the Company and its Subsidiaries have not sustained any material loss or interference
with their businesses or properties from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) the Company
and its Subsidiaries have not paid or declared any cash dividends or other cash distributions with respect to their capital stock and
none of the Company or any Subsidiary is in default in the payment of principal or interest on any outstanding debt obligations; (iv) except
as described in the Prospectus Supplement, there has not been any change in the capital stock of the Company or its Subsidiaries other
than any sale of Shares hereunder and shares or options issued pursuant to employee equity incentive plans or purchase plans approved
by the Board, or indebtedness material to the Company or its Subsidiaries (other than in the ordinary course of business and any required
scheduled payments); (v) no event, liability, fact, circumstances, occurrence or development has occurred or exists or is reasonably
expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, properties, operations, assets
or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation
is made or deemed to be made that has not been publicly disclosed at least one (1) trading day prior to the date that this representation
is made; and (vi) there has not occurred any event that has caused or could reasonably be expected to cause a Material Adverse Effect.
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r.
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Regulatory Authority. Except, in each case, where such event could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, the Company and each of its Subsidiaries: (i) has not received
any unresolved U.S. Food and Drug Administration (“FDA”) or similar governmental agency or body (“Governmental
Authority”) written notice of inspectional observations, Form 483, written notice of adverse filing, warning letter, untitled
letter or other similar correspondence or notice from the FDA, or any other court or arbitrator or federal, state, local or foreign governmental
or regulatory authority, alleging or asserting material noncompliance with the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301
et seq.), or received any written requests or requirements to make material changes to its products by the FDA or any other Governmental
Authority; (ii) is and has been in compliance with applicable health care laws, including, the Federal Food, Drug and Cosmetic Act
(21 U.S.C. § 301 et seq.), the federal Anti-kickback Statute (42 U.S.C. § 1320a-7b(b)), the civil False Claims Act (31 U.S.C.
§§ 3729 et seq.), the criminal False Claims Law (42 U.S.C. § 1320a-7b(a)), the Civil Monetary Penalties Law (42 U.S.C.
§ 1320a-7a), the Physician Payment Sunshine Act (42 U.S.C. § 1320a-7h), all criminal laws relating to health care fraud and
abuse, including but not limited to 18 U.S.C. Sections 286 and 287, and the health care fraud criminal provisions under the Health Insurance
Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq.) (“HIPAA”), the exclusion laws (42 U.S.C.
§ 1320a-7), Medicare (Title XVIII of the Social Security Act), Medicaid (Title XIX of the Social Security Act), HIPAA, as amended
by the Health Information Technology for Economic and Clinical Health Act of 2009, and the regulations promulgated pursuant to such laws,
and comparable state laws, and all other foreign, federal, state and local laws relating to the regulation of the Company and its Subsidiaries
(collectively, “Health Care Laws”); (iii) has not engaged in activities which are, as applicable, cause for false
claims liability, civil penalties, or mandatory or permissive exclusion from Medicare, Medicaid, or any other state health care program
or federal health care program; (iv) possesses all governmental permits and supplements or amendments thereto required by any such
Health Care Laws and/or to carry on its businesses as currently conducted as described in the Registration Statement and the Prospectus
(“Authorizations”), and such Authorizations are valid and in full force and effect and neither the Company nor any
of its Subsidiaries is in material violation of any term of any such Authorizations; (v) has not received written notice of any ongoing
claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any Governmental Authority alleging
that any product, operation or activity is in material violation of any Health Care Laws or Authorizations and has no knowledge that any
such Governmental Authority has threatened any such claim, litigation, arbitration, action, suit, investigation or proceeding; (vi) has
not received written notice that any Governmental Authority has taken, is taking or intends to take action to limit, suspend, modify or
revoke any Authorizations and has no knowledge that any such Governmental Authority has threatened such action; (vii) has filed,
obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements
or amendments thereto as required by any Health Care Laws or Authorizations and all such reports, documents, forms, notices, applications,
records, claims, submissions and supplements or amendments were complete, correct and not misleading on the date filed (or were corrected
or supplemented by a subsequent submission); (viii) is not a party to any corporate integrity agreement, deferred prosecution agreement,
monitoring agreement, consent decree, settlement order, or similar agreements, or has any reporting obligations pursuant to any such agreement,
plan or correction or other remedial measure entered into with any Governmental Authority; (ix) has not, nor has any officer, director,
employee, agent or, to the knowledge of the Company or any Subsidiary, any distributor of the Company or any Subsidiary, made an untrue
statement of a material fact or a fraudulent statement to the FDA or any other Governmental Authority, failed to disclose a material fact
required to be disclosed to the FDA or any other Governmental Authority, or committed an act, made a statement, or failed to make a statement,
in each such case, related to the business of the Company or its Subsidiaries that, at the time such disclosure was made, would reasonably
be expected to provide a basis for the FDA to invoke its policy respecting “Fraud, Untrue Statements of Material Facts, Bribery,
and Illegal Gratuities,” set forth in 56 Fed. Reg. 46191 (September 10, 1991) or for the FDA or any other Governmental Authority
to invoke any similar policy; (x) has not, nor has any officer, director, employee, or, to the knowledge of the Company or any Subsidiary,
any agent or distributor of the Company or any Subsidiary, been debarred or convicted of any crime or engaged in any conduct for which
debarment is mandated by 21 U.S.C. § 335a(a) or any similar law or authorized by 21 U.S.C. § 335a(b) or any similar
law applicable in other jurisdictions in which the Company’s products or Subsidiary’s product candidates are sold or intended
by the Company to be sold; and (xi) neither the Company, its Subsidiaries nor their officers, directors, employees, agents or contractors
has been or is currently debarred, suspended or excluded from participation in the Medicare and Medicaid programs or any other state or
federal health care program.
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s.
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Clinical Trials. The research, non-clinical and pre-clinical studies and clinical trials and tests
conducted or being conducted by or on behalf of the Company or any of its Subsidiaries or in which any of their respective product candidates
have participated (collectively, the “Studies”) that are described in, or the results of which are referred to in,
the Registration Statement and the Prospectus were and, if still pending, are being conducted in all material respects in accordance with
the protocols, procedures and controls pursuant to all applicable laws and Authorizations; each description of the results of such Studies
is accurate and complete in all material respects and fairly presents the data derived from such Studies, and the Company and its Subsidiaries
have no knowledge of any other research, non-clinical studies or tests the results of which are inconsistent with, or otherwise call into
question, the results described or referred to in the Registration Statement and the Prospectus except as otherwise disclosed in the Registration
Statement and the Prospectus; the Company and its Subsidiaries have made all such filings and obtained all such approvals as may be required
by the FDA or any committee thereof or from any other United States or foreign government agency with jurisdiction over the types of products
being developed by the Company except as would not reasonably be expected to have a Material Adverse Effect; neither the Company nor any
of its Subsidiaries has received any written notice of, or correspondence from, any Governmental Authority requiring the termination,
suspension or material modification of any Study; and the Company and its Subsidiaries have each operated and currently are in compliance
in all material respects with all applicable rules, regulations and policies of all Governmental Authorities. To the Company’s knowledge,
the manufacturing facilities and operations of its suppliers are operated in compliance in all material respects with all applicable laws
and Authorizations.
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t.
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Intellectual Property. The Company and/or its Subsidiaries own, or have obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications, patents, trademarks (both registered and unregistered), tradenames,
service names, copyrights, trade secrets and other intellectual property described in the Registration Statement or the Prospectus as
being owned or licensed by them or which are necessary for the conduct of their businesses as currently conducted or as currently proposed
to be conducted that cover the products or product candidates described in the Registration Statement or the Prospectus as under development
(collectively, “Intellectual Property”), except where the failure to own, license or have such rights could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge: (i) there are no
third parties who have or who will be able to establish rights to any of the patents or patent applications of the Company or its Subsidiaries,
except for, and to the extent of, the ownership rights of the owners of the Intellectual Property which the Registration Statement or
the Prospectus disclose are licensed to the Company or any of its Subsidiaries; (ii) there is no infringement by third parties of
any of the Intellectual Property; (iii) there is no pending or threatened action, suit, proceeding or claim by others challenging
the Company’s or its Subsidiaries’ rights, as applicable, in or to any Intellectual Property, and the Company and its Subsidiaries
are unaware of any facts that could form a reasonable basis for any such action, suit, proceeding or claim; (iv) there is no pending
or threatened action, suit, proceeding or claim by others challenging the validity, enforceability or scope of any Intellectual Property,
and the Company is unaware of any facts that could form a reasonable basis for any such action, suit, proceeding or claim; (v) there
is no pending or threatened action, suit, proceeding or claim by others that the Company or any of its Subsidiaries infringes or otherwise
violates (or would, upon the commercialization of any product or service described in the Registration Statement and the Prospectus as
under development, infringe or violate) any patent, trademark, tradename, service name, copyright, trade secret or other proprietary rights
of others, and the Company is unaware of any facts that could form a reasonable basis for any such action, suit, proceeding or claim;
(vi) the Company and/or its Subsidiaries have complied in all material respects with the terms of each agreement pursuant to which
Intellectual Property has been licensed to the Company or any of its Subsidiaries, and all such agreements are in full force and effect;
(vii) there is no patent or patent application that contains claims that interfere with the issued or pending claims of any of the
Intellectual Property or that challenges the validity, enforceability or scope of any of the Intellectual Property; and (viii) there
is no prior art that may render any patent application within the Intellectual Property unpatentable that has not been disclosed to the
U.S. Patent and Trademark Office.
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u.
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Compliance. None of the Company nor its Subsidiaries have been advised, nor do any of them have
any reason to believe, that the Company and its Subsidiaries are not conducting business in compliance with all applicable laws, rules and
regulations of the jurisdictions in which it is conducting business, including, without limitation, all applicable local, state and federal
environmental laws and regulations, except where failure to be so in compliance would not have a Material Adverse Effect.
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v.
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Taxes. The Company and its Subsidiaries have filed on a timely basis (giving effect to extensions)
all required federal, state and foreign income and franchise tax returns and has paid or accrued all taxes shown as due thereon, and none
of the Company or any Subsidiary has knowledge of a tax deficiency that has been or might be asserted or threatened against it that could
have a Material Adverse Effect. All tax liabilities accrued through the date hereof have been adequately provided for on the books of
the Company and its Subsidiaries.
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w.
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Investment Company. Neither the Company nor any Subsidiary is, and, following the completion of
any offering of Shares, will not be, an “investment company” or an “affiliated person” of, or “promoter”
or “principal underwriter” for an investment company, within the meaning of the Investment Company Act of 1940, as amended,
and the rules and regulations of the Commission promulgated thereunder.
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x.
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Insurance. The Company and its Subsidiaries maintain insurance underwritten by insurers of recognized
financial responsibility, of the types and in the amounts that such entities reasonably believe is adequate for their respective businesses,
including, but not limited to, insurance covering all real and personal property owned or leased by such entities against theft, damage,
destruction, acts of vandalism and all other risks customarily insured against, with such deductibles as are customary for companies in
the same or similar businesses, all of which insurance is in full force and effect.
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y.
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Use of Proceeds. The Company shall use the proceeds from any sale of Shares to fund its operations,
which includes, but is not limited to advancing the Company’s clinical programs, commercial production of the investigational therapeutic
NurOwn® (whether for ALS or other indications), regulatory, pre-marketing and commercialization preparation activities of NurOwn®
for ALS, working capital and general corporate purposes..
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z.
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Related Party Transactions. No transaction has occurred between or among the Company, on the one
hand, and its affiliates, officers or directors on the other hand, or between any Subsidiary, on the one hand, and its affiliates, officers
or directors on the other hand, that is required to have been described under applicable securities laws in the Registration Statement
and the Prospectus, that is not so described.
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aa.
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Off-Balance Sheet Arrangements. There is no transaction, arrangement or other relationship between
the Company or any Subsidiary and an unconsolidated or other off-balance sheet entity that is required to have been described under applicable
securities laws in the Registration Statement and the Prospectus that is not so disclosed or that otherwise would be reasonably likely
to have a Material Adverse Effect. There are no such transactions, arrangements or other relationships with the Company or any Subsidiary
that may create contingencies or liabilities that have not been otherwise disclosed by the Company in the Registration Statement and the
Prospectus.
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bb.
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Governmental Permits. The Company and each Subsidiary has all franchises, licenses, certificates
and other authorizations from such federal, state or local government or governmental agency, department or body that are currently necessary
for the operation of the business of the Company and its Subsidiaries as currently conducted, except where the failure to possess currently
such franchises, licenses, certificates and other authorizations is not reasonably expected to have a Material Adverse Effect. Neither
the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any such permit that,
if the subject of an unfavorable decision, ruling or finding, could reasonably be expected to have a Material Adverse Effect.
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cc.
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Financial Statements. The financial statements of the Company, and the related notes and schedules
thereto, included or incorporated by reference in the Registration Statement and the Prospectus fairly present in all material respects
the financial position, results of operations, stockholders’ equity and cash flows of the Company at the dates and for the periods
specified therein. Such financial statements and the related notes and schedules thereto have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods involved (except as otherwise noted therein) and all adjustments
necessary for a fair presentation in all material respects of results for such periods have been made; provided, however, that the unaudited
financial statements are subject to normal year-end audit adjustments (which are not expected to be material) and do not contain all footnotes
required under generally accepted accounting principles. The Company and the Subsidiaries do not have any material liabilities or obligations,
direct or contingent, which were required to be disclosed in the the Registration Statement and the Prospectus that are not otherwise
disclosed.
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dd.
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Listing Compliance. The Company complies with all requirements of Nasdaq and shall cause the Shares
to be approved for listing on Nasdaq. The issuance and sale of the Shares hereunder does not contravene the rules and regulations
of Nasdaq.
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ee.
|
Internal Accounting Controls. The Company and each Subsidiary maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general
or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only
in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and each Subsidiary
has disclosure controls and procedures (as defined in Rules 13a-14 and 15d-14 under the Exchange Act) that are designed to ensure
that material information relating to such entity is made known to such entity’s principal executive officer and principal financial
officer or persons performing similar functions. The Company and each Subsidiary is otherwise in compliance in all material respects with
all applicable provisions of the Sarbanes-Oxley Act of 2002, as amended and the rules and regulations promulgated thereunder.
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ff.
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Foreign Corrupt Practices. Neither the Company, nor any Subsidiary, nor, to the Company’s
knowledge, any director, officer, agent, employee or other persons acting on behalf of the Company or any Subsidiary has, in the course
of its actions for, or on behalf of, the Company (i) used any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expenses relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; or (iii) made any unlawful bribe, rebate, payoff, influence payment, kickback
or other unlawful payment to any foreign or domestic government official or employee. None of the Company, any Subsidiary director, officer
or employee thereof or, to the best of the Company’s knowledge, any agent, representative or other person acting on behalf of the
Company or any of its Subsidiaries or affiliates, is aware of or has taken any action, directly or indirectly, that would result in a
violation by such persons of any applicable anti-corruption laws, including the Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any
means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign
political office or otherwise took any action (or failed to fully disclose any action) in contravention of the FCPA; and the Company,
its Subsidiaries and each of their respective affiliates have conducted their businesses in compliance with the FCPA and have instituted
and maintain, and will continue to maintain, policies and procedures designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.
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gg.
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OFAC. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director,
officer, agent, employee, affiliate or person acting on behalf of the Company or any Subsidiary is currently owned or controlled by an
individual or entity, or is located, organized or resident in a country or territory, that is subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not knowingly,
directly or indirectly, use the proceeds of any sale of the Shares, or lend, contribute or otherwise make available such proceeds to any
Subsidiary, joint venture partner or other person or entity, towards any sales or operations in any country sanctioned by OFAC or for
the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
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|
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hh.
|
Money Laundering Laws. The operations of each of the Company and any Subsidiary are and have been
conducted at all times in material compliance with the money laundering statutes of applicable jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any applicable governmental
agency (collectively, the “Money Laundering Laws”) and to the Company’s and its Subsidiary’s knowledge,
no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company
and/or any Subsidiary with respect to the Money Laundering Laws is pending or threatened.
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|
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ii.
|
Employee Relations. Neither the Company nor any Subsidiary is a party to any collective bargaining
agreement or employs any member of a union. The Company and each Subsidiary believes that their relations with their employees are good.
No executive officer of the Company (as defined in Rule 501(f) promulgated under the Act) has notified the Company, as applicable,
that such officer intends to leave the Company or any Subsidiary, as applicable, or otherwise terminate such officer’s employment
with the Company or any Subsidiary, as applicable. To the knowledge of the Company, no executive officer of the Company or any Subsidiaries
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement, non-competition agreement, or any other agreement or any restrictive covenant, and the continued employment of
each such executive officer does not subject the Company or any Subsidiary to any liability with respect to any of the foregoing matters.
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|
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jj.
|
ERISA. The Company and each Subsidiary is in compliance in all material respects with all presently
applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations
thereunder (herein called “ERISA”); no “reportable event” (as defined in ERISA) has occurred with respect
to any “pension plan” (as defined in ERISA) for which the Company or its Subsidiaries would have any liability; neither the
Company nor its Subsidiaries have incurred and do not expect to incur liability under (i) Title IV of ERISA with respect to termination
of, or withdrawal from, any “pension plan”; or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the “Code”); and each “Pension Plan”
for which the Company or the Company’s Subsidiaries would have liability that is intended to be qualified under Section 401(a) of
the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which would cause
the loss of such qualification.
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kk.
|
Environmental Matters. There has been no storage, disposal, generation, manufacture, transportation,
handling or treatment of toxic wastes, hazardous wastes or hazardous substances by the Company or any Subsidiary (or, to the knowledge
of the Company, any of their predecessors in interest) at, upon or from any of the property now or previously owned or leased by the Company
or any Subsidiary in violation in any material respect of any applicable law, ordinance, rule, regulation, order, judgment, decree or
permit or that would require material remedial action under any applicable law, ordinance, rule, regulation, order, judgment, decree or
permit; there has been no material spill, discharge, leak, emission, injection, escape, dumping or release of any kind into such property
or into the environment surrounding such property of any toxic wastes, medical wastes, solid wastes, hazardous wastes or hazardous substances
due to or caused by the Company or any Subsidiary or with respect to which the Company or any Subsidiary have knowledge; the terms “hazardous
wastes,” “toxic wastes,” “hazardous substances” and “medical wastes” shall have the meanings
specified in any applicable local, state, federal and foreign laws or regulations with respect to environmental protection.
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ll.
|
FINRA. To the Company’s knowledge, there are no affiliations with the Financial Industry
Regulatory Authority, Inc. (“FINRA”) among the Company’s officers, directors or any five percent or greater
stockholder of the Company, except as set forth in the Registration Statement or otherwise disclosed in writing to the Agent.
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mm.
|
Authorization of the Shares. The Shares to be sold by the Agents, acting as agent and/or principal
for the Company, have been duly authorized and when issued and paid for as contemplated herein will be validly issued, fully paid and
non-assessable and will conform in all material respects to the description thereof contained in the Prospectus. The issuance of the Shares
is not subject to the preemptive or other similar rights of any stockholder of the Company, except for such rights as have been duly and
properly waived. When issued and delivered by the Company against payment therefor pursuant to this Agreement, the purchasers of the Shares
issued and sold hereunder will acquire good, marketable and valid title to such Shares, free and clear of all pledges, liens, security
interests, charges, claims or encumbrances. The issuance and sale of the Shares as contemplated hereby will not cause any holder of any
share capital, securities convertible into or exchangeable or exercisable for share capital or options, warrants or other rights to purchase
share capital or any other securities of the Company to have any right to acquire any preferred shares of the Company. There are no restrictions
upon the voting or transfer of the Common Stock under the Company’s amended and restated certificate of incorporation or amended
and restated bylaws or any agreement or other instrument to which the Company is a party or otherwise filed as an exhibit to the Registration
Statement.
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nn.
|
No Applicable Registration or Other Similar Rights. There are no persons with registration or other
similar rights to have any equity or debt securities registered for sale under the Registration Statement or included in the offering
contemplated by this Agreement, except for such rights as have been duly waived. No person has the right to act as an underwriter or as
a financial advisor to the Company in connection with the offer and sale of the Shares hereunder, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the Shares as contemplated hereby or otherwise.
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oo.
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XBRL. The interactive data in eXtensible Business Reporting Language included or incorporated by
reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance
with the Commission’s rules and guidelines applicable thereto.
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pp.
|
No Price Stabilization or Manipulation. Neither the Company, nor any of its subsidiaries, nor any
of its or their respective directors, officers or, to the knowledge of the Company, controlling persons has taken, directly or indirectly,
any action designed to or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Common Stock.
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qq.
|
Related-Party Transactions. There are no business relationships or related-party transactions involving
the Company or any subsidiary or any other person required to be described in the Prospectus which have not been described as required.
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rr.
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Brokers. Neither the Company nor any of its subsidiaries is a party to any contract, agreement
or understanding with any person (other than as contemplated by this Agreement) that would give rise to a valid claim against the Company
or any of its Subsidiaries or the Agents for a brokerage commission, finder’s fee or like payment in connection with the offering
and sale of the Shares by the Agents under this Agreement.
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ss.
|
No Outstanding Loans of Other Indebtedness. There are no outstanding loans, advances (except normal
advances for business expenses in the ordinary course of business) or guarantees of indebtedness by the Company to or for the benefit
of any of the officers or directors of the Company or any of their respective family members, except as disclosed in the Prospectus. The
Company has not directly or indirectly extended or maintained credit, arranged for the extension of credit, or renewed an extension of
credit, in the form of a personal loan to or for any director or executive officer of the Company.
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tt.
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No Reliance. The Company has not relied upon the Agents or legal counsel for the Agents for any
legal, tax or accounting advice in connection with the offering and sale of the Shares.
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uu.
|
Underwriter Agreements. The Company is not a party to any agreement with any other agent or underwriter
for any other “at-the-market” or continuous equity transaction or any “equity line” transaction.
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vv.
|
Director Independence. Each of the independent directors (or independent director nominees, once
appointed, if applicable) named in the Registration Statement and Prospectus satisfies the independence standards established by the Exchange
and, with respect to members of the Company’s audit committee, the enhanced independence standards contained in Rule 10A-3(b)(1) promulgated
by the Commission under the Exchange Act.
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ww.
|
No Integration. Neither the Company nor, to the Company’s knowledge, any of its affiliates
(within the meaning of Rule 144 under the Act) has, prior to the date hereof, made any offer or sale of any securities which could
be “integrated” (within the meaning of the Act) with the offer and sale of the Shares hereunder.
|
Any certificate signed by any officer
of the Company and delivered to the Agents in connection with any offering of Shares shall be deemed a representation and warranty by
the Company to the Agents as to the matters covered thereby.
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4.
|
Certain Covenants of the Company. The Company covenants and agrees with the Agents as follows:
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a.
|
The Company will use its commercially reasonable efforts to cause the Registration Statement and any amendments
thereto to become effective, if it has not already become effective, and will advise you promptly, and if requested by you, will confirm
such advice in writing (i) when the Registration Statement has become effective and the time and date of any filing of any post-effective
Registration Statement or any amendment or supplement to any preliminary prospectus or the Prospectus and the time and date that any post-effective
amendment to the Registration Statement becomes effective, (ii) of the receipt of any comments of the Commission, or any request
by the Commission for amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus or for additional
information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement
or of the suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceeding for such
purposes; and (iv) within the period of time referred to in Section 4(h) hereof, of any change in the Company’s condition
(financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention
of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue
in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein
(in the case of the Prospectus, in light of the circumstances under which they were made) not misleading in any material respect, or of
the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any
time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use commercially
reasonable efforts to obtain the withdrawal or lifting of such order at the earliest practicable time. The Company will provide the Agents
with copies of the form of Prospectus, in such number as the Agents may reasonably request, and file with the Commission such Prospectus
in accordance with Rule 424(b) under the Act before the close of business on the first business day immediately following the
date hereof.
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b.
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The Company will furnish to the Agents, without charge, two signed duplicate originals of the Registration
Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto,
and will also furnish to the Agents, without charge, such number of conformed copies of the Registration Statement as originally filed
and of each amendment thereto as the Agents may reasonably request.
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c.
|
The Company will promptly file with the Commission any amendment or supplement to the Registration Statement
or the Prospectus that may, in the reasonable judgment of the Company or the Agents be required by the Act or requested by the Commission.
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d.
|
The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the
Prospectus or any Issuer Free Writing Prospectus to the Agents and counsel for the Agents and obtain the Agents’ consent, which
will not be unreasonably withheld, prior to filing any of those with the Commission.
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e.
|
The Company will not make any offer relating to the Common Stock that would constitute an Issuer Free
Writing Prospectus without your prior consent, which will not be unreasonably withheld.
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f.
|
The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to
be filed pursuant to the Act; and, if at any time after the date hereof any events shall have occurred as a result of which any Issuer
Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most
recent preliminary prospectus 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 under which they were made, not misleading,
or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your
request, to file such document and to prepare and furnish without charge to the Agents as many copies as the Agents may from time to time
reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission
or effect such compliance.
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g.
|
Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you,
without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Prospectus. Consistent
with the provisions of Section 4(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and
with the securities or blue sky laws of the jurisdictions in which the Shares are offered by the Agents, prior to the date of the Prospectus,
of each preliminary prospectus so furnished by the Company.
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h.
|
As soon after the execution and delivery of this Agreement as is practicable and thereafter from time
to time for such period as in the reasonable opinion of counsel for the Agents a prospectus is required by the Act to be delivered in
connection with sales by the Agent, and for so long a period as you may request for the distribution of the Shares, the Company will deliver
to the Agents, without charge, as many copies of the Prospectus and any Time of Sale information in a Terms Agreement (and of any amendment
or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale information
(and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or “Blue Sky”
laws of the jurisdictions in which the Shares are offered by the Agents both in connection with any offering and sale of Shares and for
such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by the Agents or any
dealer. If at any time prior to the later of (i) the completion of the distribution of the Shares pursuant to any offering of Shares
contemplated by the Registration Statement, or (ii) the expiration of prospectus delivery requirements with respect to the Shares
under Section 4(a)(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or
in the opinion of counsel for the Agents is required to be set forth in the Prospectus (as then amended or supplemented) or should be
set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading,
or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare
and, subject to Section 5 hereof, file with the Commission and use its commercially reasonable efforts to cause to become effective
as promptly as possible an appropriate supplement or amendment thereto, and will furnish to the Agents, without charge, a reasonable number
of copies thereof.
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i.
|
The Company will cooperate with the Agents and counsel for the Agents in connection with the registration
or qualification of the Shares for offering and sale by the Agents under the securities or blue sky laws of such jurisdictions as the
Agents may reasonably designate and will file such consents to the service of process or other documents as may be reasonably necessary
in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Shares;
provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to the general service of process in suits, other than those arising out of any offering of
Shares or sale of the Shares, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject.
In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing.
The Company will use its commercially reasonable efforts to qualify or register its Common Stock for sale in non-issuer transactions under
(or obtain exemptions from the application of) the “blue sky” laws of each state where necessary to permit market-making transactions
and secondary trading and will comply with such “blue sky” laws and will continue such qualifications, registrations and exemptions
in effect during the Term of this Agreement.
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j.
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The Company will make generally available to its security holders a consolidated earnings statement (in
a form complying with the provisions of Rule 158), which need not be audited, covering a 12-month period commencing after the effective
date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter,
as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of
the Act.
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k.
|
During the Term of this Agreement, the Company will furnish or make available (which may be satisfied
by EDGAR filings or the Company’s website postings) to you, upon your request, (i) as soon as available, a copy of each proxy
statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, FINRA or Nasdaq
or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably
request.
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l.
|
If this Agreement is terminated by the Agents because of any inability, failure or refusal on the part
of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or
provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse the
Agents for all fees and expenses of counsel for the Agents reasonably incurred by the Agents in connection herewith, subject to an aggregate
maximum reimbursement of $50,000.
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m.
|
The Company will apply the net proceeds from any sale of Shares to be sold by it hereunder in accordance
in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
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n.
|
The Company will comply with all provisions of any undertakings contained in the Registration Statement.
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o.
|
The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably
be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the shares of Common Stock
to facilitate the sale or resale of any of the Shares.
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p.
|
The Company will timely file with Nasdaq all documents and notices required by the Nasdaq of companies
that have or will issue securities that are traded on the Nasdaq.
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q.
|
The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction
of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if
permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
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r.
|
Except as otherwise agreed between the Company and the Agents, the Company shall pay all costs, expenses,
fees and taxes in connection with (i) the preparation and filing of the Registration Statement, the Prospectus, any Permitted Free
Writing Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents
and to dealers (including costs of mailing and shipment), as may, in each case, be reasonably requested for use in connection with the
offering and sale of the Shares; (ii) the registration, issue and delivery of the Shares; (iii) the qualification of the Shares
for offering and sale under the securities or “blue sky” laws of such states or other jurisdictions as the Agents may reasonably
designate as described in Section 4(i) (including filing fees and the reasonable and documented legal fees and disbursements
of counsel to the Agents in connection therewith); (iv) the listing of the Shares on the Exchange and any registration thereof under
the Exchange Act; (v) any filing for review, and any review, of the public offering of the Shares by FINRA (including filing fees
and the reasonable and documented legal fees and disbursements of counsel to the Agents in connection therewith); (vi) the fees and
disbursements of counsel to the Company and of the Company’s independent registered public accounting firm; and (vii) the performance
of the Company’s other obligations hereunder and under any Terms Agreement; provided that, except as otherwise agreed with
the Company, the Agents shall be responsible for any transfer taxes on resale of Shares by them and any costs and expenses associated
with the sale and marketing of the Shares. Notwithstanding the foregoing, the Company shall reimburse the Agents for the reasonable documented
fees and disbursements of counsel for the Agents incurred in connection with any offering of Shares contemplated by this Agreement, subject
to an aggregate maximum reimbursement of $50,000, which, for the avoidance of doubt, is without duplication of the reimbursement amount
to be paid under Section 4(l) of this Agreement.
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|
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s.
|
The Company will indemnify and hold harmless the Agents against any documentary, stamp or similar issue tax, including any interest
and penalties, on the issue and sale of the Shares.
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|
|
t.
|
Without the prior written consent of the Agents, the Company will not, directly or indirectly, offer to
sell, sell, contract to sell, grant any option to sell or otherwise dispose of any shares of Common Stock (other than the Shares offered
pursuant to this Agreement) or securities convertible into or exchangeable or exercisable for shares of Common Stock, warrants or any
rights to purchase or acquire shares of Common Stock during the period beginning on the third trading day immediately prior to the date
on which any Transaction Proposal is delivered to an Agent hereunder or any Terms Agreement is entered into between the Company and an
Agent and ending on the final Settlement Date with respect to Shares sold pursuant to the Agency Transaction or the Terms Agreement (or,
if the Agency Transaction or Terms Agreement has been terminated or suspended prior to the sale of all Shares covered therein, the date
of such suspension or termination); and will not directly or indirectly in any other “at the market offering” or continuous
equity transaction offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any shares of Common Stock
(other than the Shares offered pursuant to this Agreement) or securities convertible into or exchangeable or exercisable for shares of
Common Stock, warrants or any rights to purchase or acquire, shares of Common Stock prior to the later of the termination of this Agreement
and the 60th day immediately following the final Settlement Date with respect to Shares sold pursuant to such Agency Transaction
or Terms Agreement; provided, however, that such restrictions will not be required in connection with the Company’s
issuance or sale of (i) shares of Common Stock, options to purchase shares of Common Stock, other securities under the Company’s
existing equity incentive plans, or shares of Common Stock issuable upon the exercise of options or vesting of other securities, pursuant
to any employee or director stock option or benefits plan, stock ownership plan or dividend reinvestment plan (but not shares of Common
Stock subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company whether now in effect or hereafter implemented,
(ii) shares of Common Stock issuable upon conversion of securities or the exercise of warrants, options or other rights in effect
or outstanding, and disclosed in filings by the Company available on EDGAR or otherwise in writing to the Agents and (iii) shares
of Common Stock or securities convertible into or exchangeable for shares of Common Stock as consideration for mergers, acquisitions,
other business combinations or strategic alliances occurring after the date of this Agreement which are not issued for capital raising
purposes.
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u.
|
If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial
effective date of the Registration Statement, the aggregate Gross Sales Price of Shares sold by the Company is less than the Maximum Amount
and this Agreement has not expired or been terminated, the Company will, prior to the Renewal Deadline, file, if it has not already done
so and is eligible to do so, a new shelf registration statement relating to the Shares, in a form satisfactory to the Agents, and will
use its commercially reasonable efforts to cause such registration statement to be declared effective within 60 days after the Renewal
Deadline. The Company will take all other actions reasonably necessary or appropriate to permit the issuance and sale of the Shares to
continue as contemplated in the expired registration statement relating to the Shares. References herein to the Registration Statement
shall include such new shelf registration statement.
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v.
|
If, from and after the date of this Agreement, the Company is no longer eligible to use Form S-3
pursuant to General Instruction I.B.1. of Form S-3 at the time it files with the Commission an annual report on Form 10-K or
any amendment to the Registration Statement for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus)
(such time of filing, the “Form S-3 Eligibility Determination Time”), then it shall, not later than 24 hours after
the Form S-3 Eligibility Determination Time, notify the Agents in writing that the Company is no longer eligible to use Form S-3
pursuant to General Instruction I.B.1. of Form S-3 as of the Form S-3 Eligibility Determination Time and shall, not later than
not later than the Commission’s close of business on the second Business Day following the date on which the Form S-3 Eligibility
Determination Time occurred (and in any event within the applicable time period prescribed therefor by Rule 424(b) under the
Act, without reliance on Rule 424(b)(8) under the Act), file with the Commission pursuant to Rule 424(b) under the
Act a new prospectus supplement with the Commission reflecting the maximum dollar amount of Shares available to be offered and sold by
the Company under this Agreement pursuant to General Instruction I.B.6. of Form S-3.
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|
|
5.
|
Execution of Agreement. The Agents’ obligations under this Agreement shall be subject to
the satisfaction of the following conditions:
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|
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a.
|
On or prior to the date on which the Company first delivers a Transaction Proposal pursuant to this Agreement, the Company shall have
delivered to the Agents:
|
|
|
(i)
|
an officers’ certificate signed by two officers of the Company (one of whom shall be the Chief Financial
Officer or other senior financial officer) certifying as to the matters set forth in Exhibit B hereto;
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|
|
(ii)
|
an opinion and negative assurance statement of each of Goodwin Procter LLP and Yigal Arnon &
Co., counsels to the Company, addressed to the Agents and dated the date of this Agreement in a form reasonably satisfactory to the Agents
and their counsel;
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(iii)
|
an opinion of Ehrlich & Fenster, special counsel for the Company with respect to intellectual
property, addressed to the Agents and dated the date of this Agreement, in form and substance reasonably satisfactory to the Agents and
their counsel;
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|
(iv)
|
a comfort letter from Brightman Almagor Zohar & Co., member of Deloitte Touche Tohmatsu Limited,
addressed to the Agents and dated the date of this Agreement, addressing such matters as the Agents may reasonably request;
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|
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(v)
|
evidence reasonably satisfactory to the Agents and their counsel that the Shares have been approved for
listing on the Exchange, subject only to notice of issuance on or before the date hereof;
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|
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(vi)
|
evidence reasonably satisfactory to the Agents and their counsel that the Registration Statement remains
effective;
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|
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(vii)
|
resolutions duly adopted by the Board, and certified by an officer of the Company, authorizing the Company’s
execution of this Agreement and the consummation by the Company of the transactions contemplated hereby, including the issuance and sale
of the Shares; and
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|
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(viii)
|
such other documents as the Agents shall reasonably request.
|
|
|
b.
|
On or prior to the date on which the Company first delivers a Transaction Proposal pursuant to this Agreement, the Agents shall have
received a letter or letters, which shall include legal opinions and negative assurance statements, of Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C., counsel to the Agents, addressed to the Agents and dated the date of this Agreement, addressing such matters as the Agents
may reasonably request.
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|
|
6.
|
Additional Covenants of the Company. The Company further covenants and agrees with each of the
Agents as follows:
|
|
|
a.
|
Each Transaction Proposal made by the Company that is accepted by the Agents by means of a Transaction
Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the
representations, warranties and agreements of the Company herein contained and contained in any certificate delivered to the Agents pursuant
hereto are true and correct at such Time of Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking
that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though
made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration
Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance
or Terms Agreement, as the case may be).
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|
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b.
|
Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus
shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any
Incorporated Document), (ii) the Company files an Annual Report on Form 10-K under the Exchange Act (including any Form 10-K/A
containing amended financial information or a material amendment to the previously filed Annual Report on Form 10-K); (iii) the
Company files a Quarterly Report on Form 10-Q under the Exchange Act; (iv) the Company files a Current Report on Form 8-K
(except as noted in the proviso at the end of this Section 6(b)); (v) there is a Principal Settlement Date pursuant to a Terms
Agreement, or (vi) the Agents shall reasonably request, provided that the Agents shall not make such a request during periods
that there is no proposed Agency Transaction pursuant to a delivery of a Transaction Proposal (each date referred to clauses (i) through
(vi) above, a “Bring-Down Delivery Date”), the Company shall, unless the Agents agree otherwise, furnish or cause
to be furnished to the Agents a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days
after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date,
delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i) hereof, modified
as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented
to the time of delivery of such certificate, or, in lieu of such certificate, a certificate to the effect that the statements contained
in the certificate referred to in Section 5(a)(i) hereof furnished to the Agents is true and correct as of such Bring-Down Delivery
Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus
or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however,
that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date under clause (i) above unless
either (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance is binding
and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating
to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or
any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through
and including the related Settlement Date and (y) the Agents have reasonably requested that such date be deemed to be a Bring-Down
Delivery Date based upon the event or events reported in such Current Report on Form 8-K; or (B) such Current Report on Form 8-K
contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including
any Current Report on Form 8-K or part thereof under Item 2.02 that is considered “filed” under the Exchange Act but,
for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 that is “furnished”;
and provided, further, that any Current Report on Form 8-K or amendment thereto filed in connection with any acquisition announced
prior to the date hereof will not constitute a Bring-Down Delivery Date; and provided, further, that an amendment or supplement
to the Registration Statement or the Prospectus relating to any offering of Shares of other securities pursuant to the Registration Statement
will not constitute a Bring-Down Delivery Date.
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c.
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On each Bring-Down Delivery Date, the Company shall, unless the Agents agree otherwise, cause to be furnished
to the Agents (i) the written opinion and, if not included in such opinion, negative assurance letter of Goodwin Procter LLP, counsel
to the Company, (ii) the written opinion and, if not included in such opinion, negative assurance letter of Yigal Arnon &
Co., counsel to the Company and (iii) the written opinion of Ehrlich & Fenster, counsel to the Company with respect to intellectual
property, in each case, in form and substance reasonably satisfactory to the Agents and their counsel and dated as of the applicable Bring-Down
Delivery Date and delivered within three Exchange Business Days after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down
Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as
the opinions and letters referred to in Sections 5(a)(ii) and (iii) hereof, but modified as necessary to relate to the Registration
Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions
and letters, or, in lieu of such opinions and letters, such counsel shall furnish the Agents with a letter substantially to the effect
that the Agents may rely on the opinion and letter of such counsel referred to in Sections 5(a)(ii) and (iii), furnished to the Agents,
to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion
and letter of such counsel shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus
as amended and supplemented to the time of delivery of such letters authorizing reliance).
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d.
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On each Bring-Down Delivery Date, the Company shall, unless the Agents agree otherwise, cause Brightman
Almagor Zohar & Co., member of Deloitte Touche Tohmatsu Limited to furnish to the Agents a comfort letter, dated as of the applicable
Bring-Down Delivery Date and delivered within three Exchange Business Days after the applicable Bring-Down Delivery Date or, in the case
of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor
as the letter referred to in Section 5(a)(iv) hereof, but modified to relate to the Registration Statement, the Prospectus or
any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter, and, if the Registration Statement, the
Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or
business (other than the consolidated financial statements of the Company and its subsidiaries), the Company shall, if requested by the
Agents, cause a firm of independent public accountants to furnish to the Agents a comfort letter, dated as of the applicable Bring-Down
Delivery Date and delivered as promptly as practicable after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery
Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters as the Agents may
reasonably request.
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e.
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(i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no
proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or, to the knowledge of the Company,
threatened by the Commission; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission
under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests
by the Commission for additional information shall have been complied with to the satisfaction of the Agents and no suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes, shall have occurred and be in effect at the time the Company delivers a Transaction Proposal to the Designated Agent; and
(ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of
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 at the time the Company delivers a Transaction Proposal to the Designated
Agent.
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f.
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The Company shall reasonably cooperate with any reasonable due diligence review requested by the Agents
or their counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without
limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, providing information
and making available appropriate documents and appropriate corporate officers of the Company and, upon reasonable request, representatives
of Brightman Almagor Zohar & Co., member of Deloitte Touche Tohmatsu Limited (and, if the Registration Statement, the Prospectus
or any Permitted Free-Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business
(other than the consolidated financial statements of the Company and its subsidiaries), representatives of the independent registered
public accounting firm that audited or reviewed such financial statements) for an update on diligence matters with representatives of
the Agents and (ii) at each Bring-Down Delivery Date and otherwise as the Agents may reasonably request, providing information and
making available documents and appropriate corporate officers of the Company and representatives of Brightman Almagor Zohar &
Co., member of Deloitte Touche Tohmatsu Limited (and, if the Registration Statement, the Prospectus or any Permitted Free-Writing Prospectus
shall include or incorporate by reference the financial statements of any entity or business (other than the consolidated financial statements
of the Company and its subsidiaries), representatives of the independent registered public accounting firm that audited or reviewed such
financial statements) for one or more due diligence sessions with representatives of the Agents and their counsel.
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g.
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The Company shall disclose, in its Quarterly Reports on Form 10-Q and in its Annual Report on Form 10-K
to be filed by the Company with the Commission from time to time, the number of the Shares sold through the Agents under this Agreement
and any Terms Agreement, and the gross and net proceeds to the Company from any sale of Shares and the compensation paid by the Company
with respect to sales of the Shares pursuant to this Agreement during the relevant quarter or, in the case of an Annual Report on Form 10-K,
during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal year. To the extent that the filing of a prospectus
supplement with the Commission with respect to any sales of Shares becomes required under Rule 424(b) under the Act, the Company
agrees that, on or before such dates as the Act shall require, the Company will (i) file a prospectus supplement with the Commission
under the applicable paragraph of Rule 424(b) under the Act, which prospectus supplement will set forth, with regard to the
relevant period, the number of the Shares sold through the Agents under this Agreement and any Terms Agreement, and the gross and net
proceeds to the Company from any sale of Shares and the compensation paid by the Company with respect to sales of the Shares pursuant
to this Agreement, and (ii) deliver such number of copies of each such prospectus supplement to each exchange or market on which
such sales were effected as may be required by the rules or regulations of such exchange or market.
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All opinions, letters and other documents
referred to in Sections 6(b) through (d) above shall be reasonably satisfactory in form and substance to the Agents. The Agents
will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail as soon as reasonably practicable
thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections
6(b) through (d) above.
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7.
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Conditions of the Agents’ Obligation. The Agents’ obligation to solicit purchases on
an agency basis for the Shares or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares pursuant to
any Terms Agreement shall be subject to the satisfaction of the following conditions:
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a.
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At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase
Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms
Agreement, at the time of execution and delivery of the Terms Agreement by the Company and at the relevant Time of Sale and Principal
Settlement Date:
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(i)
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The representations, warranties and agreements on the part of the Company herein contained or contained
in any certificate of an officer or officers, general partner, managing member or other authorized representative of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof shall be true and correct in all respects.
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(ii)
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The Company shall have performed and observed its covenants and other obligations hereunder and/or under
any Terms Agreement, as the case may be, in all material respects.
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(iii)
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In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or,
in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by
the Company until the Principal Settlement Date, trading in the Common Stock on the Exchange shall not have been suspended.
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(iv)
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From the date of this Agreement, no event or condition of a type described in Section 3(n) hereof
shall have occurred or shall exist, which event or condition is not described in a Permitted Free Writing Prospectus (excluding any amendment
or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment
of the Agents makes it impracticable or inadvisable to proceed with any offering of Shares, sale or delivery of the Shares on the applicable
Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus
and the Prospectus.
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(v)
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Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to
execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or
preferred equity securities of or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical
rating organization” as such term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act; and (B) no
such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to,
its rating of any debt securities or preferred equity securities of or guaranteed by the Company or any of its subsidiaries (other than
an announcement with positive implications of a possible upgrading) in each case that has not been described in any Permitted Free Writing
Prospectus issued prior to any related Time of Sale.
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(vi)
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The Shares to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable,
shall have been approved for listing on the Exchange, subject only to notice of issuance.
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(vii)
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(A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted,
adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date,
prevent the issuance or sale of the Shares and (B) no injunction or order of any federal, state or foreign court shall have been
issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares.
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(viii)
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(A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding
for such purpose or pursuant to Section 8A of the Act shall be pending before or to the knowledge of the Company threatened by the
Commission and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under
the Act shall have been received by the Company; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely
filed with the Commission under the Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433
under the Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of
the Agents; and (D) no suspension of the qualification of the Shares for offering or sale in any jurisdiction, and no initiation
or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus
or any Permitted Free Writing Prospectus shall not contain an untrue statement of 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
at the time the Company delivers a Transaction Proposal to the Designated Agent or the Company and the Designated Agent execute a Terms
Agreement, as the case may be.
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(ix)
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No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing
Prospectus shall have been filed to which the Agents shall have reasonably objected in writing.
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(x)
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The Agents shall have received a letter from the Corporate Financing Department of FINRA confirming that
such department has determined to raise no objection with respect to the fairness or reasonableness of the terms and arrangements related
to the sale of the Placement Shares pursuant to this Agreement.
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b.
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Within three Exchange Business Days after the applicable Bring-Down Delivery Date or, in the case of a
Bring-Down Delivery Date resulting from a Principal Settlement Date, on such Principal Settlement Date, the Agents shall have received
the officer’s certificates, opinions and negative assurance letters of counsel, as applicable, and comfort letters and other documents
provided for under Sections 6(b) through (d), inclusive. For purposes of clarity and without limitation to any other provision of
this Section 7 or elsewhere in this Agreement, the parties hereto agree that the Agents’ obligations, if any, to solicit purchases
of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing
by the Agents, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that the Agents
shall have received the documents described in the preceding sentence.
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(i)
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The Company may terminate this Agreement in its sole discretion at any time by giving 10 days’ prior notice as hereinafter specified.
Any such termination shall be without liability of any party to any other party, except that (A) with respect to any pending sale,
the obligations of the Company, including in respect of compensation of the Agents, shall remain in full force and effect notwithstanding
such termination; and (B) the provisions of Section 4 (except that if no Shares have been previously sold hereunder or under
any Terms Agreement, only Section 4(s)), 9, 13, 14 and 16 of this Agreement shall remain in full force and effect notwithstanding
such termination.
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(ii)
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In the case of any sale by the Company pursuant to a Terms Agreement, the obligations of the Company pursuant
to such Terms Agreement and this Agreement may not be terminated by the Company without the prior written consent of the Agents.
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(i)
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Each Agent shall have the right, by giving notice as hereinafter specified, at any time to terminate its respective obligations under
Agreement if (i) any Material Adverse Effect, or any development that could reasonably be expected to result in a Material Adverse
Effect, has occurred that, in the judgment of the Agent, may materially impair the ability of the Agent to sell the Placement Shares hereunder,
(ii) the Company shall have failed, refused or been unable to perform any agreement on its part to be performed hereunder; provided,
however, in the case of any failure of the Company to deliver (or cause another person to deliver) any certification, opinion or letter
required under Section 6, the Agent’s right to terminate shall not arise unless such failure to deliver (or cause to be delivered)
continues for more than 15 calendar days from the date such delivery was required, (iii) any other condition of the Agent’s
obligations hereunder is not fulfilled, (iv) any suspension or limitation of trading in the Shares or in securities generally on
Nasdaq shall have occurred, (v) a general banking moratorium shall have been declared by any of United States federal or New York
authorities, or (vi) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis
or calamity, or any change in the United States or international financial markets, or any substantial change or development involving
a prospective substantial change in United States or international political, financial or economic conditions that, in the judgment of
the Agent, may materially impair the ability of the Agent to sell the Shares hereunder or to enforce contracts for the sale of securities.
Any such termination shall be without liability of any party to any other party except that the provisions of Section 4, 9, 14 and
16 hereof shall remain in full force and effect notwithstanding such termination. If an Agent elects to terminate its respective obligations
under this Agreement as provided in this Section 8(b)(i), such Agent shall provide the required notice as specified in Section 10.
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(ii)
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Each Agent shall have the right, by giving 10 days’ prior notice as hereinafter specified, to terminate
its respective obligations under this Agreement in its respective sole discretion at any time after the date of this Agreement. Any such
termination shall be without liability of any party to any other party, except that the provisions of Section 4 (except that if no
Shares have been previously sold hereunder or under any Terms Agreement, only Section 4(s)), 9, 14 and 16 of this Agreement shall
remain in full force and effect notwithstanding such termination.
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(iii)
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In the case of any purchase by an Agent pursuant to a Terms Agreement, the obligations of such Agent pursuant
to such Terms Agreement shall be subject to termination by such Agent at any time prior to or at the Principal Settlement Date if since
the time of execution of the Terms Agreement or the respective dates as of which information is given in the Registration Statement, the
Prospectus or any Permitted Free Writing Prospectus, (A) trading generally shall have been suspended or materially limited on or
by Nasdaq; (B) trading of any securities issued by the Company shall have been suspended on any exchange or in any over-the counter
market; (C) a general moratorium on commercial banking activities shall have been declared by federal or New York state authorities;
or (D) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or
crisis, either within or outside the United States, that, solely in the case of events and conditions described in this clause (D), in
the Agent’s reasonable judgment, is material and adverse and makes it impracticable or inadvisable to proceed with any offering
of Shares, sale or delivery of the Shares on the terms and in the manner contemplated in the Prospectus or such Terms Agreement. If an
Agent elects to terminate its obligations pursuant to this Section 8(b)(ii), then the Company shall be notified promptly in writing.
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c.
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This Agreement shall remain in full force and effect until the earliest of (A) termination of the
Agreement pursuant to Section 8(a) or 8(b) above or otherwise by mutual written agreement of the parties and (B) such
date that the Maximum Amount of Shares has been sold in accordance with the terms of this Agreement and any Terms Agreements, in each
case except that the provisions of Section 4 (except that if no Shares have been previously sold hereunder or under any Terms Agreement,
only Section 4(s)), 9, 13, 14 and 16 of this Agreement shall remain in full force and effect notwithstanding such termination.
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d.
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Any termination of this Agreement shall be effective on the date specified in such notice of termination;
provided that, notwithstanding the foregoing, such termination shall not be effective until the close of business on the date of
receipt of such notice by the Agents or the Company, as the case may be, or such later date as may be required pursuant to Section 8(a) or
(b). If such termination shall occur prior to the Settlement Date for any sale of Shares, such sale shall settle in accordance with the
provisions of Section 2 hereof.
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9.
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Indemnity and Contribution.
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a.
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The Company agrees to indemnify and hold harmless the Agents, their respective affiliates, their respective
partners, members, directors, officers, employees and agents, and each person, if any, who (i) controls such Agent within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with such
Agent, in each case, from and against any and all losses, claims, damages, expenses and liabilities (including any and all reasonable
and documented investigative, legal and other expenses reasonably incurred in connection with, and any and all amounts paid in settlement
(in accordance with this Section 9), any action, suit, investigation or proceeding between any of the indemnified parties and any
indemnifying parties or between any indemnified party and any third party (including any governmental or self-regulatory authority, or
otherwise, or any claim asserted or threatened), as and when incurred, to which such Agent, or any such other person may become subject
under the Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise) that arise out of,
or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto) or caused by any omission or alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, not misleading or (ii) any untrue statement or alleged untrue statement of
a material fact contained in the Prospectus (or any amendment or supplement thereto), or any Permitted Free Writing Prospectus (or any
amendment or supplement thereto), or caused by any omission or alleged omission to state therein a material fact necessary in order to
make the statements therein, in light of the circumstances under which they were made, not misleading, in each case except insofar as
such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with any information relating to the Agents furnished to the Company in writing by
the Agents expressly for use therein, it being understood and agreed that the only such information furnished by the Agents consists of
the information described as such in subsection (b) below.
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b.
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The Agents agree to indemnify and hold harmless the Company, its directors, its officers who signed the Registration Statement and
each person, if any, who (i) controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act or (ii) is controlled by or is under common control with the Company to the same extent as the indemnity set forth in paragraph
(a) above, but only with respect to any losses, claims, damages, expenses or liabilities that arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating
to the Agents furnished to the Company in writing by the Agents expressly for use in the Registration Statement (or any amendment thereto),
the Prospectus (or any amendment or supplement thereto) or any Permitted Free Writing Prospectus (or any amendment or supplement thereto),
it being understood and agreed upon that only such information furnished by the Agents as of the date of this Agreement consists of the
information in the Prospectus as specified in Exhibit D hereto.
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c.
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If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand
shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either Section 9(a) or
9(b) above, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification
may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person
shall not relieve it from any liability that it may have under this Section 9 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under this Section 9.
If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof,
the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of
the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 9 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such
counsel related to 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 counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed in writing 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 any such proceeding (including any impleaded parties) included both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding
or related proceeding in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm (in addition
to any local counsel) for (A) the Agents and their affiliates and their directors and officers and their control persons, if any,
or (B) the Company and its directors, its officers who signed the Registration Statement and its control persons, if any, as the
case may be, and that all such reasonable fees and expenses shall be paid or reimbursed as they are incurred. Any such separate firm for
the Agents and their affiliates, directors and officers and their control persons, if any, shall be designated in writing by the Agents,
and any such separate firm for the Company, its directors, its officers who signed the Registration Statement and its control persons,
if any, 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 a 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. No
Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding
in respect of which any Indemnified Person is or could have been a party and indemnification is or 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 on 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 any Indemnified Person.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by this Section 9(c), the Indemnifying Person agrees that
it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into
more than 45 days after receipt by such Indemnifying Person of the aforesaid request, (ii) such Indemnifying Person shall have received
notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement, unless such failure
to reimburse the Indemnified Person is based on a dispute with a good faith basis as to the obligation of the Indemnifying Person arising
under this Section 9 to indemnify the Indemnified Person, and the Indemnifying Person shall have notified the Indemnified Person
of such good faith dispute prior to the date of such settlement.
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d.
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If the indemnification provided for in Sections 9(a) and 9(b) above is unavailable to an Indemnified
Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under
such Sections, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Agents, on the other, from any offering of Shares pursuant to this Agreement
and any Terms Agreements; or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company,
on the one hand, and the Agents, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand,
and the Agents, on the other, shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses)
received by the Company from any sale of Shares pursuant to this Agreement and any Terms Agreements and the total discounts and commissions
received by the Agents in connection therewith bear to the aggregate Gross Sales Price of such Shares. The relative fault of the Company,
on the one hand, and the Agents, on the other, 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 by the Agents, on the other hand, and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
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e.
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The Company and the Agents agree that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable
considerations referred to in Section 9(d) above. The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in Section 9(d) above shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding
the provisions of this Section 9, in no event shall an Agent be required to contribute any amount in excess of the amount by which
the total discounts and commissions received by such Agent with respect to any offering of Shares pursuant to this Agreement and any Terms
Agreements exceeds the amount of any damages that such Agent 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.
|
|
|
f.
|
The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies
that may otherwise be available to any Indemnified Person at law or in equity.
|
|
|
10.
|
Notices. All notices and other communications under this Agreement and any Terms Agreement shall
be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of communication
to:
|
|
|
SVB Leerink LLC
|
|
|
1301 Avenue of the Americas, 12th Floor
|
|
|
New York, New York 10019
|
|
|
Attention: Peter M. Fry
|
|
|
E-mail: peter.fry@svbleerink.com
|
|
|
|
|
|
and
|
|
|
|
|
|
Raymond James & Associates, Inc.
|
|
|
277 Park Avenue, Suite 410
|
|
|
New York, New York 10172
|
|
|
Attention: Stuart Barich and Tom Donegan
|
|
|
Fax no. (212) 314-0444
|
|
|
E-mail: stuart.barich@raymondjames.com
and tom.donegan@raymondjames.com
|
|
|
|
|
|
with a copy (which shall not constitute notice) to:
|
|
|
|
|
|
SVB Leerink LLC
|
|
|
1301 Avenue of the Americas, 12th Floor
|
|
|
New York, New York 10019
|
|
|
Attention: Stuart R. Nayman, Esq.
|
|
|
E-mail: stuart.nayman@svbleerink.com
|
|
|
|
|
|
and
|
|
|
|
|
|
Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C.
|
|
|
666 Third Avenue
|
|
|
New York, New York 10017
|
|
|
Attention: John Rudy, Esq. and
Ivan Blumenthal, Esq.
|
|
|
E-mail: jrudy@mintz.com
and ikblumenthal@mintz.com
|
and
if to the Company, to Brainstorm Cell Therapeutics Inc., 1325 Avenue of the Americas, 28th Floor, New York, New York 10019, Attn: Chief
Executive Officer (email: CLebovits@brainstorm-cell.com); and with a copy (which shall not constitute notice) to Goodwin
Procter LLP, 100 Northern Avenue, Boston, Massachusetts 02210, Attn: Jesse Nevarez, Esq. (email: jnevarez@goodwinlaw.com).
|
|
11.
|
No Fiduciary Relationship. The Company acknowledges and agrees that the Agents are acting solely
in the capacity of arm’s length contractual counterparties to the Company with respect to any offering of Shares of Shares contemplated
hereby and any Terms Agreements (including in connection with determining the terms of any offering of Shares) and not as a financial
advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, the Agents are not advising the Company or any
other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its
own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Agents shall not have any responsibility or liability to the Company with respect thereto. Any review by
the Agents of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely
for the benefit of the Agents and shall not be on behalf of the Company.
|
|
|
12.
|
Adjustments for Stock Splits. The parties acknowledge and agree that all share related numbers
contained in this Agreement, any Transaction Proposal and any Transaction Acceptance shall be adjusted to take into account any stock
split effected with respect to the Shares.
|
|
|
13.
|
Governing Law; Construction.
|
|
|
a.
|
This Agreement, any Terms Agreement and any claim, counterclaim or dispute of any kind or nature whatsoever
arising out of or in any way relating to this Agreement or any Terms Agreement, directly or indirectly, shall be governed by, and construed
in accordance with, the laws of the State of New York.
|
|
|
b.
|
The Section headings in this Agreement and any Terms Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement or any Terms Agreement.
|
|
|
14.
|
Persons Entitled to Benefit of Agreement. This Agreement and any Terms Agreement shall inure to
the benefit of and be binding upon the parties hereto and thereto, respectively, and their respective successors and the officers, directors,
affiliates and controlling persons referred to in Section 9 hereof. Nothing in this Agreement or any Terms Agreement is intended
or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or
any such Terms Agreement or any provision contained herein or therein. No purchaser of Shares from or through the Agents shall be deemed
to be a successor merely by reason of purchase.
|
|
|
15.
|
Counterparts. This Agreement and any Terms Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall
constitute one and the same instrument.
|
|
|
16.
|
Survival. The respective indemnities, rights of contribution, representations, warranties and agreements
of the Company and the Agents contained in this Agreement or any Terms Agreement or made by or on behalf of the Company or the Agents
pursuant to this Agreement or any Terms Agreement or any certificate delivered pursuant hereto or thereto shall survive the delivery of
and payment for the Shares and shall remain in full force and effect, regardless of any termination of this Agreement or any Terms Agreement
or any investigation made by or on behalf of the Company or the Agents.
|
|
|
17.
|
Certain Defined Terms. For purposes of this Agreement, except where otherwise expressly provided,
the term “affiliate” has the meaning set forth in Rule 405 under Act; the term “business day” means any day
other than a day on which banks are permitted or required to be closed in New York City; and the term “subsidiary” has the
meaning set forth in Rule 405 under the Act.
|
|
|
18.
|
Amendments or Waivers. No amendment or waiver of any provision of this Agreement or any Terms Agreement,
nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed
by the parties hereto or thereto as the case may be.
|
|
|
19.
|
Agents as Market Makers. The Agents and their affiliates may make markets in the Common Stock or
other securities of the Company, in connection with which they may buy and sell, as agent or principal, for long or short account, shares
of Common Stock or other securities of the Company at the same time that the Agents are acting as agents pursuant to this Agreement; provided
that the Agents acknowledge and agree that any such transactions are not being, and shall not be deemed to have been, undertaken at the
request or direction of, or for the account of, the Company and that the Company has and shall have no control over any decision by the
Agents and their affiliates to enter into any such transactions.
|
|
|
20.
|
Submission to Jurisdiction. Except as set forth herein, no claim may be commenced, prosecuted or
continued in any court other than the courts of the State of New York located in the City and County of New York or in the United States
District Court for the Southern District of New York, which courts shall have nonexclusive jurisdiction over the adjudication of such
matters, and the Company consents to the jurisdiction of such courts and personal service with respect thereto. Each Agent and the Company,
on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates, waives any right it may have
to trial by jury in any action, proceeding or counterclaim, whether based upon contract, tort or otherwise, in any way arising out of
or relating to this Agreement. Each Agent and the Company agrees that a final judgment in any such action, proceeding or counterclaim
brought in any such court shall be conclusive and binding upon the applicable Agent or the Company and may be enforced in any other courts
in the jurisdiction of which the Company is or may be subject, by suit upon such judgment.
|
|
|
21.
|
Headings. The headings herein are included for convenience of reference only and are not intended
to be part of, or to affect the meaning or interpretation of, this Agreement.
|
[Signature Page Follows]
If the foregoing is in accordance
with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
|
|
Very truly yours,
|
|
|
|
|
|
BRAINSTORM CELL THERAPEUTICS INC.
|
|
|
By:
|
/s/ Chaim Lebovits
|
|
|
Name:
|
Chaim Lebovits
|
|
|
Title:
|
Chief Executive Officer
|
|
Accepted and agreed to as of the date
first above written:
|
|
|
|
|
|
SVB LEERINK LLC
|
|
|
By:
|
/s/ Peter M. Fry
|
|
|
Name:
|
Peter M. Fry
|
|
|
Title:
|
Managing Director, Head of Alternative Equities
|
|
|
RAYMOND JAMES & ASSOCIATES, INC.
|
|
|
By:
|
/s/ Jeanna Bryan
|
|
|
Name:
|
Jeanna Bryan
|
|
|
Title:
|
Managing Director, Head Trader
|
|
[Signature Page to Distribution
Agreement]
EXHIBIT A
TERMS AGREEMENT
BRAINSTORM CELL THERAPEUTICS INC.
__________________________, 20__
[SVB Leerink LLC
1301 Avenue of the Americas, 12th Floor
New York, New York 10019]
[Raymond James & Associates, Inc.
277 Park Avenue, Suite 410
New York, New York 10172]
Ladies and Gentlemen:
Brainstorm Cell Therapeutics
Inc., a Delaware corporation (the “Company”), proposes, subject to the terms and conditions stated herein and in the
Distribution Agreement dated August 9, 2021 (the “Agreement”) among the Company and SVB Leerink LLC (“SVB
Leerink”) and Raymond James & Associates, Inc. (“Raymond James”) (each of SVB Leerink and Raymond
James, an “Agent” and together, the “Agents”) to issue and sell to [SVB Leerink][Raymond James]
the securities specified in the Schedule hereto (the “Purchased Securities”). Unless otherwise defined below, terms
defined in the Agreement shall have the same meanings when used herein.
Each of the provisions of
the Agreement not specifically related to the solicitation by the Agents, as agents of the Company, of offers to purchase securities is
incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein. Each of the representations, warranties and agreements set forth therein shall be deemed
to have been made as of the date of this Terms Agreement and the Settlement Date set forth in the Schedule hereto.
An amendment to the Registration
Statement or a supplement to the Prospectus, as the case may be, relating to the Purchased Securities, in the form heretofore delivered
to the Agents, is now proposed to be filed with the Securities and Exchange Commission.
Subject to the terms and conditions
set forth herein and in the Agreement which are incorporated herein by reference, the Company agrees to issue and sell to [SVB Leerink][Raymond
James], and the latter agrees to purchase from the Company, the Purchased Securities at the time and place and at the purchase price set
forth in the Schedule hereto.
Notwithstanding any provision
of the Agreement or this Terms Agreement to the contrary, the Company consents to [SVB Leerink][Raymond James] trading in the Common Stock
for [SVB Leerink’s][Raymond James’] own account and for the account of its clients at the same time as sales of the Purchased
Securities occur pursuant to this Terms Agreement.
[Signature Page Follows]
If the foregoing is in accordance
with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement, including those provisions
of the Agreement incorporated herein by reference, shall constitute a binding agreement between the Agents and the Company.
|
|
BRAINSTORM CELL THERAPEUTICS INC.
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
|
Accepted and agreed to as of the date first above written:
|
|
|
|
|
|
[SVB LEERINK LLC][ RAYMOND JAMES & ASSOCIATES, INC.]
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
|
Schedule to Terms Agreement
Title of Purchased Securities:
Common Stock, par value $0.00005 per share
Number of Shares of Purchased Securities:
[ ] shares
Initial Price to Public:
$[ ] per share
Purchase Price Payable by [SVB Leerink][Raymond James]:
$[ ] per share
Method of and Specified Funds for Payment of Purchase Price:
[By wire transfer to a bank account specified by the Company
in same day funds.]
Method of Delivery:
[To [SVB Leerink’s][Raymond James’] account, or
the account of [SVB Leerink’s][Raymond James’] designee, at The Depository Trust
Company via DWAC in return for payment of the purchase price.]
Settlement Date:
[ ], 20__
Closing Location:
[ ]
Documents to be Delivered:
The following documents referred to in the Agreement shall be delivered
on the Settlement Date as a condition to the closing for the Purchased Securities (which documents shall be dated on or as of the Settlement
Date and shall be appropriately updated to cover any Permitted Free Writing Prospectuses and any amendments or supplements to the Registration
Statement, the Prospectus, any Permitted Free Writing Prospectuses and any documents incorporated by reference therein):
|
|
(1)
|
the officers’ certificate referred to in Section 5(a)(i);
|
|
|
(2)
|
the opinion and negative assurance letter of the Company’s outside counsels referred to in Section 5(a)(ii);
|
|
|
(3)
|
the opinion of special counsel for the Company with respect to intellectual property referred to in Section 5(a)(iii);
|
|
|
(4)
|
the comfort letter referred to in Section 5(a)(iv);
|
|
|
(5)
|
the evidence that the Shares have been approved for listing on the Exchange referred to in Section 5(a)(v);
|
|
|
(6)
|
the evidence that the registration statement remains effective referred to in Section 5(a)(vi);
|
|
|
(7)
|
the officer’s certificate referred to in Section 5(a)(vii);
|
|
|
(8)
|
such other documents as [SVB Leerink][Raymond James] shall reasonably request referred to in Section 5(a)(viii); and
|
|
|
(9)
|
the opinion and negative assurance letter referred to in Section 5(b);
|
Time of sale: [ ] [a.m./p.m.] (New York City time) on [ ],[ ]
Time of sale information:
|
|
·
|
The number of shares of Purchased Securities set forth above
|
|
|
·
|
The initial price to public set forth above
|
|
|
·
|
[Other]
|
EXHIBIT B
OFFICERS’ CERTIFICATE
Dated ____________, 20__
We, [name], [title] of Brainstorm
Cell Therapeutics Inc., a Delaware corporation (the “Company”), do hereby certify that this certificate is being delivered
by us pursuant to Section 5(a)(i) of the Distribution Agreement dated August 9, 2021 among the Company, SVB Leerink LC
and Raymond James & Associates, Inc. (the “Agreement”), and do hereby further certify on behalf of the
Company as follows:
1. The
representations and warranties of the Company in the Agreement are true and correct in all material respects on and as of the date hereof
as though made on and as of this date;
2. The
Company has performed all obligations and satisfied all conditions on its respective part to be performed or satisfied by it pursuant
to the Agreement on or prior to the date hereof;
3. The
Company’s Registration Statement and any post-effective amendments thereto have become effective under the Act; the Registration
Statement complies in all material respects with the requirements of the Act and does not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; the
Prospectus complies in all material respects with the requirements of the Act and does not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; no event has occurred as a result of which it is necessary to amend or supplement
the Registration Statement or the Prospectus in order to make the statements therein not untrue or misleading; no stop order suspending
the effectiveness of such Registration Statement has been issued and no proceeding for that purpose or pursuant to Section 8A of
the Act has been initiated or, to the knowledge of the undersigned, threatened by the Commission; no notice of objection of the Commission
to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; and all
requests for additional information on the part of the Commission have been complied with;
4. Since
the respective dates as of which information is given in the Registration Statement, the Prospectus and any Permitted Free Writing Prospectus,
except as otherwise stated therein, there has not been any material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties, management, financial position, stockholders’ equity or results of operations
of the Company and its subsidiaries taken as a whole;
5. The
Company does not possess any material non-public information; and
6. The
maximum amount of Shares that may be sold pursuant to the Agreement has been duly authorized by the Company’s board of directors
or a duly authorized committee thereof pursuant to a resolution or unanimous written consent in accordance with the Company’s certificate
of incorporation, bylaws and applicable law.
All capitalized terms used herein and not otherwise
defined shall have the respective meanings assigned to them in the Agreement.
[Signature Page Follows]
|
|
BRAINSTORM CELL THERAPEUTICS INC.
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
EXHIBIT C
PERMITTED FREE WRITING PROSPECTUSES
None.
EXHIBIT D
INFORMATION SUPPLIED BY THE AGENT
The legal name of of SVB Leerink is SVB Leerink LLC and the legal name
of Raymond James is Raymond James & Associates, Inc.
The Company will pay the Agents a commission equal to 3.0% of the gross
sales price of any Shares sold through them as agents. The remaining sales proceeds, after deducting any transaction fees, transaction
taxes or similar taxes or fees imposed by any governmental, regulatory or self-regulatory organization in respect of the sale of the applicable
Shares, will equal the net proceeds for any sale of Shares.
Exhibit 4.2
BRAINSTORM CELL THERAPEUTICS INC.,
Issuer
AND
[TRUSTEE],
Trustee
INDENTURE
Dated as of [●], 202[●]
Senior Debt Securities
TABLE OF CONTENTS1
Page
|
ARTICLE 1
|
DEFINITIONS
|
1
|
|
|
|
|
|
|
|
Section 1.01
|
|
Definitions of Terms.
|
1
|
|
|
|
|
|
|
|
ARTICLE 2
|
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
|
4
|
|
|
|
|
|
|
|
Section 2.01
|
|
Designation and Terms of Securities.
|
4
|
|
Section 2.02
|
|
Form of Securities and Trustee’s
Certificate.
|
6
|
|
Section 2.03
|
|
Denominations: Provisions for
Payment.
|
6
|
|
Section 2.04
|
|
Execution and Authentications.
|
7
|
|
Section 2.05
|
|
Registration of Transfer and
Exchange.
|
8
|
|
Section 2.06
|
|
Temporary Securities.
|
9
|
|
Section 2.07
|
|
Mutilated, Destroyed, Lost or
Stolen Securities.
|
9
|
|
Section 2.08
|
|
Cancellation.
|
10
|
|
Section 2.09
|
|
Benefits of Indenture.
|
10
|
|
Section 2.10
|
|
Authenticating Agent.
|
10
|
|
Section 2.11
|
|
Global Securities.
|
11
|
|
|
|
|
|
|
|
ARTICLE 3
|
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
|
11
|
|
|
|
|
|
|
|
Section 3.01
|
|
Redemption.
|
11
|
|
Section 3.02
|
|
Notice of Redemption.
|
11
|
|
Section 3.03
|
|
Payment Upon Redemption.
|
12
|
|
Section 3.04
|
|
Sinking Fund.
|
13
|
|
Section 3.05
|
|
Satisfaction of Sinking Fund
Payments with Securities.
|
13
|
|
Section 3.06
|
|
Redemption of Securities for
Sinking Fund.
|
13
|
|
|
|
|
|
|
|
ARTICLE 4
|
COVENANTS
|
13
|
|
|
|
|
|
|
|
Section 4.01
|
|
Payment of Principal, Premium
and Interest.
|
13
|
|
Section 4.02
|
|
Maintenance of Office or Agency.
|
14
|
|
Section 4.03
|
|
Paying Agents.
|
14
|
|
Section 4.04
|
|
Appointment to Fill Vacancy
in Office of Trustee.
|
15
|
|
Section 4.05
|
|
Compliance with Consolidation
Provisions.
|
15
|
|
|
|
|
|
|
ARTICLE 5
|
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
|
15
|
|
|
|
|
|
|
|
Section 5.01
|
|
Company to Furnish Trustee Names
and Addresses of Securityholders.
|
15
|
|
Section 5.02
|
|
Preservation Of Information;
Communications With Securityholders.
|
15
|
|
Section 5.03
|
|
Reports by the Company.
|
16
|
|
Section 5.04
|
|
Reports by the Trustee.
|
16
|
|
|
|
|
|
|
|
ARTICLE 6
|
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
|
16
|
|
|
|
|
|
|
|
Section 6.01
|
|
Events of Default.
|
16
|
|
Section 6.02
|
|
Collection of Indebtedness and
Suits for Enforcement by Trustee.
|
18
|
|
Section 6.03
|
|
Application of Moneys Collected.
|
19
|
|
Section 6.04
|
|
Limitation on Suits.
|
19
|
|
Section 6.05
|
|
Rights and Remedies Cumulative;
Delay or Omission Not Waiver.
|
19
|
|
Section 6.06
|
|
Control by Securityholders.
|
20
|
|
Section 6.07
|
|
Undertaking to Pay Costs.
|
20
|
|
|
|
|
|
|
1 This Table of Contents does not constitute part of the Indenture and shall not
have any bearing on the interpretation of any of its terms or provisions.
Table of Contents
(continued)
|
|
|
Page
|
|
|
|
|
|
ARTICLE 7
|
CONCERNING THE TRUSTEE
|
20
|
|
|
|
|
|
|
|
Section 7.01
|
|
Certain Duties and Responsibilities
of Trustee.
|
20
|
|
Section 7.02
|
|
Certain Rights of Trustee.
|
21
|
|
Section 7.03
|
|
Trustee Not Responsible for
Recitals or Issuance or Securities.
|
22
|
|
Section 7.04
|
|
May Hold Securities.
|
23
|
|
Section 7.05
|
|
Moneys Held in Trust.
|
23
|
|
Section 7.06
|
|
Compensation and Reimbursement.
|
23
|
|
Section 7.07
|
|
Reliance on Officer’s
Certificate or Opinion of Counsel.
|
24
|
|
Section 7.08
|
|
Disqualification; Conflicting
Interests.
|
24
|
|
Section 7.09
|
|
Corporate Trustee Required;
Eligibility.
|
24
|
|
Section 7.10
|
|
Resignation and Removal; Appointment
of Successor.
|
24
|
|
Section 7.11
|
|
Acceptance of Appointment By
Successor.
|
25
|
|
Section 7.12
|
|
Merger, Conversion, Consolidation
or Succession to Business.
|
26
|
|
Section 7.13
|
|
Preferential Collection of Claims
Against the Company.
|
26
|
|
Section 7.14
|
|
Notice of Default.
|
26
|
|
|
|
|
|
|
|
ARTICLE 8
|
CONCERNING THE SECURITYHOLDERS
|
27
|
|
|
|
|
|
|
|
Section 8.01
|
|
Evidence of Action by Securityholders.
|
27
|
|
Section 8.02
|
|
Proof of Execution by Securityholders.
|
27
|
|
Section 8.03
|
|
Who May be Deemed Owners.
|
27
|
|
Section 8.04
|
|
Certain Securities Owned by
Company Disregarded.
|
27
|
|
Section 8.05
|
|
Actions Binding on Future Securityholders.
|
28
|
|
|
|
|
|
|
|
ARTICLE 9
|
SUPPLEMENTAL INDENTURES
|
28
|
|
|
|
|
|
|
|
Section 9.01
|
|
Supplemental Indentures Without
the Consent of Securityholders.
|
28
|
|
Section 9.02
|
|
Supplemental Indentures With
Consent of Securityholders.
|
29
|
|
Section 9.03
|
|
Effect of Supplemental Indentures.
|
29
|
|
Section 9.04
|
|
Securities Affected by Supplemental
Indentures.
|
29
|
|
Section 9.05
|
|
Execution of Supplemental Indentures.
|
30
|
|
|
|
|
|
|
|
ARTICLE 10
|
SUCCESSOR ENTITY
|
30
|
|
|
|
|
|
|
|
Section 10.01
|
|
Company May Consolidate, Etc.
|
30
|
|
Section 10.02
|
|
Successor Entity Substituted.
|
30
|
|
|
|
|
|
|
|
ARTICLE 11
|
SATISFACTION AND DISCHARGE
|
31
|
|
|
|
|
|
|
|
Section 11.01
|
|
Satisfaction and Discharge of
Indenture.
|
31
|
|
Section 11.02
|
|
Discharge of Obligations.
|
31
|
|
Section 11.03
|
|
Deposited Moneys to be Held
in Trust.
|
32
|
|
Section 11.04
|
|
Payment of Moneys Held by Paying
Agents.
|
32
|
|
Section 11.05
|
|
Repayment to Company.
|
32
|
|
|
|
|
|
|
|
ARTICLE 12
|
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
|
32
|
|
|
|
|
|
|
|
Section 12.01
|
|
No Recourse.
|
32
|
|
|
|
|
|
|
|
ARTICLE 13
|
MISCELLANEOUS PROVISIONS
|
32
|
|
|
|
|
|
|
|
Section 13.01
|
|
Effect on Successors and Assigns.
|
32
|
|
Section 13.02
|
|
Actions by Successor.
|
33
|
|
Section 13.03
|
|
Surrender of Company Powers.
|
33
|
|
Section 13.04
|
|
Notices.
|
33
|
|
Section 13.05
|
|
Governing Law; Jury Trial Waiver.
|
33
|
|
Section 13.06
|
|
Treatment of Securities as Debt.
|
33
|
|
|
|
|
|
Table of Contents
(continued)
Page
|
Section 13.07
|
|
Certificates and Opinions as to Conditions Precedent.
|
33
|
|
Section 13.08
|
|
Payments on Business Days.
|
34
|
|
Section 13.09
|
|
Conflict with Trust Indenture Act.
|
34
|
|
Section 13.10
|
|
Counterparts.
|
34
|
|
Section 13.11
|
|
Separability.
|
34
|
|
Section 13.12
|
|
Compliance Certificates.
|
34
|
|
Section 13.13
|
|
USA PATRIOT ACT.
|
34
|
|
Section 13.14
|
|
Calculations.
|
35
|
INDENTURE
INDENTURE, dated as
of [●], 202[●], among BRAINSTORM CELL THERAPEUTICS INC., a Delaware corporation (the “Company”),
and [TRUSTEE] as trustee (the “Trustee”):
WHEREAS, for its lawful
corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of debt securities
(hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued from time to
time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated by the certificate
of the Trustee;
WHEREAS, to provide
the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all things
necessary to make this Indenture a valid and binding agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in
consideration of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows
for the equal and ratable benefit of the holders of Securities:
ARTICLE
1
DEFINITIONS
Section
1.01 Definitions of Terms.
The terms defined in this
Section (except as in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in
this Section and shall include the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein
or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned
to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution of this instrument.
“Authenticating
Agent” means an authenticating agent with respect to all or any of the series of Securities appointed by the Trustee pursuant
to Section 2.10.
“Bankruptcy Law”
means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board of Directors”
means the Board of Directors (or the functional equivalent thereof) of the Company or any duly authorized committee of such Board.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such certification and delivered to the Trustee.
“Business Day”
means, with respect to any series of Securities, any day other than a day on which federal or state banking institutions in the Borough
of Manhattan, the City of New York, or at a place of payment, are authorized or obligated by law, executive order or regulation to close.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Company”
means Brainstorm Cell Therapeutics Inc., a corporation duly organized and existing under the laws of the State of Delaware, and, subject
to the provisions of Article 10, shall also include its successors and assigns.
“Company Order”
means a written order of the Company, signed by an Officer of the Company, and delivered to the Trustee.
“Corporate Trust
Office” means the office of the Trustee at which, at any particular time, its corporate trust business shall be administered,
which office at the date hereof is located at.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Defaulted Interest”
has the meaning set forth in Section 2.03.
“Depositary”
means, with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, another clearing agency, or any successor registered as a clearing agency under the Exchange Act,
or other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01
or 2.11.
“Event of Default”
means, with respect to Securities of a particular series, any event specified in Section 6.01, continued for the period of time,
if any, therein designated.
“Exchange Act”
means the United States Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Commission thereunder.
“Global Security”
means a Security issued to evidence all or a part of any series of Securities which is executed by the Company and authenticated and delivered
by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all in accordance with the Indenture, which shall
be registered in the name of the Depositary or its nominee.
“Governmental Obligations”
means securities that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is
pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America that,
in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated maturity of the applicable
series of Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian for
the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation
evidenced by such depositary receipt.
“herein”,
“hereof” and “hereunder”, and other words of similar import, refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof and shall include the terms of particular series of Securities established as
contemplated by Section 2.01.
“Interest Payment
Date”, when used with respect to any installment of interest on a Security of a particular series, means the date specified
in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which
an installment of interest with respect to Securities of that series is due and payable.
“Officer”
means, with respect to the Company, the Chairman of the Board of Directors, a Chief Executive Officer, a President, a Chief Financial
Officer, a Chief Operating Officer, any Executive Vice President, any Senior Vice President, any Vice President, the Treasurer or any
Assistant Treasurer, the Controller or any Assistant Controller or the Secretary or any Assistant Secretary.
“Officer’s
Certificate” means a certificate signed by any Officer. Each such certificate shall include the statements provided for in Section
13.07, if and to the extent required by the provisions thereof.
“Opinion of Counsel”
means an opinion in writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company, that
is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section
13.07, if and to the extent required by the provisions thereof.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time,
all Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore
canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously
been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside
and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if such
Securities or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been
given as provided in Article 3, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities
in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section
2.07.
“Person”
means any individual, corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated
organization, any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor Security”
of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible Officer”
when used with respect to the Trustee means any officer within the corporate trust department of the Trustee, including any vice president,
assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate
trust matter relating to this Indenture is referred because of such person’s knowledge of and familiarity with the particular subject
and, in each case, who shall have direct responsibility for the administration of this Indenture (which, for the avoidance of doubt, includes
without limitation any supplemental indenture hereto).
“Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under
this Indenture.
“Securityholder”,
“holder”, “registered holder”, or other similar term, means the Person or Persons in whose name
or names a particular Security is registered on the Security Register kept for that purpose in accordance with the terms of this Indenture.
“Security Register”
and “Security Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary”
means, with respect to any Person:
(1) any
corporation or company a majority of whose capital stock with voting power, under ordinary circumstances, to elect directors is, at the
date of determination, directly or indirectly, owned by such Person (a “subsidiary”), by one or more subsidiaries of
such Person or by such Person and one or more subsidiaries of such Person;
(2) a
partnership in which such Person or a subsidiary of such Person is, at the date of determination, a general partner of such partnership;
or
(3) any
partnership, limited liability company or other Person in which such Person, a subsidiary of such Person or such Person and one or more
subsidiaries of such Person, directly or indirectly, at the date of determination, have (x) at least a majority ownership interest or
(y) the power to elect or appoint or direct the election or appointment of the managing partner or member of such Person or, if applicable,
a majority of the directors or other governing body of such Person.
“Trustee”
means , and, subject to the provisions of Article 7, shall also include its successors and assigns, and, if at any time there is
more than one Person acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee”
as used with respect to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture
Act” means the Trust Indenture Act of 1939, as amended and in effect from time to time.
“U.S. dollar”
or “$” means the lawful currency of the United States of America.
ARTICLE
2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section
2.01 Designation and Terms of Securities.
(a) The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time
authorized by or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance
of Securities of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate
or established in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of that series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of that series);
(3) the date or dates on which the principal of the Securities of the series is payable;
(4) if the price (expressed as a percentage of the aggregate principal amount thereof) at which such Securities will be issued
is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration
of the maturity thereof, or if applicable, the portion of the principal amount of such Securities that is convertible into another security
or the method by which any such portion shall be determined;
(5) the rate or rates at which the Securities of the series shall bear interest or the manner of calculation of such rate or
rates, if any;
(6) the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest will be payable
or the manner of determination of such Interest Payment Dates, the place(s) of payment, and the record date for the determination of holders
to whom interest is payable on any such Interest Payment Dates or the manner of determination of such record dates;
(7) the right, if any, to extend the interest payment periods and the duration of such extension;
(8) the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the
series may be redeemed, converted or exchanged, in whole or in part;
(9) the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund, mandatory
redemption, or analogous provisions (including payments made in cash in satisfaction of future sinking fund obligations) or at the option
of a holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon which, Securities
of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(10) the form of the Securities of the series including the form of the Certificate of Authentication for such series;
(11) if other than minimum denominations of one thousand U.S. dollars ($1,000) or any integral multiple of $1,000 thereof, the
denominations in which the Securities of the series shall be issuable;
(12) any and all other terms (including terms, to the extent applicable, relating to any auction or remarketing of the Securities
of that series and any security for the obligations of the Company with respect to such Securities) with respect to such series (which
terms shall not be inconsistent with the terms of this Indenture, as amended by any supplemental indenture) including any terms which
may be required by or advisable under United States laws or regulations or advisable in connection with the marketing of Securities of
that series;
(13) whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities;
the terms and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual
Securities; and the Depositary for such Global Security or Securities;
(14) whether the Securities will be convertible into or exchangeable for shares of common stock, preferred stock or other securities
of the Company or any other Person and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable,
including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional
(at the Company’s option or the holders’ option) conversion or exchange features, and the applicable conversion or exchange
period;
(15) if other than the full principal amount thereof, the portion of the principal amount of Securities of the series which shall
be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(16) any additional or alternative Events of Default;
(17) additional or alternative covenants (which may include, among other restrictions, restrictions on the Company’s ability
or the ability of the Company’s Subsidiaries to: incur additional indebtedness; issue additional securities; create liens; pay dividends
or make distributions in respect of the capital stock of the Company or the Company’s Subsidiaries; redeem capital stock; place
restrictions on the Company’s Subsidiaries’ ability to pay dividends, make distributions or transfer assets; make investments
or other restricted payments; sell or otherwise dispose of assets; enter into sale-leaseback transactions; engage in transactions with
stockholders or affiliates; issue or sell stock of the Company’s Subsidiaries; or effect a consolidation or merger) or financial
covenants (which may include, among other financial covenants, financial covenants that require the Company and its Subsidiaries to maintain
specified interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios) provided for with respect to the Securities
of the series;
(18) the currency or currencies, including composite currencies, in which payment of the principal of (and premium, if any) and
interest, if any, on such Securities shall be payable (if other than the currency of the United States of America), which unless otherwise
specified shall be the currency of the United States of America as at the time of payment is legal tender for payment of public or private
debts;
(19) if the principal of (and premium, if any) or interest, if any, on such Securities is to be payable, at the election of the
Company or any holder thereof, in a coin or currency other than that in which such Securities are stated to be payable, then the period
or periods within which, and the terms and conditions upon which, such election may be made;
(20) whether interest will be payable in cash or additional Securities at the Company’s or the Securityholders’ option
and the terms and conditions upon which the election may be made;
(21) the terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium,
if any and principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for
federal tax purposes;
(22) additional or alternative provisions, if any, related to defeasance and discharge of the offered Securities;
(23) the applicability of any guarantees;
(24) any restrictions on transfer, sale or assignment of the Securities of the series; and
(25) any other terms of the series.
All Securities of any one
series shall be substantially identical except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures
supplemental hereto.
If any of the terms of the
series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall
be certified by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery of the
Officer’s Certificate of the Company setting forth the terms of the series.
Securities of any particular
series may be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such interest
may be payable and with different redemption dates.
Section
2.02 Form of Securities and Trustee’s Certificate.
The Securities of any series
and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as
set forth in one or more indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officer’s Certificate,
and they may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed
or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities
exchange on which Securities of that series may be listed, or to conform to usage.
Section
2.03
Denominations: Provisions for Payment.
The Securities shall be issuable
as registered Securities and in the minimum denominations of one thousand U.S. dollars ($1,000) or any integral multiple of $1,000 thereof,
subject to Section 2.01(a)(11). The Securities of a particular series shall bear interest payable on the dates and at the rate specified
with respect to that series. Subject to Section 2.01(a)(18), the principal of and the interest on the Securities of any series,
as well as any premium thereon in case of redemption thereof prior to maturity, shall be payable in the coin or currency of the United
States of America that at the time is legal tender for public and private debt, at the office or agency of the Company maintained for
that purpose. Each Security shall be dated the date of its authentication. Interest on the Securities shall be computed on the basis of
a 360-day year composed of twelve 30-day months.
The interest installment
on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series
shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business
on the regular record date for such interest installment. In the event that any Security of a particular series or portion thereof is
called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date and prior
to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security as provided in
Section 3.03.
Any interest on any Security
that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein
called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular record
date by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause
(1) or clause (2) below:
(1) The Company may elect to make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities
(or their respective Predecessor Securities) are registered at the close of business on a special record date for the payment of such
Defaulted Interest, which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Company shall fix
a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date
of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Company
shall promptly notify the Trustee in writing of such special record date and in such notice, instruct the Trustee to send such notice
to holders, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be sent electronically or mailed, first class postage prepaid, to each Securityholder at his or her address
as it appears in the Security Register (as hereinafter defined), not less than 10 days prior to such special record date. Notice of the
proposed payment of such Defaulted Interest and the special record date therefor having been sent as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered on such special
record date.
(2) The Company may make or cause to be made payment of any Defaulted Interest on any Securities in any other lawful manner
not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth
in a Board Resolution or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section
2.01 hereof, the term “regular record date” as used in this Section with respect to a series of Securities and any Interest
Payment Date for such series shall mean either (i) the fifteenth day of the month immediately preceding the month in which an Interest
Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the first
day of a month, or (ii) the first day of the month in which an Interest Payment Date established for such series pursuant to Section
2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing
provisions of this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other
Security.
Section
2.04 Execution and Authentications.
The Securities shall be signed
on behalf of the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile
signature of any Person who shall have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated
and delivered or disposed of such Person shall have ceased to be such an officer of the Company. The Securities may contain such notations,
legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication by
the Trustee.
A Security shall not be valid
until authenticated manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive
evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, signed by an Officer, and the Trustee in accordance with such Company Order shall authenticate and deliver
such Securities.
In authenticating such Securities
and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall receive, and (subject
to Section 7.01) shall be fully protected in conclusively relying upon, an Officer’s Certificate and an Opinion of Counsel
stating that the form and terms thereof have been established in conformity with the provisions of this Indenture, that all conditions
precedent in connection with the issuance, authentication and delivery of such Securities have been met and that such Securities are legal,
valid and binding obligations against the Company, enforceable against it in accordance with its terms, subject to customary exceptions
and qualifications.
The Trustee shall not be
required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own
rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
Section
2.05 Registration of Transfer and Exchange.
(a) Securities of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for
such purpose, for other Securities of such series of authorized denominations, and for a like aggregate principal amount, upon payment
of a sum sufficient to cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of
any Securities so surrendered for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall
deliver in exchange therefor the Security or Securities of the same series that the Securityholder making the exchange shall be entitled
to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or agency designated for such purpose a register or registers
(herein referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe,
the Company shall register the Securities and the transfers of Securities as in this Article provided and which at all reasonable times
shall be open for inspection by the Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein
provided shall be appointed as authorized by Board Resolution (the “Security Registrar”).
Upon surrender for transfer
of any Security at the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate
and such office or agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series as
the Security presented for a like aggregate principal amount.
All Securities presented
or surrendered for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so required by the Company
or the Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar,
duly executed by the registered holder or by such holder’s duly authorized attorney in writing.
(c) Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate,
or established in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration
of transfer of Securities, or issue of new Securities in case of partial redemption of any series, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06,
Section 3.03(b) and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding Securities
of the same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or exchange any
Securities of any series or portions thereof called for redemption, other than the unredeemed portion of any such Securities being redeemed
in part. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
The Trustee shall have no
obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among depositary
participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation
or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine
the same to determine substantial compliance as to form with the express requirements hereof.
Neither the Trustee nor any
Agent shall have any responsibility or liability for any actions taken or not taken by the Depositary.
Section
2.06 Temporary Securities.
Pending the preparation of
definitive Securities of any series, the Company may execute, and the Trustee shall, upon receipt of a Company Order, authenticate and
deliver, temporary Securities (printed, lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be
substantially in the form of the definitive Securities in lieu of which they are issued, but with such omissions, insertions and variations
as may be appropriate for temporary Securities, all as may be determined by the Company. Every temporary Security of any series shall
be executed by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive
Securities of such series and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without
charge to the holders), at the office or agency of the Company designated for the purpose, and the Trustee shall, upon receipt of a Company
Order, authenticate and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate principal amount
of definitive Securities of such series, unless the Company advises the Trustee to the effect that definitive Securities need not be executed
and furnished until further notice from the Company. Until so exchanged, the temporary Securities of such series shall be entitled to
the same benefits under this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section
2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or
definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall
execute, and upon receipt of a Company Order the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the
same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of
and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish
to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case
of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction of the destruction,
loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such substituted Security
and deliver the same upon receipt of a Company Order. Upon the issuance of any substituted Security, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
In case any Security that
has or is about to become due and payable, whether upon maturity of the Securities of a series or upon declaration or otherwise shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment
of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish to
the Company and the Trustee such security or indemnity as they may require to save them harmless, and, in case of destruction, loss or
theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of such Security and of the ownership
thereof.
Every replacement Security
issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not
the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder.
All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
Section
2.08 Cancellation.
All Securities surrendered
for the purpose of payment, redemption, exchange or registration of transfer shall, if surrendered to the Company or any paying agent,
be delivered to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be
issued in lieu thereof except as expressly required or permitted by any of the provisions of this Indenture. On written request of the
Company at the time of such surrender, the Trustee shall deliver to the Company evidence of cancellation for such canceled Securities
held by the Trustee. The Trustee shall cancel and dispose of canceled Securities in accordance with its standard procedures and deliver
a certificate of disposition to the Company. If the Company shall otherwise acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered
to the Trustee for cancellation.
Section
2.09 Benefits of Indenture.
Nothing in this Indenture
or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders
of the Securities any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the
holders of the Securities.
Section
2.10 Authenticating Agent.
So long as any of the Securities
of any series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of
such series issued upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this
Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating Agent for
such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital and surplus,
as most recently reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized or in which it
is doing business to conduct a trust business, and that is otherwise authorized under such laws to conduct such business and is subject
to supervision or examination by federal or state authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance
with these provisions, it shall resign immediately.
Any Authenticating Agent
may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon
request by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating
Agent pursuant hereto.
Section
2.11 Global Securities.
(a) If the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued
as a Global Security, then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver,
a Global Security that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all
of the Outstanding Securities of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered
by the Trustee to the Depositary or held by it, pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially
to the following effect: “Except as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred,
in whole but not in part, only to another nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but
not in part and in the manner provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor
Depositary for such series selected or approved by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue
as Depositary for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under
the Exchange Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default
has occurred and is continuing and the Company has received a request from the Depositary or from the Trustee, this Section 2.11
shall no longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee
will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security.
In addition, the Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security
and that the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company
will execute and, subject to Section 2.04, the Trustee, upon receipt of an Officer’s Certificate and a Company Order evidencing
such determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series
in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive registered form without
coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form
issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee
in writing. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities are
so registered.
ARTICLE
3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section
3.01 Redemption.
The Company may redeem the
Securities of any series issued hereunder on and after the dates and in accordance with the terms established for such series pursuant
to Section 2.01 hereof.
Section
3.02 Notice of Redemption.
(a) In case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities
of any series in accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company
shall, or shall cause the Trustee (upon 5 Business Days written notice, unless a shorter period shall be satisfactory to the Trustee)
to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, electronically or by first class
postage prepaid mail, a notice of such redemption not less than 15 days and not more than 90 days, except that redemption notices may
be sent more than 90 days prior to the redemption date if the notice is issued in connection with a defeasance of the Securities or a
satisfaction and discharge, before the date fixed for redemption of that series to such holders (with a copy to the Trustee) at their
last addresses as they shall appear upon the Security Register, unless a shorter period is specified in the Securities to be redeemed.
Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give such notice to the holder of any Security of any series designated for redemption
in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities
of such series or any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s
Certificate evidencing compliance with any such restriction.
Each such notice of redemption
shall specify the date fixed for redemption, if applicable, any record date with respect to such redemption and the redemption price at
which Securities of that series are to be redeemed, and shall state that payment of the redemption price of such Securities to be redeemed
will be made at the office or agency of the Company, upon presentation and surrender of such Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, that from and after said date interest will cease to accrue and that
the redemption is from a sinking fund, if such is the case. If less than all the Securities of a series are to be redeemed, the notice
to the holders of Securities of that series to be redeemed in part shall specify the particular Securities to be so redeemed.
In case any Security is to
be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed,
and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
(b) If less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 20 days’
notice (unless a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as
it shall deem appropriate and fair in its discretion (and subject to the applicable procedures of the Depositary) and that may provide
for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof) of the principal
amount of such Securities of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify the
Company in writing of the numbers of the Securities to be redeemed, in whole or in part. The Company may, if and whenever it shall so
elect, by delivery of instructions signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or any part
of the Securities of a particular series for redemption and to send notice of redemption in the manner set forth in this Section, such
notice to be in the name and at the expense of the Company. In any case in which notice of redemption is to be sent by the Trustee or
any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying agent,
as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable
the Trustee or such paying agent to give any notice by mail that may be required under the provisions of this Section.
Section
3.03 Payment
Upon Redemption.
(a) If the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities
of the series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice
at the applicable redemption price, together with interest accrued to the date fixed for redemption and interest on such Securities or
portions of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment
of such redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such
Securities on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid and
redeemed at the applicable redemption price for such series, together with interest accrued thereon to the date fixed for redemption (but
if the date fixed for redemption is an interest payment date, the interest installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date pursuant to Section 2.03).
(b) Upon presentation of any physical Security of such series that is to be redeemed in part only, the Company shall execute
and the Trustee shall authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the
expense of the Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion
of the Security so presented.
Section
3.04 Sinking Fund.
The provisions of Sections
3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as
otherwise specified as contemplated by Section 2.01 for Securities of such series.
The minimum amount of any
sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,”
and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities
of any series as provided for by the terms of Securities of such series.
Section
3.05 Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver
Outstanding Securities of a series and (ii) may apply as a credit Securities of a series that have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities
of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series, provided
that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee
at the redemption price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
Section
3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior
to each sinking fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company
will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer’s Certificate, deliver
to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.02. Such notice
having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE
4
COVENANTS
Section
4.01 Payment of Principal, Premium and Interest.
The Company will duly and
punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and
place and in the manner provided herein and established with respect to such Securities. Payments of principal on the physical Securities
may be made at the time provided herein and established with respect to such Securities by U.S. dollar check drawn on and mailed to the
address of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to,
a U.S. dollar account if such Securityholder shall have furnished wire instructions to the Trustee no later than 15 days prior to the
relevant payment date. Payments of interest on the Securities may be made at the time provided herein and established with respect to
such Securities by U.S. dollar check mailed to the address of the Securityholder entitled thereto as such address shall appear in the
Security Register, or U.S. dollar wire transfer to an account in the United States if such Securityholder shall have furnished wire instructions
in writing to the Security Registrar and the Trustee no later than 15 days prior to the relevant payment date.
Section
4.02 Maintenance of Office or Agency.
So long as any series of
the Securities remain Outstanding, the Company agrees to maintain an office or agency with respect to each such series and at such other
location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be presented
for payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange, and
(iii) notices in respect of the Securities of that series and this Indenture may be given or made, such designation to continue with respect
to such office or agency until the Company shall, by written notice in an Officer’s Certificate and delivered to the Trustee, designate
some other office or agency for such purposes or any of them. If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such presentations and notices may be made at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations and notices; provided,
however, the Trustee shall not be considered an agent of the Company for service of process.
Section
4.03 Paying Agents.
(a) If the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee,
the Company will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with
the Trustee, subject to the provisions of this Section:
(1) that it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest
on the Securities of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in
trust for the benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make
any payment of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon
the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent;
(4) that upon any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition
or judicial proceedings affecting the Company, the Trustee will automatically be the Paying Agent; and
(5) that it will perform all other duties of paying agent as set forth in this Indenture.
(b) If the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each
due date of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on
Securities of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company
shall have one or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if
any) or interest on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section
is subject to the provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust
by the Company or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums
were held by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or
such paying agent shall be released from all further liability with respect to such money.
(d) The Company initially appoints the Trustee at its Corporate Trust Office as its paying agent with respect to the Securities.
Section
4.04 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary
to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
Section
4.05 Compliance with Consolidation Provisions.
The Company will not, while
any of the Securities remain Outstanding, consolidate with or merge into any other Person, in either case where the Company is not the
survivor of such transaction, or sell or convey all or substantially all of its property to any other Person unless the provisions of
Article 10 hereof are complied with.
ARTICLE
5
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
Section
5.01 Company to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish
or cause to be furnished to the Trustee (a) within 5 days after each regular record date (as defined in Section 2.03) a list, in
such form as the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities as of such regular
record date, provided that the Company shall not be obligated to furnish or cause to be furnished such list at any time that the
list shall not differ in any respect from the most recent list furnished to the Trustee by the Company and (b) at such other times as
the Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is furnished; provided, however, that, in either case, no
such list need be furnished for any series for which the Trustee shall be the Security Registrar.
Section
5.02 Preservation Of Information; Communications With Securityholders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses
of the holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names
and addresses of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with
respect to their rights under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall
satisfy its obligations under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust
Indenture Act.
Section
5.03 Reports by the Company.
(a) The Company covenants and agrees to provide (which delivery may be via electronic mail) to the Trustee within 30 days, after
the Company files the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) that the Company
is required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however,
the Company shall not be required to deliver to the Trustee any materials for which the Company has sought and received confidential treatment
by the Commission; and provided further, that so long as such filings by the Company are available on the Commission’s Electronic
Data Gathering, Analysis and Retrieval System (EDGAR), or Interactive Data Electronic Applications (IDEA), or any successor system, such
filings shall be deemed to have been filed with the Trustee for purposes hereof without any further action required by the Company; provided
that an electronic link to such filing, together with an electronic notice of such filing have been sent to the Trustee it being understood
that the Trustee shall have no responsibility to determine whether such filings have been made. For the avoidance of doubt, a failure
by the Company to file annual reports, information and other reports with the Commission within the time period prescribed thereof by
the Commission shall not be deemed a breach of this Section 5.03.
(b) Delivery of reports, information and documents to the Trustee under Section 5.03 is for informational purposes only
and the information and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained
therein, or determinable from information contained therein including the Company’s compliance with any of their covenants thereunder
(as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate).
Section
5.04 Reports by the Trustee.
(a) If required by Section 313(a) of the Trust Indenture Act, the Trustee, within sixty (60) days after each May 15, commencing
the calendar year after the year in which the first Securities are issued hereunder, shall transmit by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear upon the Security Register, a brief report dated as of such May 15, which
complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the
Company, with each securities exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees
to notify the Trustee in writing when any Securities become listed on any securities exchange or of any delisting thereof.
ARTICLE
6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
Section
6.01 Events of Default.
(a) Whenever used herein with respect to Securities of a particular series, “Event of Default” means any
one or more of the following events that has occurred and is continuing:
(1) the Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when
the same shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension
of an interest payment period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a
default in the payment of interest for this purpose;
(2) the Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as
and when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required
by any sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the
maturity of such Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment
of principal or premium, if any;
(3) the Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in
this Indenture or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a
covenant or agreement that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other
than such series) for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and
stating that such notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee or
to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time Outstanding;
(4) the Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the
entry of an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property or (iv) makes a general assignment for the benefit of its creditors; or
(5) a court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in
an involuntary case, (ii) appoints a Custodian of the Company for all or substantially all of its property or (iii) orders the liquidation
of the Company, and the order or decree remains unstayed and in effect for 90 days.
(b) In each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal
of all the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest
on all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall
be immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of and accrued
and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without any declaration or
other act on the part of the Trustee or the holders of the Securities.
(c) At any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series
shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company
has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of that series
and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise than by acceleration
(with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per annum expressed in the Securities of that series to the date of such payment or deposit)
and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture with respect
to such series, other than the nonpayment of principal on (and premium, if any, on) and accrued and unpaid interest on Securities of that
series that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.06.
No such rescission and annulment
shall extend to or shall affect any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture
and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall
have been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the Company
and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee shall continue as though no such proceedings had been taken.
Section
6.02 Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) The Company covenants that if an Event of Default described in Section 6.01(a) or 6.01(b) shall have occurred with respect
to the Securities of any series, the Company will pay to the Trustee, for the benefit of the holders of the Securities of that series,
the whole amount that then shall have been become due and payable on all such Securities for principal (and premium, if any) or interest,
or both, as the case may be, with interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest
is enforceable under applicable law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series;
and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable
to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of
an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the
sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment
or final decree against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to
be payable in the manner provided by law or equity out of the property of the Company or other obligor upon the Securities of that series,
wherever situated.
(c) In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition
or judicial proceedings affecting the Company, or its creditors or property, irrespective of whether the Trustee shall have made any demand
pursuant to this Section 6.02, the Trustee shall have power to intervene in such proceedings and take any action therein that may be permitted
by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim and other papers and documents
as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities of such series allowed for
the entire amount due and payable by the Company under the Indenture at the date of institution of such proceedings and for any additional
amount that may become due and payable by the Company after such date, and to collect and receive any moneys or other property payable
or deliverable on any such claim, and to distribute the same after the deduction of the amount payable to the Trustee under Section
7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the holders of Securities
of such series to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly
to such Securityholders, to pay to the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to
Securities of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof
at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due
under Section 7.06, be for the ratable benefit of the holders of the Securities of such series.
In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or
in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or in aid of
the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Nothing contained herein
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder thereof or to authorize the
Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section
6.03 Application of Moneys Collected.
Any moneys or properties
collected by the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium,
if any) or interest, upon presentation of the Securities of that series, and notation thereon of the payment, if only partially paid,
and upon surrender thereof if fully paid:
FIRST: To the payment
of reasonable costs and expenses of collection and of all amounts payable to the Trustee, its agents and attorneys under this Indenture;
SECOND: To the payment
of the amounts then due and unpaid upon Securities of such series for principal (and premium, if any) and interest, in respect of which
or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To the payment
of the remainder, if any, to the Company or any other Person lawfully entitled thereto.
Section
6.04 Limitation on Suits.
No holder of any Security
of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance
thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided; (ii) the holders of
not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii) such holder or holders shall have
offered to the Trustee such indemnity reasonably satisfactory to it as it may require against the costs, expenses, claims and liabilities
to be incurred therein or thereby; (iv) the Trustee for 90 days after its receipt of such notice, request and offer of indemnity, shall
have failed to institute any such action, suit or proceeding and (v) during such 90 day period, the holders of a majority in principal
amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything
contained herein to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive payment
of the principal of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed
in such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such holder and by accepting
a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security of such series with
every other such taker and holder and the Trustee, that no one or more holders of Securities of such series shall have any right in any
manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the holders
of any other of such Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any
right under this Indenture (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions
or forbearances are unduly prejudicial to such holders), except in the manner herein provided and for the equal, ratable and common benefit
of all holders of Securities of such series. For the protection and enforcement of the provisions of this Section, each and every Securityholder
and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section
6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to
the Securityholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available
to the Trustee or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon
any Event of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver
of any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by
this Article or by law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee or by the Securityholders.
Section
6.06 Control by Securityholders.
The holders of a majority
in aggregate principal amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04,
shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to such series; provided, however, that such direction shall not
be in conflict with any rule of law or with this Indenture or subject the Trustee in its sole discretion to personal liability. The Trustee
shall have the right to decline to follow any such direction if the Trustee in good faith shall determine that the proceeding so directed,
subject to the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly
prejudicial to the Securityholders not involved in the proceeding. Prior to taking any action under this Indenture, the Trustee shall
be entitled to indemnity or security satisfactory to it against loss, liability or expense that may be caused by taking such action. The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding affected thereby, determined
in accordance with Section 8.04, may on behalf of the holders of all of the Securities of such series waive any past default in
the performance of any of the covenants contained herein or established pursuant to Section 2.01 with respect to such series and
its consequences, except a default in the payment of the principal of, or premium, if any, or interest on, any of the Securities of that
series as and when the same shall become due by the terms of such Securities otherwise than by acceleration (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and principal and any premium has been deposited with the Trustee
(in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes
of this Indenture and the Company, the Trustee and the holders of the Securities of such series shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent
thereon.
Section
6.07 Undertaking to Pay Costs.
All parties to this Indenture
agree, and each holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or
group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security
of such series, on or after the respective due dates expressed in such Security or established pursuant to this Indenture.
ARTICLE
7
CONCERNING THE TRUSTEE
Section
7.01 Certain Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing
of all Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect
to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants
shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred
(that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person’s own affairs.
(b) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving
of all such Events of Default with respect to that series that may have occurred:
(A)
the duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the
performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(B)
in the absence of willful misconduct on the part of the Trustee, the Trustee may with respect to the Securities of such
series conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein);
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance
with the direction of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding
relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture with respect to the Securities of that series; and
(4) none of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur personal or financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there
is reasonable ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably assured to it.
Section
7.02 Certain Rights of Trustee.
Except as otherwise provided
in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document or other evidence of
indebtedness believed by it to be genuine and to have been signed or presented by the proper party or parties. The Trustee need not investigate
any fact or matter stated in the document. The Trustee shall receive and retain financial reports and statements of the Company to the
extent provided herein, but shall have no duty to review or analyze such reports or statements to determine compliance with covenants
or other obligations of the Company;
(b) Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution
or an instrument signed in the name of the Company by any authorized Officer of the Company (unless other evidence in respect thereof
is specifically prescribed herein);
(c) The Trustee may consult with counsel of its selection and the advice of such counsel or, if requested, any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith
and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have
offered (and if requested, provided) to the Trustee security or indemnity satisfactory to it against the costs, expenses, claims and liabilities
that may be incurred therein or thereby;
(e) The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents or other
evidence of indebtedness, unless requested in writing so to do by the holders of not less than a majority in principal amount of the Outstanding
Securities of the particular series affected thereby (determined as provided in Section 8.04); provided, however,
that if the payment within a reasonable time to the Trustee of the costs, expenses, claims 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 indemnity or security satisfactory to it against such costs, expenses, claims
or liabilities as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Company or, if paid
by the Trustee, shall be repaid by the Company upon demand;
(g) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h) In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances;
(i) In no event shall the Trustee be responsible or liable for special, punitive, indirect, or consequential loss or damage
of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action;
(j) The permissive rights of the Trustee enumerated herein shall not be construed as duties;
(k) The Trustee may request that the Company 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; and
(l) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
In addition, the Trustee
shall not be deemed to have knowledge of any Default or Event of Default until a Responsible Officer of the Trustee shall have received
written notification in the manner set forth in this Indenture, and such notice references the Securities and this Indenture or a Responsible
Officer of the Trustee shall have obtained actual knowledge.
Section
7.03 Trustee Not Responsible for Recitals or Issuance or Securities.
(a) The recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes
no responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds
of such Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture
or established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the
Trustee.
Section
7.04 May Hold Securities.
The Trustee or any paying
agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights
it would have if it were not Trustee, paying agent or Security Registrar.
Section
7.05 Moneys Held in Trust.
Subject to the provisions
of Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on any moneys received by it hereunder except such as it may agree in writing with the Company to pay
thereon.
Section
7.06 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such compensation (which shall
not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as the Company and the Trustee
may from time to time agree in writing, for all services rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided herein, the Company
will pay or reimburse the Trustee upon its request for all reasonable and documented expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable and documented fees and the expenses
and disbursements of its counsel and of all Persons not regularly in its employ), except any such expense, disbursement or advance as
may arise from its negligence or willful misconduct. The Company also covenants to indemnify the Trustee (and its officers, agents, directors
and employees) for, and to hold it harmless against, any documented loss, liability or expense, including reasonable and documented attorneys’
fees, incurred without negligence or willful misconduct on the part of the Trustee and arising out of or in connection with the acceptance
or administration of this trust, including the reasonable and documented costs and expenses of defending itself against any claim of liability
in the premises (whether asserted by the Company, 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.
(b) The obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee
for reasonable expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall
be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the holders of particular Securities.
(c) To ensure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities
on all funds or property held or collected by the Trustee, except that held in trust to pay principal of, premium, if any, or interest
on particular Securities. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section
6.01(a)(4) or (5), the expenses (including the reasonable fees and expenses of its counsel) and the compensation for services
in connection therewith are to constitute expenses of administration under any Bankruptcy Law. The provisions of this Section 7.06
shall survive the termination of this Indenture and the earlier resignation or removal of the Trustee.
Section
7.07 Reliance on Officer’s Certificate or Opinion of Counsel.
Except as otherwise provided
in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary
or desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or willful misconduct on
the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate and Opinion of Counsel
delivered to the Trustee and such certificate and opinion, in the absence of negligence or willful misconduct on the part of the Trustee,
shall be full warrant to the Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture
upon the faith thereof.
Section
7.08 Disqualification; Conflicting Interests.
If the Trustee has or shall
acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company
shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section
7.09 Corporate Trustee Required; Eligibility.
There shall at all times
be a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and doing business under
the laws of the United States of America or any state or territory thereof or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state, territorial,
or District of Columbia authority.
If such corporation or other
Person publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such corporation or other Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor may
any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in
the manner and with the effect specified in Section 7.10.
Section
7.10 Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series
by giving written notice thereof to the Company and by transmitting notice of resignation by electronic mail, or by first class postage
prepaid mail, to the Securityholders of such series, as their names and addresses appear upon the Security Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee with respect to Securities of such series by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after
the mailing of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder
of a Security or Securities for at least six months may on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint
a successor trustee.
(b) In case at any time any one of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company
or by any Securityholder who has been a bona fide holder of a Security or Securities for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign
after written request therefor by the Company or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee with respect
to all Securities and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or any Securityholder who
has been a bona fide holder of a Security or Securities for at least six months may, on behalf of that holder and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any
time remove the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for
such series with the consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series
pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided
in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more
series or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section
7.11 Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee
so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor trustee, such retiring Trustee shall, upon full payment of any amount then due it pursuant to Section
7.06, execute and deliver an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute
and deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such
successor trustee relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee
and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment of such successor
trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations
vested in the Trustee under this Indenture, and each such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but, on request of the Company or any successor trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property
and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such
successor trustee relates.
(c) Upon request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be
qualified and eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of
the succession of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear
upon the Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section
7.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee,
including the administration of the trust created by this Indenture, shall be the successor of the Trustee hereunder, provided
that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09,
without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such Securities.
Section
7.13 Preferential Collection of Claims Against the Company.
The Trustee shall comply
with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture
Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section
7.14 Notice of Default.
If any Event of Default occurs
and is continuing and if such Event of Default is actually known to a Responsible Officer of the Trustee, the Trustee shall send to each
Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Event of Default within
the later of 90 days after it occurs and 30 days after it is actually known to a Responsible Officer of the Trustee or written notice
of it is received by the Trustee, unless such Event of Default has been cured; provided, however, that, except in the case
of a default in the payment of the principal of (or premium, if any) or interest on any Security, the Trustee shall be protected in withholding
such notice if and so long as it in good faith determines that the withholding of such notice is in the interest of the Securityholders.
ARTICLE
8
CONCERNING THE SECURITYHOLDERS
Section
8.01 Evidence of Action by Securityholders.
Whenever in this Indenture
it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular
series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action the holders of such majority or specified percentage of that series
have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders of Securities
of that series in person or by agent or proxy appointed in writing.
If the Company shall solicit
from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, as evidenced by an Officer’s Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company
shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver
or other action may be given before or after the record date, but only the Securityholders of record at the close of business on the record
date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of Outstanding
Securities of that series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver
or other action, and for that purpose the Outstanding Securities of that series shall be computed as of the record date; provided,
however, that no such authorization, agreement or consent by such Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
Section
8.02 Proof of Execution by Securityholders.
Subject to the provisions
of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his
agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable
to the Trustee.
(b) The ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security
Registrar thereof. The Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary.
Section
8.03 Who May be Deemed Owners.
Prior to the due presentment
for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat
the Person in whose name such Security shall be registered upon the books of the Security Registrar as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than
the Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to Section
2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
Section
8.04 Certain Securities Owned by Company Disregarded.
In determining whether the
holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any direction, consent, demand,
authorization, notice or waiver under this Indenture, the Securities of that series that are owned by the Company or any other obligor
on the Securities of that series or by any Person directly or indirectly controlling or controlled by or under common control with the
Company or any other obligor on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction,
consent or waiver, only Securities of such series that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.
The Securities so owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee
shall establish to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee
is not a Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any
such other obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
Section
8.05 Actions Binding on Future Securityholders.
At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority
or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with such
action, any holder of a Security of that series that is shown by the evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued in exchange
therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made
upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal amount of the Securities of a
particular series specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee
and the holders of all the Securities of that series.
ARTICLE
9
SUPPLEMENTAL INDENTURES
Section
9.01 Supplemental Indentures Without the Consent of Securityholders.
In addition to any supplemental
indenture otherwise authorized by this Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent
of the Securityholders at any time Outstanding, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b) to comply with Article 10;
(c) to provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of
all or any series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than
all series of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for
the benefit of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes
of issue, authentication, and delivery of Securities, as herein set forth;
(f) to make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g) to provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided
in Section 2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or
any series of Securities, or to add to the rights of the holders of any series of Securities;
(h) to evidence and provide for the acceptance of appointment hereunder by a successor trustee or to appoint a separate trustee
with respect to any series; or
(i) to comply with any requirements of the Commission or any successor in connection with the qualification of this Indenture
under the Trust Indenture Act.
The Trustee is hereby authorized
to join with the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture
authorized by the provisions of this Section may be executed by the Company and the Trustee without the consent of the holders of any
of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section
9.02 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced
as provided in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each
series affected by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered by Section
9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend the
fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid percentage of Securities, the
holders of which are required to consent to any such supplemental indenture.
It shall not be necessary
for the consent of the Securityholders of any series affected thereby under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. The Trustee shall not be obligated
to enter into any such supplemental indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.
Section
9.03 Effect of Supplemental Indentures.
Upon the execution of any
supplemental indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such
series only, be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for
any and all purposes with respect to such series.
Section
9.04 Securities Affected by Supplemental Indentures.
Securities of any series
affected by a supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements
of any securities exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee
and delivered in exchange for the Securities of that series then Outstanding.
Section
9.05 Execution of Supplemental Indentures.
Upon the request of the Company,
accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such supplemental
indenture. The Trustee shall receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article is authorized or permitted by the terms of this Article and that all conditions precedent
to the execution of the supplemental indenture have been complied with and with respect to such Opinion of Counsel, that such supplemental
indenture is the legal, valid and binding obligation of the Company, enforceable against each of them in accordance with its terms, subject
to customary exceptions and qualifications.
Promptly after the execution
by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Article, the Company shall transmit by
electronic mail, or by first class mail, postage prepaid, a notice, setting forth in general terms the substance of such supplemental
indenture, to the Securityholders of all series affected thereby as their names and addresses appear upon the Security Register. Any failure
of the Company to mail, or cause the mailing of, such notice, or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
ARTICLE
10
SUCCESSOR ENTITY
Section
10.01 Company May Consolidate, Etc.
Nothing contained in this
Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated with the Company)
or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, or shall prevent
any sale, conveyance, transfer or other disposition of the property of the Company or its successor or successors as an entirety, or substantially
as an entirety, to any other corporation (whether or not affiliated with the Company or its successor or successors) authorized to acquire
and operate the same; provided, however, (a) the Company hereby covenants and agrees that, upon any such consolidation or
merger (in each case, if the Company is not the survivor of such transaction), sale, conveyance, transfer or other disposition, the due
and punctual payment of the principal of (premium, if any) and interest on all of the Securities of all series in accordance with the
terms of each series, according to their tenor, and the due and punctual performance and observance of all the covenants and conditions
of this Indenture with respect to each series or established with respect to such series pursuant to Section 2.01 to be kept or
performed by the Company shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture
Act, as then in effect) executed and delivered to the Trustee by the entity formed by such consolidation, or into which the Company shall
have been merged, or by the entity which shall have acquired such property and (b) in the event that the Securities of any series then
Outstanding are convertible into or exchangeable for shares of common stock or other securities of the Company, such entity shall, by
such supplemental indenture, make provision so that the Securityholders of Securities of that series shall thereafter be entitled to receive
upon conversion or exchange of such Securities the number of securities or property to which a holder of the number of shares of common
stock or other securities of the Company deliverable upon conversion or exchange of those Securities would have been entitled had such
conversion or exchange occurred immediately prior to such consolidation, merger, sale, conveyance, transfer or other disposition. If the
Company is not the surviving entity of any such transaction, the Company or the continuing entity agrees to deliver to the Trustee an
Officer’s Certificate and Opinion of Counsel stating that the transaction and the supplemental indenture complies with this Section
10.01 and that all conditions precedent herein relating to the transaction have been satisfied.
Section
10.02 Successor Entity Substituted.
(a) In case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the
successor entity by supplemental indenture, executed and delivered to the Trustee, of the obligations set forth under Section 10.01
on all of the Securities of all series Outstanding, such successor entity shall succeed to and be substituted for the Company with the
same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be relieved of all obligations
and covenants under this Indenture and the Securities.
(b) In case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology
and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c) Nothing contained in this Article shall require any action by the Company in the case of a consolidation or merger of any
Person into the Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise,
of all or any part of the property of any other Person (whether or not affiliated with the Company).
ARTICLE
11
SATISFACTION AND DISCHARGE
Section
11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company
shall have delivered to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee
for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or paid as
provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have theretofore been deposited in
trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged from such trust, as provided in
Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation shall
have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit or cause
to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination thereof, sufficient
in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered
to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed for redemption, as
the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder with respect to such series by
the Company then this Indenture shall thereupon cease to be of further effect with respect to such series except for the provisions of
Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the date
of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter,
and the Trustee, on demand of the Company and at the cost and expense of the Company shall execute such instruments reasonably requested
by the Company acknowledging satisfaction of and discharging this Indenture with respect to such series.
Section
11.02 Discharge of Obligations.
If at any time all such Securities
of a particular series not heretofore delivered to the Trustee for cancellation or that have not become due and payable as described in
Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount
of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder
by the Company with respect to such series, then after the date such moneys or Governmental Obligations, as the case may be, are deposited
with the Trustee the obligations of the Company under this Indenture with respect to such series shall cease to be of further effect except
for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.06, 7.10
and 11.05 hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06
and 11.05 shall survive.
Section
11.03 Deposited Moneys to be Held in Trust.
All moneys or Governmental
Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available
for payment as due, either directly or through any paying agent (including the Company acting as its own paying agent), to the holders
of the particular series of Securities for the payment or redemption of which such moneys or Governmental Obligations have been deposited
with the Trustee.
Section
11.04 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction
and discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability
with respect to such moneys or Governmental Obligations.
Section
11.05 Repayment to Company.
Any moneys or Governmental
Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or premium,
if any, or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities
for at least two years after the date upon which the principal of (and premium, if any) or interest on such Securities shall have respectively
become due and payable, or such other shorter period set forth in applicable escheat or abandoned or unclaimed property law, shall be
repaid to the Company on May 31 of each year or upon the Company’s request or (if then held by the Company) shall be discharged
from such trust; and thereupon the paying agent and the Trustee shall be released from all further liability with respect to such moneys
or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment shall thereafter, as a general creditor,
look only to the Company for the payment thereof.
ARTICLE
12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section
12.01 No Recourse.
No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood
that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason
of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom; and that any
and all such personal liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any
and all such rights and claims against, every such incorporator, stockholder, officer or director as such, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Securities.
ARTICLE
13
MISCELLANEOUS PROVISIONS
Section
13.01 Effect on Successors and Assigns.
All the covenants, stipulations,
promises and agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so expressed
or not.
Section
13.02 Actions by Successor.
Any act or proceeding by
any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall
and may be done and performed with like force and effect by the corresponding board, committee or officer of any corporation that shall
at the time be the lawful successor of the Company.
Section
13.03 Surrender of Company Powers.
The Company by instrument
in writing executed by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the
Company, and thereupon such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section
13.04 Notices.
Except as otherwise expressly
provided herein, any notice, request or demand that by any provision of this Indenture is required or permitted to be given, made or served
by the Trustee or by the holders of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or
served by any standard form of telecommunication or by being deposited in first class mail, postage prepaid, addressed (until another
address is filed in writing by the Company with the Trustee), as follows: [ ]. Any notice, election, request or demand by the Company
or any Securityholder or by any other Person pursuant to this Indenture to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at the Corporate Trust Office of the Trustee. Notwithstanding anything herein
to the contrary, where reference herein is made to notice of any event (including notice of redemption) to a Securityholder of Global
Securities, whether by mail or otherwise, such notice shall be sufficiently given when delivered to the Depositary (or its designee) pursuant
to the customary procedures of the Depositary.
Section
13.05 Governing Law; Jury Trial Waiver.
THIS INDENTURE AND EACH SECURITY,
AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH SECURITY, SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF). EACH OF THE COMPANY
AND THE TRUSTEE 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 INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section
13.06 Treatment of Securities as Debt.
It is intended that the Securities
will be treated as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted
to further this intention.
Section
13.07 Certificates and Opinions as to Conditions Precedent.
(a) Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture,
the Company shall furnish to the Trustee an Officer’s Certificate stating that all covenants and conditions precedent provided for
in this Indenture (other than the certificate to be delivered pursuant to Section 13.12) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such counsel all such covenants and conditions precedent have been
complied with.
(b) Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with
a condition or covenant in this Indenture shall include (i) a statement that the Person making such certificate or opinion has read such
covenant or condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such
examination or investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant
has been complied with.
Section
13.08 Payments on Business Days.
Except as provided pursuant
to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more
indentures supplemental to this Indenture, in any case where the date that principal of, interest and/or premium, if any, on any Security
is due or otherwise payable shall not be a Business Day or is a day on which the banking institutions in the city of the office of the
Paying Agent are authorized or obligated by law to close or be closed, then payment of principal, premium, if any, and/or interest may
be made on the next succeeding day that is a Business Day and is not a day on which the banking institutions in the city of the office
of the Paying Agent are authorized or obligated by law to close or be closed with the same force and effect as if made on the nominal
date of maturity or redemption, and no interest shall accrue for the period after such nominal date.
Section
13.09 Conflict with Trust Indenture Act.
If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
Section
13.10 Counterparts.
This Indenture may be executed
in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same
instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective
execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes.
Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section
13.11 Separability.
In case any one or more of
the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities,
but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained
herein or therein.
Section
13.12 Compliance Certificates.
The Company shall deliver
to the Trustee, within 120 days after the end of each fiscal year during which any Securities of any series were outstanding, an Officer’s
Certificate stating whether or not the signers know of any Event of Default that occurred during such fiscal year. Such certificate shall
contain a certification from the principal executive officer, principal financial officer or principal accounting officer of the Company
that a review has been conducted of the activities of the Company and the Company’s performance under this Indenture and that the
Company has complied with all conditions and covenants under this Indenture. For purposes of this Section 13.12, such compliance
shall be determined without regard to any period of grace or requirement of notice provided under this Indenture. If the officer of the
Company signing such certificate has knowledge of such an Event of Default, the certificate shall describe any such Event of Default and
its status.
Section
13.13 USA PATRIOT ACT.
The parties hereto acknowledge
that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the
funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal
entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide
the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
Section
13.14 Calculations.
It is understood that the
Trustee nor the Paying Agent shall have no responsibility for any calculations hereunder and shall be entitled to conclusively rely on
the calculations of the Company without any independent verification or investigation.
IN WITNESS WHEREOF,
the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
|
|
BRAINSTORM CELL THERAPEUTICS INC., as Issuer
|
Signature Page to Form of Indenture
TRUST INDENTURE ACT CROSS-REFERENCE TABLE2
|
Section of Trust Indenture Act of
1939, as amended
|
|
Section of
Indenture
|
|
310(a)
|
|
7.09
|
|
310(b)
|
|
7.08
7.10
|
|
310(c)
|
|
Inapplicable
|
|
311(a)
|
|
7.13
|
|
311(b)
|
|
7.13
|
|
311(c)
|
|
Inapplicable
|
|
312(a)
|
|
5.01
5.02(a)
|
|
312(b)
|
|
5.02(c)
|
|
312(c)
|
|
5.02(c)
|
|
313(a)
|
|
5.04(a)
|
|
313(b)
|
|
5.04(b)
|
|
313(c)
|
|
5.04(a)
5.04(b)
|
|
313(d)
|
|
5.04(c)
|
|
314(a)
|
|
5.03
13.12
|
|
314(b)
|
|
Inapplicable
|
|
314(c)
|
|
13.07(a)
|
|
314(d)
|
|
Inapplicable
|
|
314(e)
|
|
13.07(b)
|
|
314(f)
|
|
Inapplicable
|
|
315(a)
|
|
7.01(a)
7.01(b)
|
|
315(b)
|
|
7.14
|
|
315(c)
|
|
7.01(a)
|
|
315(d)
|
|
7.01(b)
|
|
315(e)
|
|
6.07
|
|
316(a)
|
|
6.06
8.04
|
|
316(b)
|
|
6.04
|
|
316(c)
|
|
8.01
|
|
317(a)
|
|
6.02
|
|
317(b)
|
|
4.03
|
|
318(a)
|
|
13.09
|
2
This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation
of any of its terms or provisions.
Exhibit 4.3
BRAINSTORM CELL THERAPEUTICS INC.,
Issuer
AND
[TRUSTEE],
Trustee
INDENTURE
Dated as of [●], 202[●]
Subordinated Debt Securities
TABLE OF CONTENTS1
|
Article 1
|
DEFINITIONS
|
1
|
|
|
|
|
|
|
|
Section 1.01
|
|
Definitions of Terms.
|
1
|
|
|
|
|
|
|
|
Article 2
|
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
|
4
|
|
|
|
|
|
|
|
Section 2.01
|
|
Designation and Terms of Securities.
|
4
|
|
Section 2.02
|
|
Form of Securities and Trustee’s
Certificate.
|
6
|
|
Section 2.03
|
|
Denominations: Provisions for
Payment.
|
6
|
|
Section 2.04
|
|
Execution and Authentications.
|
8
|
|
Section 2.05
|
|
Registration of Transfer and
Exchange.
|
8
|
|
Section 2.06
|
|
Temporary Securities.
|
9
|
|
Section 2.07
|
|
Mutilated, Destroyed, Lost or
Stolen Securities.
|
9
|
|
Section 2.08
|
|
Cancellation.
|
10
|
|
Section 2.09
|
|
Benefits of Indenture.
|
10
|
|
Section 2.10
|
|
Authenticating Agent.
|
10
|
|
Section 2.11
|
|
Global Securities.
|
11
|
|
|
|
|
|
|
|
Article 3
|
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
|
12
|
|
|
|
|
|
|
|
Section 3.01
|
|
Redemption.
|
12
|
|
Section 3.02
|
|
Notice of Redemption.
|
12
|
|
Section 3.03
|
|
Payment Upon Redemption.
|
13
|
|
Section 3.04
|
|
Sinking Fund.
|
13
|
|
Section 3.05
|
|
Satisfaction of Sinking Fund
Payments with Securities.
|
13
|
|
Section 3.06
|
|
Redemption of Securities for
Sinking Fund.
|
13
|
|
|
|
|
|
|
|
Article 4
|
COVENANTS
|
14
|
|
|
|
|
|
|
|
Section 4.01
|
|
Payment of Principal, Premium
and Interest.
|
14
|
|
Section 4.02
|
|
Maintenance of Office or Agency.
|
14
|
|
Section 4.03
|
|
Paying Agents.
|
14
|
|
Section 4.04
|
|
Appointment to Fill Vacancy
in Office of Trustee.
|
15
|
|
Section 4.05
|
|
Compliance with Consolidation
Provisions.
|
15
|
|
|
|
|
|
|
|
Article 5
|
SECURITYHOLDERS ’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
|
15
|
|
|
|
|
|
|
|
Section 5.01
|
|
Company to Furnish Trustee Names
and Addresses of Securityholders.
|
15
|
|
Section 5.02
|
|
Preservation Of Information;
Communications With Securityholders.
|
16
|
|
Section 5.03
|
|
Reports by the Company.
|
16
|
|
Section 5.04
|
|
Reports by the Trustee.
|
16
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|
|
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|
|
|
|
Article 6
|
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
|
17
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|
|
|
|
|
|
|
Section 6.01
|
|
Events of Default.
|
17
|
|
Section 6.02
|
|
Collection of Indebtedness and
Suits for Enforcement by Trustee.
|
18
|
|
Section 6.03
|
|
Application of Moneys Collected.
|
19
|
|
Section 6.04
|
|
Limitation on Suits.
|
19
|
|
Section 6.05
|
|
Rights and Remedies Cumulative;
Delay or Omission Not Waiver.
|
20
|
|
Section 6.06
|
|
Control by Securityholders.
|
20
|
|
Section 6.07
|
|
Undertaking to Pay Costs.
|
20
|
|
|
|
|
|
|
|
Article 7
|
CONCERNING THE TRUSTEE
|
21
|
|
|
|
|
|
|
|
Section 7.01
|
|
Certain Duties and Responsibilities
of Trustee.
|
21
|
|
Section 7.02
|
|
Certain Rights of Trustee.
|
22
|
1 This Table of Contents
does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
|
Section 7.03
|
|
Trustee Not Responsible for
Recitals or Issuance or Securities.
|
23
|
|
Section 7.04
|
|
May Hold Securities.
|
23
|
|
Section 7.05
|
|
Moneys Held in Trust.
|
23
|
|
Section 7.06
|
|
Compensation and Reimbursement.
|
23
|
|
Section 7.07
|
|
Reliance on Officer’s
Certificate or Opinion of Counsel.
|
24
|
|
Section 7.08
|
|
Disqualification; Conflicting
Interests.
|
24
|
|
Section 7.09
|
|
Corporate Trustee Required;
Eligibility.
|
24
|
|
Section 7.10
|
|
Resignation and Removal; Appointment
of Successor.
|
25
|
|
Section 7.11
|
|
Acceptance of Appointment By
Successor.
|
25
|
|
Section 7.12
|
|
Merger, Conversion, Consolidation
or Succession to Business.
|
26
|
|
Section 7.13
|
|
Preferential Collection of Claims
Against the Company.
|
27
|
|
Section 7.14
|
|
Notice of Default.
|
27
|
|
|
|
|
|
|
|
Article 8
|
CONCERNING THE SECURITYHOLDERS
|
27
|
|
|
|
|
|
|
|
Section 8.01
|
|
Evidence of Action by Securityholders.
|
27
|
|
Section 8.02
|
|
Proof of Execution by Securityholders.
|
27
|
|
Section 8.03
|
|
Who May be Deemed Owners.
|
28
|
|
Section 8.04
|
|
Certain Securities Owned by
Company Disregarded.
|
28
|
|
Section 8.05
|
|
Actions Binding on Future Securityholders.
|
28
|
|
|
|
|
|
|
|
Article 9
|
SUPPLEMENTAL INDENTURES
|
28
|
|
|
|
|
|
|
|
Section 9.01
|
|
Supplemental Indentures Without
the Consent of Securityholders.
|
28
|
|
Section 9.02
|
|
Supplemental Indentures With
Consent of Securityholders.
|
29
|
|
Section 9.03
|
|
Effect of Supplemental Indentures.
|
30
|
|
Section 9.04
|
|
Securities Affected by Supplemental
Indentures.
|
30
|
|
Section 9.05
|
|
Execution of Supplemental Indentures.
|
30
|
|
|
|
|
|
|
|
Article 10
|
SUCCESSOR ENTITY
|
30
|
|
|
|
|
|
|
|
Section 10.01
|
|
Company May Consolidate, Etc.
|
30
|
|
Section 10.02
|
|
Successor Entity Substituted.
|
31
|
|
|
|
|
|
|
|
Article 11
|
SATISFACTION AND DISCHARGE
|
31
|
|
|
|
|
|
|
|
Section 11.01
|
|
Satisfaction and Discharge of
Indenture.
|
31
|
|
Section 11.02
|
|
Discharge of Obligations.
|
32
|
|
Section 11.03
|
|
Deposited Moneys to be Held
in Trust.
|
32
|
|
Section 11.04
|
|
Payment of Moneys Held by Paying
Agents.
|
32
|
|
Section 11.05
|
|
Repayment to Company.
|
32
|
|
|
|
|
|
|
|
Article 12
|
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
|
33
|
|
|
|
|
|
|
|
Section 12.01
|
|
No Recourse.
|
33
|
|
|
|
|
|
|
|
Article 13
|
MISCELLANEOUS PROVISIONS
|
33
|
|
|
|
|
|
|
|
Section 13.01
|
|
Effect on Successors and Assigns.
|
33
|
|
Section 13.02
|
|
Actions by Successor.
|
33
|
|
Section 13.03
|
|
Surrender of Company Powers.
|
33
|
|
Section 13.04
|
|
Notices.
|
33
|
|
Section 13.05
|
|
Governing Law; Jury Trial Waiver.
|
34
|
|
Section 13.06
|
|
Treatment of Securities as Debt.
|
34
|
|
Section 13.07
|
|
Certificates and Opinions as
to Conditions Precedent.
|
34
|
|
Section 13.08
|
|
Payments on Business Days.
|
34
|
|
Section 13.09
|
|
Conflict with Trust Indenture
Act.
|
34
|
|
Section 13.10
|
|
Counterparts.
|
35
|
|
Section 13.11
|
|
Separability.
|
35
|
|
Section 13.12
|
|
Compliance Certificates.
|
35
|
|
Section 13.13
|
|
USA PATRIOT ACT.
|
35
|
|
Section 13.14
|
|
Calculations.
|
35
|
|
|
|
|
|
|
|
Article 14
|
SUBORDINATION OF SECURITIES
|
35
|
|
|
|
|
|
|
|
Section 14.01
|
|
Subordination Terms.
|
35
|
|
|
|
|
|
|
|
TRUST INDENTURE ACT CROSS-REFERENCE TABLE
|
INDENTURE
INDENTURE, dated as of [●], 202[●]
, among BRAINSTORM CELL THERAPEUTICS INC., a Delaware corporation (the “Company”), and [TRUSTEE] as trustee
(the “Trustee”):
WHEREAS, for its lawful corporate purposes,
the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of subordinated debt securities
(hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued from time to
time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated by the certificate
of the Trustee;
WHEREAS, to provide the terms and conditions
upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution of this Indenture;
and
WHEREAS, all things necessary to make this
Indenture a valid and binding agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the
premises and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal and
ratable benefit of the holders of Securities:
Article 1
DEFINITIONS
Section 1.01
Definitions of Terms.
The terms defined in this Section (except as in
this Indenture or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires) for all purposes
of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section and shall include
the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939, as amended,
or that are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein or any indenture supplemental
hereto otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of the execution of this instrument.
“Authenticating Agent” means
an authenticating agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to Section 2.10.
“Bankruptcy Law” means Title
11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board of Directors” means
the Board of Directors (or the functional equivalent thereof) of the Company or any duly authorized committee of such Board.
“Board Resolution” means a
copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification and delivered to the Trustee.
“Business Day” means, with
respect to any series of Securities, any day other than a day on which federal or state banking institutions in the Borough of Manhattan,
the City of New York, or at a place of payment, are authorized or obligated by law, executive order or regulation to close.
“Commission” means the Securities
and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing
such duties at such time.
“Company” means BrainStorm
Cell Therapeutics Inc., a corporation duly organized and existing under the laws of the State of Delaware, and, subject to the provisions
of Article 10, shall also include its successors and assigns.
“Company Order” means a written
order of the Company, signed by an Officer of the Company, and delivered to the Trustee.
“Corporate Trust Office” means
the office of the Trustee at which, at any particular time, its corporate trust business shall be administered, which office at the date
hereof is located at .
“Custodian” means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Defaulted Interest” has the
meaning set forth in Section 2.03.
“Depositary” means, with respect
to Securities of any series for which the Company shall determine that such Securities will be issued as a Global Security, The Depository
Trust Company, another clearing agency, or any successor registered as a clearing agency under the Exchange Act, or other applicable statute
or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01 or 2.11.
“Event of Default” means, with
respect to Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any, therein
designated.
“Exchange Act” means the United
States Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Commission thereunder.
“Global Security” means a Security
issued to evidence all or a part of any series of Securities which is executed by the Company and authenticated and delivered by the Trustee
to the Depositary or pursuant to the Depositary’s instruction, all in accordance with the Indenture, which shall be registered in
the name of the Depositary or its nominee.
“Governmental Obligations”
means securities that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is
pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America that,
in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated maturity of the applicable
series of Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian for
the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation
evidenced by such depositary receipt.
“herein”, “hereof”
and “hereunder”, and other words of similar import, refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
“Indenture” means this instrument
as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered
into in accordance with the terms hereof and shall include the terms of particular series of Securities established as contemplated by
Section 2.01.
“Interest Payment Date”, when
used with respect to any installment of interest on a Security of a particular series, means the date specified in such Security or in
a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment of interest
with respect to Securities of that series is due and payable.
“Officer” means, with respect
to the Company, the Chairman of the Board of Directors, a Chief Executive Officer, a President, a Chief Financial Officer, a Chief Operating
Officer, any Executive Vice President, any Senior Vice President, any Vice President, the Treasurer or any Assistant Treasurer, the Controller
or any Assistant Controller or the Secretary or any Assistant Secretary.
“Officer’s Certificate”
means a certificate signed by any Officer. Each such certificate shall include the statements provided for in Section 13.07, if
and to the extent required by the provisions thereof.
“Opinion of Counsel” means
an opinion in writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company, that is
delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section
13.07, if and to the extent required by the provisions thereof.
“Outstanding”, when used with
reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all Securities
of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled
by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously been canceled;
(b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary amount shall
have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated
in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if such Securities or
portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided
in Article 3, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities in lieu
of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person” means any individual,
corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated organization,
any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor Security” of any
particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost, destroyed
or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible Officer” when
used with respect to the Trustee means any officer within the corporate trust department of the Trustee, including any vice president,
assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate
trust matter relating to this Indenture is referred because of such person’s knowledge of and familiarity with the particular subject
and, in each case, who shall have direct responsibility for the administration of this Indenture (which, for the avoidance of doubt, includes
without limitation any supplemental indenture hereto).
“Securities” has the meaning
stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Securityholder”, “holder”,
“registered holder”, or other similar term, means the Person or Persons in whose name or names a particular Security
is registered on the Security Register kept for that purpose in accordance with the terms of this Indenture.
“Security Register” and “Security
Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary” means, with respect
to any Person:
(1)
any corporation or company a majority of whose capital stock with voting power, under ordinary circumstances, to elect directors
is, at the date of determination, directly or indirectly, owned by such Person (a “subsidiary”), by one or more subsidiaries
of such Person or by such Person and one or more subsidiaries of such Person;
(2)
a partnership in which such Person or a subsidiary of such Person is, at the date of determination, a general partner of
such partnership; or
(3)
any partnership, limited liability company or other Person in which such Person, a subsidiary of such Person or such Person
and one or more subsidiaries of such Person, directly or indirectly, at the date of determination, have (x) at least a majority ownership
interest or (y) the power to elect or appoint or direct the election or appointment of the managing partner or member of such Person or,
if applicable, a majority of the directors or other governing body of such Person.
“Trustee” means , and, subject
to the provisions of Article 7, shall also include its successors and assigns, and, if at any time there is more than one Person
acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with respect
to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture Act” means
the Trust Indenture Act of 1939, as amended and in effect from time to time.
“U.S. dollar” or “$”
means the lawful currency of the United States of America.
Article 2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01
Designation and Terms of Securities.
(a)
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time
authorized by or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance
of Securities of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate
or established in one or more indentures supplemental hereto:
(1)
the title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2)
any limit upon the aggregate principal amount of the Securities of that series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of that series);
(3)
the date or dates on which the principal of the Securities of the series is payable;
(4)
if the price (expressed as a percentage of the aggregate principal amount thereof) at which such Securities will be issued
is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration
of the maturity thereof, or if applicable, the portion of the principal amount of such Securities that is convertible into another security
or the method by which any such portion shall be determined;
(5)
the rate or rates at which the Securities of the series shall bear interest or the manner of calculation of such rate or
rates, if any;
(6)
the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest will be payable
or the manner of determination of such Interest Payment Dates, the place(s) of payment, and the record date for the determination of holders
to whom interest is payable on any such Interest Payment Dates or the manner of determination of such record dates;
(7)
the right, if any, to extend the interest payment periods and the duration of such extension;
(8)
the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the
series may be redeemed, converted or exchanged, in whole or in part;
(9)
the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund, mandatory
redemption, or analogous provisions (including payments made in cash in satisfaction of future sinking fund obligations) or at the option
of a holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon which, Securities
of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(10)
the form of the Securities of the series including the form of the Certificate of Authentication for such series;
(11)
if other than minimum denominations of one thousand U.S. dollars ($1,000) or any integral multiple of $1,000 thereof, the
denominations in which the Securities of the series shall be issuable;
(12)
any and all other terms (including terms, to the extent applicable, relating to any auction or remarketing of the Securities
of that series and any security for the obligations of the Company with respect to such Securities) with respect to such series (which
terms shall not be inconsistent with the terms of this Indenture, as amended by any supplemental indenture) including any terms which
may be required by or advisable under United States laws or regulations or advisable in connection with the marketing of Securities of
that series;
(13)
whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities;
the terms and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual
Securities; and the Depositary for such Global Security or Securities;
(14)
whether the Securities will be convertible into or exchangeable for shares of common stock, preferred stock or other securities
of the Company or any other Person and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable,
including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional
(at the Company’s option or the holders’ option) conversion or exchange features, and the applicable conversion or exchange
period;
(15)
if other than the full principal amount thereof, the portion of the principal amount of Securities of the series which shall
be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(16)
any additional or alternative Events of Default;
(17)
additional or alternative covenants (which may include, among other restrictions, restrictions on the Company’s ability
or the ability of the Company’s Subsidiaries to: incur additional indebtedness; issue additional securities; create liens; pay dividends
or make distributions in respect of the capital stock of the Company or the Company’s Subsidiaries; redeem capital stock; place
restrictions on the Company’s Subsidiaries’ ability to pay dividends, make distributions or transfer assets; make investments
or other restricted payments; sell or otherwise dispose of assets; enter into sale-leaseback transactions; engage in transactions with
stockholders or affiliates; issue or sell stock of the Company’s Subsidiaries; or effect a consolidation or merger) or financial
covenants (which may include, among other financial covenants, financial covenants that require the Company and its Subsidiaries to maintain
specified interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios) provided for with respect to the Securities
of the series;
(18)
the currency or currencies, including composite currencies, in which payment of the principal of (and premium, if any) and
interest, if any, on such Securities shall be payable (if other than the currency of the United States of America), which unless otherwise
specified shall be the currency of the United States of America as at the time of payment is legal tender for payment of public or private
debts;
(19)
if the principal of (and premium, if any) or interest, if any, on such Securities is to be payable, at the election of the
Company or any holder thereof, in a coin or currency other than that in which such Securities are stated to be payable, then the period
or periods within which, and the terms and conditions upon which, such election may be made;
(20)
whether interest will be payable in cash or additional Securities at the Company’s or the Securityholders’ option
and the terms and conditions upon which the election may be made;
(21)
the terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium,
if any and principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for
federal tax purposes;
(22)
additional or alternative provisions, if any, related to defeasance and discharge of the offered Securities;
(23)
the applicability of any guarantees;
(24)
any restrictions on transfer, sale or assignment of the Securities of the series; and (25) any other terms of the series.
All Securities of any one series shall be substantially
identical except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures supplemental hereto.
If any of the terms of the series are established
by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the
secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate
of the Company setting forth the terms of the series.
Securities of any particular series may be issued
at various times, with different dates on which the principal or any installment of principal is payable, with different rates of interest,
if any, or different methods by which rates of interest may be determined, with different dates on which such interest may be payable
and with different redemption dates.
Section 2.02
Form of Securities and Trustee’s Certificate.
The Securities of any series and the Trustee’s
certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one or more
indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officer’s Certificate, and they may have
such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on
which Securities of that series may be listed, or to conform to usage.
Section 2.03
Denominations: Provisions for Payment.
The Securities shall be issuable as registered
Securities and in the minimum denominations of one thousand U.S. dollars ($1,000) or any integral multiple of $1,000 thereof, subject
to Section 2.01(a)(11). The Securities of a particular series shall bear interest payable on the dates and at the rate specified with
respect to that series. Subject to Section 2.01(a)(18), the principal of and the interest on the Securities of any series, as well
as any premium thereon in case of redemption thereof prior to maturity, shall be payable in the coin or currency of the United States
of America that at the time is legal tender for public and private debt, at the office or agency of the Company maintained for that purpose.
Each Security shall be dated the date of its authentication. Interest on the Securities shall be computed on the basis of a 360-day year
composed of twelve 30-day months.
The interest installment on any Security that
is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid to the
Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business on the regular record
date for such interest installment. In the event that any Security of a particular series or portion thereof is called for redemption
and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment
Date, interest on such Security will be paid upon presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause (1) or clause (2) below:
(1)
The Company may elect to make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities
(or their respective Predecessor Securities) are registered at the close of business on a special record date for the payment of such
Defaulted Interest, which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Company shall fix
a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date
of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Company
shall promptly notify the Trustee in writing of such special record date and in such notice, instruct the Trustee to send such notice
to holders, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be sent electronically or mailed, first class postage prepaid, to each Securityholder at his or her address
as it appears in the Security Register (as hereinafter defined), not less than 10 days prior to such special record date. Notice of the
proposed payment of such Defaulted Interest and the special record date therefor having been sent as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered on such special
record date.
(2)
The Company may make or cause to be made payment of any Defaulted Interest on any Securities in any other lawful manner
not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution
or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof,
the term “regular record date” as used in this Section with respect to a series of Securities and any Interest Payment Date
for such series shall mean either (i) the fifteenth day of the month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of a month,
or (ii) the first day of the month in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section,
each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security of such
series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04
Execution and Authentications.
The Securities shall be signed on behalf of the
Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature of
any Person who shall have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated and delivered
or disposed of such Person shall have ceased to be such an officer of the Company. The Securities may contain such notations, legends
or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication by the Trustee.
A Security shall not be valid until authenticated
manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this
Indenture. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery
of such Securities, signed by an Officer, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities.
In authenticating such Securities and accepting
the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall receive, and (subject to Section
7.01) shall be fully protected in conclusively relying upon, an Officer’s Certificate and an Opinion of Counsel stating that
the form and terms thereof have been established in conformity with the provisions of this Indenture, that all conditions precedent in
connection with the issuance, authentication and delivery of such Securities have been met and that such Securities are legal, valid and
binding obligations against the Company, enforceable against it in accordance with its terms, subject to customary exceptions and qualifications.
The Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05
Registration of Transfer and Exchange.
(a)
Securities of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for
such purpose, for other Securities of such series of authorized denominations, and for a like aggregate principal amount, upon payment
of a sum sufficient to cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of
any Securities so surrendered for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall
deliver in exchange therefor the Security or Securities of the same series that the Securityholder making the exchange shall be entitled
to receive, bearing numbers not contemporaneously outstanding.
(b)
The Company shall keep, or cause to be kept, at its office or agency designated for such purpose a register or registers
(herein referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe,
the Company shall register the Securities and the transfers of Securities as in this Article provided and which at all reasonable times
shall be open for inspection by the Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein
provided shall be appointed as authorized by Board Resolution (the “Security Registrar”).
Upon surrender for transfer of any Security at
the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and such office
or agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series as the Security presented
for a like aggregate principal amount.
All Securities presented or surrendered for exchange
or registration of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the Security Registrar)
by a written instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar, duly executed by the
registered holder or by such holder’s duly authorized attorney in writing.
(c)
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate,
or established in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration
of transfer of Securities, or issue of new Securities in case of partial redemption of any series, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06,
Section 3.03(b) and Section 9.04 not involving any transfer.
(d)
The Company shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding Securities
of the same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or exchange any
Securities of any series or portions thereof called for redemption, other than the unredeemed portion of any such Securities being redeemed
in part. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Security (including any transfers between or among depositary participants or beneficial
owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
Neither the Trustee nor any Agent shall have any
responsibility or liability for any actions taken or not taken by the Depositary.
Section 2.06
Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall, upon receipt of a Company Order, authenticate and deliver, temporary Securities
(printed, lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the form of
the definitive Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed by the Company
and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive
Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series and
thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to the holders), at the
office or agency of the Company designated for the purpose, and the Trustee shall, upon receipt of a Company Order, authenticate and such
office or agency shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities
of such series, unless the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until
further notice from the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under
this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section 2.07
Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall
become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and upon receipt
of a Company Order the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series, bearing a number
not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft of the
applicant’s Security and of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same
upon receipt of a Company Order. Upon the issuance of any substituted Security, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses
of the Trustee) connected therewith.
In case any Security that has or is about to become
due and payable, whether upon maturity of the Securities of a series or upon declaration or otherwise shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish to the Company and the Trustee such
security or indemnity as they may require to save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction
of the Company and the Trustee of the destruction, loss or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant to
the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not the mutilated, destroyed,
lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities shall be held and
owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights or remedies, notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
Section 2.08
Cancellation.
All Securities surrendered for the purpose of
payment, redemption, exchange or registration of transfer shall, if surrendered to the Company or any paying agent, be delivered to the
Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof
except as expressly required or permitted by any of the provisions of this Indenture. On written request of the Company at the time of
such surrender, the Trustee shall deliver to the Company evidence of cancellation for such canceled Securities held by the Trustee. The
Trustee shall cancel and dispose of canceled Securities in accordance with its standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any of the Securities, however, such acquisition shall not operate as a redemption
or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.09
Benefits of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities
(and, with respect to the provisions of Article 14, the holders of any indebtedness of the Company to which the Securities of any
series are subordinated) any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the
holders of the Securities (and, with respect to the provisions of Article 14, the holders of any indebtedness of the Company to
which the Securities of any series are subordinated).
Section 2.10
Authenticating Agent.
So long as any of the Securities of any series
remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall have the right
to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued
upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this Indenture to the
authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating Agent for such series. Each
Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital and surplus, as most recently
reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized or in which it is doing business
to conduct a trust business, and that is otherwise authorized under such laws to conduct such business and is subject to supervision or
examination by federal or state authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance with these
provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign
by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request by the Company
shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the
Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall
become vested with all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating Agent pursuant
hereto.
Section 2.11
Global Securities.
(a)
If the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued
as a Global Security, then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver,
a Global Security that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the
Outstanding Securities of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered
by the Trustee to the Depositary or held by it, pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially
to the following effect: “Except as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred,
in whole but not in part, only to another nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
(b)
Notwithstanding the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but
not in part and in the manner provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor
Depositary for such series selected or approved by the Company or to a nominee of such successor Depositary.
(c)
If at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue
as Depositary for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under
the Exchange Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default
has occurred and is continuing and the Company has received a request from the Depositary or from the Trustee, this Section 2.11
shall no longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee
will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security.
In addition, the Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security
and that the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company
will execute and, subject to Section 2.04, the Trustee, upon receipt of an Officer’s Certificate and a Company Order evidencing
such determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series
in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive registered form without
coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form
issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee
in writing. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities are
so registered.
Article 3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01
Redemption.
The Company may redeem the Securities of any series
issued hereunder on and after the dates and in accordance with the terms established for such series pursuant to Section 2.01 hereof.
Section 3.02
Notice of Redemption.
(a)
In case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities
of any series in accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company
shall, or shall cause the Trustee (upon 5 Business Days written notice, unless a shorter period shall be satisfactory to the Trustee)
to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, electronically or by first class
postage prepaid mail, a notice of such redemption not less than 15 days and not more than 90 days, except that redemption notices may
be sent more than 90 days prior to the redemption date if the notice is issued in connection with a defeasance of the Securities or a
satisfaction and discharge, before the date fixed for redemption of that series to such holders (with a copy to the Trustee) at their
last addresses as they shall appear upon the Security Register, unless a shorter period is specified in the Securities to be redeemed.
Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give such notice to the holder of any Security of any series designated for redemption
in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities
of such series or any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s
Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the
date fixed for redemption, if applicable, any record date with respect to such redemption and the redemption price at which Securities
of that series are to be redeemed, and shall state that payment of the redemption price of such Securities to be redeemed will be made
at the office or agency of the Company, upon presentation and surrender of such Securities, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, that from and after said date interest will cease to accrue and that the redemption
is from a sinking fund, if such is the case. If less than all the Securities of a series are to be redeemed, the notice to the holders
of Securities of that series to be redeemed in part shall specify the particular Securities to be so redeemed.
In case any Security is to be redeemed in part
only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed, and shall state
that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series in principal amount
equal to the unredeemed portion thereof will be issued.
(b)
If less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 20 days’
notice (unless a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as
it shall deem appropriate and fair in its discretion (and subject to the applicable procedures of the Depositary) and that may provide
for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof) of the principal
amount of such Securities of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify the
Company in writing of the numbers of the Securities to be redeemed, in whole or in part. The Company may, if and whenever it shall so
elect, by delivery of instructions signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or any part
of the Securities of a particular series for redemption and to send notice of redemption in the manner set forth in this Section, such
notice to be in the name and at the expense of the Company. In any case in which notice of redemption is to be sent by the Trustee or
any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying agent,
as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable
the Trustee or such paying agent to give any notice by mail that may be required under the provisions of this Section.
Section 3.03
Payment Upon Redemption.
(a)
If the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities
of the series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice
at the applicable redemption price, together with interest accrued to the date fixed for redemption and interest on such Securities or
portions of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment
of such redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such
Securities on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid and
redeemed at the applicable redemption price for such series, together with interest accrued thereon to the date fixed for redemption (but
if the date fixed for redemption is an interest payment date, the interest installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date pursuant to Section 2.03).
(b)
Upon presentation of any physical Security of such series that is to be redeemed in part only, the Company shall execute
and the Trustee shall authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the
expense of the Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion
of the Security so presented.
Section 3.04
Sinking Fund.
The provisions of Sections 3.04, 3.05
and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified as
contemplated by Section 2.01 for Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any
payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities
of any series as provided for by the terms of Securities of such series.
Section 3.05
Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities
of a series and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms of such series, provided that such Securities have
not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the redemption price
specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be
reduced accordingly.
Section 3.06
Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund
payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to
the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to
the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities of that series pursuant
to Section 3.05 and the basis for such credit and will, together with such Officer’s Certificate, deliver to the Trustee
any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities
to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 and cause notice of the redemption thereof
to be given in the name of and at the expense of the Company in the manner provided in Section 3.02. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 3.03.
Article 4
COVENANTS
Section 4.01
Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or cause
to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and place and in the manner
provided herein and established with respect to such Securities. Payments of principal on the physical Securities may be made at the time
provided herein and established with respect to such Securities by U.S. dollar check drawn on and mailed to the address of the Securityholder
entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account if such
Securityholder shall have furnished wire instructions to the Trustee no later than 15 days prior to the relevant payment date. Payments
of interest on the Securities may be made at the time provided herein and established with respect to such Securities by U.S. dollar check
mailed to the address of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire
transfer to an account in the United States if such Securityholder shall have furnished wire instructions in writing to the Security Registrar
and the Trustee no later than 15 days prior to the relevant payment date.
Section 4.02
Maintenance of Office or Agency.
So long as any series of the Securities remain
Outstanding, the Company agrees to maintain an office or agency with respect to each such series and at such other location or locations
as may be designated as provided in this Section 4.02, where (i) Securities of that series may be presented for payment, (ii) Securities
of that series may be presented as herein above authorized for registration of transfer and exchange, and (iii) notices in respect of
the Securities of that series and this Indenture may be given or made, such designation to continue with respect to such office or agency
until the Company shall, by written notice in an Officer’s Certificate and delivered to the Trustee, designate some other office
or agency for such purposes or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations and notices may be made at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations and notices; provided, however, the
Trustee shall not be considered an agent of the Company for service of process.
Section 4.03
Paying Agents.
(a)
If the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee,
the Company will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with
the Trustee, subject to the provisions of this Section:
(1)
that it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest
on the Securities of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in
trust for the benefit of the Persons entitled thereto;
(2)
that it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make
any payment of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3)
that it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon
the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent;
(4)
that upon any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition
or judicial proceedings affecting the Company, the Trustee will automatically be the Paying Agent; and
(5)
that it will perform all other duties of paying agent as set forth in this Indenture.
(b)
If the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each
due date of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on
Securities of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company
shall have one or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if
any) or interest on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c)
Notwithstanding anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section
is subject to the provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust
by the Company or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums
were held by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or
such paying agent shall be released from all further liability with respect to such money.
(d)
The Company initially appoints the Trustee at its Corporate Trust Office as its paying agent with respect to the Securities.
Section 4.04
Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill
a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all
times be a Trustee hereunder.
Section 4.05
Compliance with Consolidation Provisions.
The Company will not, while any of the Securities
remain Outstanding, consolidate with or merge into any other Person, in either case where the Company is not the survivor of such transaction,
or sell or convey all or substantially all of its property to any other Person unless the provisions of Article 10 hereof are complied
with.
Article 5
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01
Company to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish or cause to be furnished
to the Trustee (a) within 5 days after each regular record date (as defined in Section 2.03) a list, in such form as the Trustee
may reasonably require, of the names and addresses of the holders of each series of Securities as of such regular record date, provided
that the Company shall not be obligated to furnish or cause to be furnished such list at any time that the list shall not differ in any
respect from the most recent list furnished to the Trustee by the Company and (b) at such other times as the Trustee may request in writing
within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished; provided, however, that, in either case, no such list need be furnished for
any series for which the Trustee shall be the Security Registrar.
Section 5.02
Preservation Of Information; Communications With Securityholders.
(a)
The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses
of the holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names
and addresses of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b)
The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c)
Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with
respect to their rights under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall
satisfy its obligations under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust
Indenture Act.
Section 5.03
Reports by the Company.
(a)
The Company covenants and agrees to provide (which delivery may be via electronic mail) to the Trustee within 30 days, after
the Company files the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) that the Company
is required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however,
the Company shall not be required to deliver to the Trustee any materials for which the Company has sought and received confidential treatment
by the Commission; and provided further, that so long as such filings by the Company are available on the Commission’s Electronic
Data Gathering, Analysis and Retrieval System (EDGAR), or Interactive Data Electronic Applications (IDEA), or any successor system, such
filings shall be deemed to have been filed with the Trustee for purposes hereof without any further action required by the Company; provided
that an electronic link to such filing, together with an electronic notice of such filing have been sent to the Trustee it being understood
that the Trustee shall have no responsibility to determine whether such filings have been made. For the avoidance of doubt, a failure
by the Company to file annual reports, information and other reports with the Commission within the time period prescribed thereof by
the Commission shall not be deemed a breach of this Section 5.03.
(b)
Delivery of reports, information and documents to the Trustee under Section 5.03 is for informational purposes only
and the information and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained
therein, or determinable from information contained therein including the Company’s compliance with any of their covenants thereunder
(as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate).
Section 5.04
Reports by the Trustee.
(a)
If required by Section 313(a) of the Trust Indenture Act, the Trustee, within sixty (60) days after each May 15, commencing
the calendar year after the year in which the first Securities are issued hereunder, shall transmit by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear upon the Security Register, a brief report dated as of such May 15, which
complies with Section 313(a) of the Trust Indenture Act.
(b)
The Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c)
A copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the
Company, with each securities exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees
to notify the Trustee in writing when any Securities become listed on any securities exchange or of any delisting thereof.
Article 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01
Events of Default.
(a)
Whenever used herein with respect to Securities of a particular series, “Event of Default” means any one or
more of the following events that has occurred and is continuing:
(1)
the Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when
the same shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of
an interest payment period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default
in the payment of interest for this purpose;
(2)
the Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as
and when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required
by any sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity of
such Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal
or premium, if any;
(3)
the Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in
this Indenture or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a
covenant or agreement that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other
than such series) for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and
stating that such notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee or
to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time Outstanding;
(4)
the Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the
entry of an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property or (iv) makes a general assignment for the benefit of its creditors; or
(5)
a court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in
an involuntary case, (ii) appoints a Custodian of the Company for all or substantially all of its property or (iii) orders the liquidation
of the Company, and the order or decree remains unstayed and in effect for 90 days.
(b)
In each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal
of all the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest
on all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall
be immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of and accrued
and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without any declaration or
other act on the part of the Trustee or the holders of the Securities.
(c)
At any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series
shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company
has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of that series
and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise than by acceleration
(with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per annum expressed in the Securities of that series to the date of such payment or deposit)
and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture with respect
to such series, other than the nonpayment of principal on (and premium, if any, on) and accrued and unpaid interest on Securities of that
series that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.06.
No such rescission and annulment shall extend
to or shall affect any subsequent default or impair any right consequent thereon.
(d)
In case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture
and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall
have been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the Company
and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee shall continue as though no such proceedings had been taken.
Section 6.02
Collection of Indebtedness and Suits for Enforcement by Trustee.
(a)
The Company covenants that if an Event of Default described in Section 6.01(a) or 6.01(b) shall have occurred with respect
to the Securities of any series, the Company will pay to the Trustee, for the benefit of the holders of the Securities of that series,
the whole amount that then shall have been become due and payable on all such Securities for principal (and premium, if any) or interest,
or both, as the case may be, with interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest
is enforceable under applicable law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series;
and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable
to the Trustee under Section 7.06.
(b)
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of
an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the
sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment
or final decree against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to
be payable in the manner provided by law or equity out of the property of the Company or other obligor upon the Securities of that series,
wherever situated.
(c)
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition
or judicial proceedings affecting the Company, or its creditors or property, irrespective of whether the Trustee shall have made any demand
pursuant to this Section 6.02, the Trustee shall have power to intervene in such proceedings and take any action therein that may be permitted
by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim and other papers and documents
as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities of such series allowed for
the entire amount due and payable by the Company under the Indenture at the date of institution of such proceedings and for any additional
amount that may become due and payable by the Company after such date, and to collect and receive any moneys or other property payable
or deliverable on any such claim, and to distribute the same after the deduction of the amount payable to the Trustee under Section
7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the holders of Securities
of such series to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly
to such Securityholders, to pay to the Trustee any amount due it under Section 7.06.
(d)
All rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to
Securities of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof
at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due
under Section 7.06, be for the ratable benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder, the
Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained in the Indenture or in aid of the exercise of any power granted
in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities of that series or the rights of any holder thereof or to authorize the Trustee to vote in respect
of the claim of any Securityholder in any such proceeding.
Section 6.03
Application of Moneys Collected.
Any moneys or properties collected by the Trustee
pursuant to this Article with respect to a particular series of Securities shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium, if any) or interest, upon presentation
of the Securities of that series, and notation thereon of the payment, if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all indebtedness
of the Company to which such series of Securities is subordinated to the extent required by Section 7.06 and any subordination
terms of the series specified as contemplated by Article 14;
SECOND: To the payment of the amounts then
due and unpaid upon Securities of such series for principal (and premium, if any) and interest, in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable
on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder,
if any, to the Company or any other Person lawfully entitled thereto.
Section 6.04
Limitation on Suits.
No holder of any Security of any series shall
have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder,
unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof
with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided; (ii) the holders of not less
than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii) such holder or holders shall have offered to
the Trustee such indemnity reasonably satisfactory to it as it may require against the costs, expenses, claims and liabilities to be incurred
therein or thereby; (iv) the Trustee for 90 days after its receipt of such notice, request and offer of indemnity, shall have failed to
institute any such action, suit or proceeding and (v) during such 90 day period, the holders of a majority in principal amount of the
Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein to the
contrary or any other provisions of this Indenture, the right of any holder of any Security to receive payment of the principal of (and
premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed in such Security (or
in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment on or after such respective
dates or redemption date, shall not be impaired or affected without the consent of such holder and by accepting a Security hereunder it
is expressly understood, intended and covenanted by the taker and holder of every Security of such series with every other such taker
and holder and the Trustee, that no one or more holders of Securities of such series shall have any right in any manner whatsoever by
virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the holders of any other of such
Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture
(it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly
prejudicial to such holders), except in the manner herein provided and for the equal, ratable and common benefit of all holders of Securities
of such series. For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Section 6.05
Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a)
Except as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to
the Securityholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available
to the Trustee or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established with respect to such Securities.
(b)
No delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon
any Event of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver
of any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by
this Article or by law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee or by the Securityholders.
Section 6.06
Control by Securityholders.
The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04, shall have the right
to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to such series; provided, however, that such direction shall not be in conflict
with any rule of law or with this Indenture or subject the Trustee in its sole discretion to personal liability. The Trustee shall have
the right to decline to follow any such direction if the Trustee in good faith shall determine that the proceeding so directed, subject
to the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial
to the Securityholders not involved in the proceeding. Prior to taking any action under this Indenture, the Trustee shall be entitled
to indemnity or security satisfactory to it against loss, liability or expense that may be caused by taking such action. The holders of
a majority in aggregate principal amount of the Securities of any series at the time Outstanding affected thereby, determined in accordance
with Section 8.04, may on behalf of the holders of all of the Securities of such series waive any past default in the performance
of any of the covenants contained herein or established pursuant to Section 2.01 with respect to such series and its consequences,
except a default in the payment of the principal of, or premium, if any, or interest on, any of the Securities of that series as and when
the same shall become due by the terms of such Securities otherwise than by acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal and any premium has been deposited with the Trustee (in accordance
with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes of this Indenture
and the Company, the Trustee and the holders of the Securities of such series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 6.07
Undertaking to Pay Costs.
All parties to this Indenture agree, and each
holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant
in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of Securityholders,
holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or to any suit instituted by any Securityholder
for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this Indenture.
Article 7
CONCERNING THE TRUSTEE
Section 7.01
Certain Duties and Responsibilities of Trustee.
(a)
The Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing
of all Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect
to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants
shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred
(that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person’s own affairs.
(b)
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(1)
prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving
of all such Events of Default with respect to that series that may have occurred:
(A)
the duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the
performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(B)
in the absence of willful misconduct on the part of the Trustee, the Trustee may with respect to the Securities of such
series conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein);
(2)
the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3)
the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance
with the direction of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding
relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture with respect to the Securities of that series; and
(4)
none of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur personal or financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there
is reasonable ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably assured to it.
Section 7.02
Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a)
The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document or other evidence of
indebtedness believed by it to be genuine and to have been signed or presented by the proper party or parties. The Trustee need not investigate
any fact or matter stated in the document. The Trustee shall receive and retain financial reports and statements of the Company to the
extent provided herein, but shall have no duty to review or analyze such reports or statements to determine compliance with covenants
or other obligations of the Company;
(b)
Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution
or an instrument signed in the name of the Company by any authorized Officer of the Company (unless other evidence in respect thereof
is specifically prescribed herein);
(c)
The Trustee may consult with counsel of its selection and the advice of such counsel or, if requested, any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith
and in reliance thereon;
(d)
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have
offered (and if requested, provided) to the Trustee security or indemnity satisfactory to it against the costs, expenses, claims and liabilities
that may be incurred therein or thereby;
(e)
The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(f)
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents or other
evidence of indebtedness, unless requested in writing so to do by the holders of not less than a majority in principal amount of the Outstanding
Securities of the particular series affected thereby (determined as provided in Section 8.04); provided, however,
that if the payment within a reasonable time to the Trustee of the costs, expenses, claims 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 indemnity or security satisfactory to it against such costs, expenses, claims
or liabilities as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Company or, if paid
by the Trustee, shall be repaid by the Company upon demand;
(g)
The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h)
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances;
(i)
In no event shall the Trustee be responsible or liable for special, punitive, indirect, or consequential loss or damage
of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action;
(j)
The permissive rights of the Trustee enumerated herein shall not be construed as duties;
(k)
The Trustee may request that the Company 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; and
(l)
The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
In addition, the Trustee shall not be deemed to
have knowledge of any Default or Event of Default until a Responsible Officer of the Trustee shall have received written notification
in the manner set forth in this Indenture, and such notice references the Securities and this Indenture or a Responsible Officer of the
Trustee shall have obtained actual knowledge.
Section 7.03
Trustee Not Responsible for Recitals or Issuance or Securities.
(a)
The recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes
no responsibility for the correctness of the same.
(b)
The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c)
The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds
of such Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture
or established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the
Trustee.
Section 7.04
May Hold Securities.
The Trustee or any paying agent or Security Registrar,
in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not
Trustee, paying agent or Security Registrar.
Section 7.05
Moneys Held in Trust.
Subject to the provisions of Section 11.05,
all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for
interest on any moneys received by it hereunder except such as it may agree in writing with the Company to pay thereon.
Section 7.06
Compensation and Reimbursement.
(a)
The Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such compensation (which shall
not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as the Company and the Trustee
may from time to time agree in writing, for all services rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided herein, the Company
will pay or reimburse the Trustee upon its request for all reasonable and documented expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable and documented fees and the expenses
and disbursements of its counsel and of all Persons not regularly in its employ), except any such expense, disbursement or advance as
may arise from its negligence or willful misconduct. The Company also covenants to indemnify the Trustee (and its officers, agents, directors
and employees) for, and to hold it harmless against, any documented loss, liability or expense, including reasonable and documented attorneys’
fees, incurred without negligence or willful misconduct on the part of the Trustee and arising out of or in connection with the acceptance
or administration of this trust, including the reasonable and documented costs and expenses of defending itself against any claim of liability
in the premises (whether asserted by the Company, 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.
(b)
The obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee
for reasonable expenses, disbursements and advances shall constitute indebtedness of the Company to which the Securities are subordinated.
Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the benefit of the holders of particular Securities.
(c)
To ensure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities
on all funds or property held or collected by the Trustee, except that held in trust to pay principal of, premium, if any, or interest
on particular Securities. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section
6.01(a)(4) or (5), the expenses (including the reasonable fees and expenses of its counsel) and the compensation for services
in connection therewith are to constitute expenses of administration under any Bankruptcy Law. The provisions of this Section 7.06
shall survive the termination of this Indenture and the earlier resignation or removal of the Trustee.
Section 7.07
Reliance on Officer’s Certificate or Opinion of Counsel.
Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of negligence or willful misconduct on the part of the Trustee,
be deemed to be conclusively proved and established by an Officer’s Certificate and Opinion of Counsel delivered to the Trustee
and such certificate and opinion, in the absence of negligence or willful misconduct on the part of the Trustee, shall be full warrant
to the Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.08
Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any “conflicting
interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall in all respects comply
with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09
Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect
to the Securities issued hereunder which shall at all times be a corporation organized and doing business under the laws of the United
States of America or any state or territory thereof or of the District of Columbia, or a corporation or other Person permitted to act
as trustee by the Commission, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of
at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state, territorial, or District
of Columbia authority.
If such corporation or other Person publishes
reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such corporation or other Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor may any Person directly
or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with
the effect specified in Section 7.10.
Section 7.10
Resignation and Removal; Appointment of Successor.
(a)
The Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series
by giving written notice thereof to the Company and by transmitting notice of resignation by electronic mail, or by first class postage
prepaid mail, to the Securityholders of such series, as their names and addresses appear upon the Security Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee with respect to Securities of such series by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after
the mailing of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder
of a Security or Securities for at least six months may on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint
a successor trustee.
(b)
In case at any time any one of the following shall occur: (i) the Trustee shall fail to comply with the provisions of Section
7.08 after written request therefor by the Company or by any Securityholder who has been a bona fide holder of a Security or Securities
for at least six months; or (ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall
fail to resign after written request therefor by the Company or by any such Securityholder; or (iii) the Trustee shall become incapable
of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or
of its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation; then, in any such case, the Company may remove the Trustee
with respect to all Securities and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months may, on behalf of that holder and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c)
The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any
time remove the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for
such series with the consent of the Company.
(d)
Any resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series
pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided
in Section 7.11.
(e)
Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more
series or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11
Acceptance of Appointment By Successor.
(a)
In case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee
so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor trustee, such retiring Trustee shall, upon full payment of any amount then due it pursuant to Section
7.06, execute and deliver an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor trustee all property and money held by such retiring Trustee hereunder.
(b)
In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute
and deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such
successor trustee relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee
and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment of such successor
trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations
vested in the Trustee under this Indenture, and each such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but, on request of the Company or any successor trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property
and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such
successor trustee relates.
(c)
Upon request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d)
No successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be
qualified and eligible under this Article.
(e)
Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of
the succession of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear
upon the Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section 7.12
Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, including the administration
of the trust created by this Indenture, shall be the successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without the execution
or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13
Preferential Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of
the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14
Notice of Default.
If any Event of Default occurs and is continuing
and if such Event of Default is actually known to a Responsible Officer of the Trustee, the Trustee shall send to each Securityholder
in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Event of Default within the later
of 90 days after it occurs and 30 days after it is actually known to a Responsible Officer of the Trustee or written notice of it is received
by the Trustee, unless such Event of Default has been cured; provided, however, that, except in the case of a default in
the payment of the principal of (or premium, if any) or interest on any Security, the Trustee shall be protected in withholding such notice
if and so long as it in good faith determines that the withholding of such notice is in the interest of the Securityholders.
Article 8
CONCERNING THE SECURITYHOLDERS
Section 8.01
Evidence of Action by Securityholders.
Whenever in this Indenture it is provided
that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular series may take
any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action),
the fact that at the time of taking any such action the holders of such majority or specified percentage of that series have joined therein
may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders of Securities of that series
in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders
of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option,
as evidenced by an Officer’s Certificate, fix in advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other
action may be given before or after the record date, but only the Securityholders of record at the close of business on the record date
shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of Outstanding
Securities of that series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver
or other action, and for that purpose the Outstanding Securities of that series shall be computed as of the record date; provided,
however, that no such authorization, agreement or consent by such Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
Section 8.02
Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and proof
of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a)
The fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable
to the Trustee.
(b)
The ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security
Registrar thereof. The Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary.
Section 8.03
Who May be Deemed Owners.
Prior to the due presentment for registration
of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person in whose
name such Security shall be registered upon the books of the Security Registrar as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to Section 2.03) interest
on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor any Security Registrar shall
be affected by any notice to the contrary.
Section 8.04
Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite
aggregate principal amount of Securities of a particular series have concurred in any direction, consent, demand, authorization, notice
or waiver under this Indenture, the Securities of that series that are owned by the Company or any other obligor on the Securities of
that series or by any Person directly or indirectly controlling or controlled by or under common control with the Company or any other
obligor on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such determination,
except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver,
only Securities of such series that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. The Securities
so owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall establish
to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such other obligor.
In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05
Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing
to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage in aggregate
principal amount of the Securities of a particular series specified in this Indenture in connection with such action, any holder of a
Security of that series that is shown by the evidence to be included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke such action so far
as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall be conclusive and binding upon
such holder and upon all future holders and owners of such Security, and of any Security issued in exchange therefor, on registration
of transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made upon such Security. Any
action taken by the holders of the majority or percentage in aggregate principal amount of the Securities of a particular series specified
in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the holders of all the
Securities of that series.
Article 9
SUPPLEMENTAL INDENTURES
Section 9.01
Supplemental Indentures Without the Consent of Securityholders.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent of the Securityholders at any
time Outstanding, for one or more of the following purposes:
(a)
to cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b)
to comply with Article 10;
(c)
to provide for uncertificated Securities in addition to or in place of certificated Securities;
(d)
to add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of
all or any series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than
all series of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for
the benefit of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e)
to add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes
of issue, authentication, and delivery of Securities, as herein set forth;
(f)
to make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g)
to provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided
in Section 2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or
any series of Securities, or to add to the rights of the holders of any series of Securities;
(h)
to evidence and provide for the acceptance of appointment hereunder by a successor trustee or to appoint a separate trustee
with respect to any series; or
(i)
to comply with any requirements of the Commission or any successor in connection with the qualification of this Indenture
under the Trust Indenture Act.
The Trustee is hereby authorized to join with
the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions
of this Section may be executed by the Company and the Trustee without the consent of the holders of any of the Securities at the time
Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02
Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Section
8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each series affected by such supplemental
indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture
Act as then in effect) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner not covered by Section 9.01 the rights of the holders
of the Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the holders of each Security then Outstanding and affected thereby, (a) extend the fixed maturity of any Securities of
any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any
premium payable upon the redemption thereof or (b) reduce the aforesaid percentage of Securities, the holders of which are required to
consent to any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders of
any series affected thereby under this Section to approve the particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof. The Trustee shall not be obligated to enter into any such supplemental
indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 9.03
Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such series only, be and
be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes
with respect to such series.
Section 9.04
Securities Affected by Supplemental Indentures.
Securities of any series affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article or
of Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements of any securities
exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture. If the Company shall so determine,
new Securities of that series so modified as to conform, in the opinion of the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for
the Securities of that series then Outstanding.
Section 9.05
Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by
its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture
or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such supplemental indenture. The
Trustee shall receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by the terms of this Article and that all conditions precedent to the execution
of the supplemental indenture have been complied with and with respect to such Opinion of Counsel, that such supplemental indenture is
the legal, valid and binding obligation of the Company, enforceable against each of them in accordance with its terms, subject to customary
exceptions and qualifications.
Promptly after the execution by the Company and
the Trustee of any supplemental indenture pursuant to the provisions of this Article, the Company shall transmit by electronic mail, or
by first class mail, postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders
of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of the Company to mail, or
cause the mailing of, such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental
indenture.
Article 10
SUCCESSOR ENTITY
Section 10.01
Company May Consolidate, Etc.
Nothing contained in this Indenture shall prevent
any consolidation or merger of the Company with or into any other Person (whether or not affiliated with the Company) or successive consolidations
or mergers in which the Company or its successor or successors shall be a party or parties, or shall prevent any sale, conveyance, transfer
or other disposition of the property of the Company or its successor or successors as an entirety, or substantially as an entirety, to
any other corporation (whether or not affiliated with the Company or its successor or successors) authorized to acquire and operate the
same; provided, however, (a) the Company hereby covenants and agrees that, upon any such consolidation or merger (in each
case, if the Company is not the survivor of such transaction), sale, conveyance, transfer or other disposition, the due and punctual payment
of the principal of (premium, if any) and interest on all of the Securities of all series in accordance with the terms of each series,
according to their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture with
respect to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed by the Company
shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act, as then in effect)
executed and delivered to the Trustee by the entity formed by such consolidation, or into which the Company shall have been merged, or
by the entity which shall have acquired such property and (b) in the event that the Securities of any series then Outstanding are convertible
into or exchangeable for shares of common stock or other securities of the Company, such entity shall, by such supplemental indenture,
make provision so that the Securityholders of Securities of that series shall thereafter be entitled to receive upon conversion or exchange
of such Securities the number of securities or property to which a holder of the number of shares of common stock or other securities
of the Company deliverable upon conversion or exchange of those Securities would have been entitled had such conversion or exchange occurred
immediately prior to such consolidation, merger, sale, conveyance, transfer or other disposition. If the Company is not the surviving
entity of any such transaction, the Company or the continuing entity agrees to deliver to the Trustee an Officer’s Certificate and
Opinion of Counsel stating that the transaction and the supplemental indenture complies with this Section 10.01 and that all conditions
precedent herein relating to the transaction have been satisfied.
Section 10.02
Successor Entity Substituted.
(a)
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the
successor entity by supplemental indenture, executed and delivered to the Trustee, of the obligations set forth under Section 10.01
on all of the Securities of all series Outstanding, such successor entity shall succeed to and be substituted for the Company with the
same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be relieved of all obligations
and covenants under this Indenture and the Securities.
(b)
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology
and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c)
Nothing contained in this Article shall require any action by the Company in the case of a consolidation or merger of any
Person into the Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise,
of all or any part of the property of any other Person (whether or not affiliated with the Company).
Article 11
SATISFACTION AND DISCHARGE
Section 11.01
Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered
to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee for cancellation
(other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or paid as provided in Section
2.07 and Securities for whose payment money or Governmental Obligations have theretofore been deposited in trust or segregated and
held in trust by the Company and thereupon repaid to the Company or discharged from such trust, as provided in Section 11.05);
or (b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit or cause to be deposited with the Trustee
as trust funds the entire amount in moneys or Governmental Obligations or a combination thereof, sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay at maturity
or upon redemption all Securities of that series not theretofore delivered to the Trustee for cancellation, including principal (and premium,
if any) and interest due or to become due to such date of maturity or date fixed for redemption, as the case may be, and if the Company
shall also pay or cause to be paid all other sums payable hereunder with respect to such series by the Company then this Indenture shall
thereupon cease to be of further effect with respect to such series except for the provisions of Sections 2.03, 2.05, 2.07,
4.01, 4.02, 4.03 and 7.10, that shall survive until the date of maturity or redemption date, as the case may
be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter, and the Trustee, on demand of the Company
and at the cost and expense of the Company shall execute such instruments reasonably requested by the Company acknowledging satisfaction
of and discharging this Indenture with respect to such series.
Section 11.02
Discharge of Obligations.
If at any time all such Securities of a particular
series not heretofore delivered to the Trustee for cancellation or that have not become due and payable as described in Section 11.01
shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount of Governmental Obligations
sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed for redemption, as
the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the Company with respect to
such series, then after the date such moneys or Governmental Obligations, as the case may be, are deposited with the Trustee the obligations
of the Company under this Indenture with respect to such series shall cease to be of further effect except for the provisions of Sections
2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.06, 7.10 and 11.05 hereof that shall
survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall survive.
Section 11.03
Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited
with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as due, either
directly or through any paying agent (including the Company acting as its own paying agent), to the holders of the particular series of
Securities for the payment or redemption of which such moneys or Governmental Obligations have been deposited with the Trustee.
Section 11.04
Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge
of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture shall, upon
demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect
to such moneys or Governmental Obligations.
Section 11.05
Repayment to Company.
Any moneys or Governmental Obligations deposited
with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or premium, if any, or interest
on the Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities for at least two
years after the date upon which the principal of (and premium, if any) or interest on such Securities shall have respectively become due
and payable, or such other shorter period set forth in applicable escheat or abandoned or unclaimed property law, shall be repaid to the
Company on May 31 of each year or upon the Company’s request or (if then held by the Company) shall be discharged from such trust;
and thereupon the paying agent and the Trustee shall be released from all further liability with respect to such moneys or Governmental
Obligations, and the holder of any of the Securities entitled to receive such payment shall thereafter, as a general creditor, look only
to the Company for the payment thereof.
Article 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01
No Recourse.
No recourse under or upon any obligation, covenant
or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor or successor
corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture
and the obligations issued hereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, stockholders, officers or directors as such, of the Company or of any predecessor or successor
corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture
and the issuance of such Securities.
Article 13
MISCELLANEOUS PROVISIONS
Section 13.01
Effect on Successors and Assigns.
All the covenants, stipulations, promises and
agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.
Section 13.02
Actions by Successor.
Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed
with like force and effect by the corresponding board, committee or officer of any corporation that shall at the time be the lawful successor
of the Company.
Section 13.03
Surrender of Company Powers.
The Company by instrument in writing executed
by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and thereupon
such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04
Notices.
Except as otherwise expressly provided herein,
any notice, request or demand that by any provision of this Indenture is required or permitted to be given, made or served by the Trustee
or by the holders of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or served by any standard
form of telecommunication or by being deposited in first class mail, postage prepaid, addressed (until another address is filed in writing
by the Company with the Trustee), as follows: [ ]. Any notice, election, request or demand by the Company or any Securityholder or by
any other Person pursuant to this Indenture to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes,
if given or made in writing at the Corporate Trust Office of the Trustee. Notwithstanding anything herein to the contrary, where reference
herein is made to notice of any event (including notice of redemption) to a Securityholder of Global Securities, whether by mail or otherwise,
such notice shall be sufficiently given when delivered to the Depositary (or its designee) pursuant to the customary procedures of the
Depositary.
Section 13.05
Governing Law; Jury Trial Waiver.
THIS INDENTURE AND EACH SECURITY, AND ANY CLAIM,
CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH SECURITY, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF). EACH OF THE COMPANY AND THE TRUSTEE
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 INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 13.06
Treatment of Securities as Debt.
It is intended that the Securities will be treated
as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted to further this
intention.
Section 13.07
Certificates and Opinions as to Conditions Precedent.
(a)
Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture,
the Company shall furnish to the Trustee an Officer’s Certificate stating that all covenants and conditions precedent provided for
in this Indenture (other than the certificate to be delivered pursuant to Section 13.12) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such counsel all such covenants and conditions precedent have been
complied with.
(b)
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with
a condition or covenant in this Indenture shall include (i) a statement that the Person making such certificate or opinion has read such
covenant or condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such
examination or investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant
has been complied with.
Section 13.08
Payments on Business Days.
Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures supplemental
to this Indenture, in any case where the date that principal of, interest and/or premium, if any, on any Security is due or otherwise
payable shall not be a Business Day or is a day on which the banking institutions in the city of the office of the Paying Agent are authorized
or obligated by law to close or be closed, then payment of principal, premium, if any, and/or interest may be made on the next succeeding
day that is a Business Day and is not a day on which the banking institutions in the city of the office of the Paying Agent are authorized
or obligated by law to close or be closed with the same force and effect as if made on the nominal date of maturity or redemption, and
no interest shall accrue for the period after such nominal date.
Section 13.09
Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 13.10
Counterparts.
This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The
exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and
delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of
the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 13.11
Separability.
In case any one or more of the provisions contained
in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities, but this
Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein
or therein.
Section 13.12
Compliance Certificates.
The Company shall deliver to the Trustee, within
120 days after the end of each fiscal year during which any Securities of any series were outstanding, an Officer’s Certificate
stating whether or not the signers know of any Event of Default that occurred during such fiscal year. Such certificate shall contain
a certification from the principal executive officer, principal financial officer or principal accounting officer of the Company that
a review has been conducted of the activities of the Company and the Company’s performance under this Indenture and that the Company
has complied with all conditions and covenants under this Indenture. For purposes of this Section 13.12, such compliance shall
be determined without regard to any period of grace or requirement of notice provided under this Indenture. If the officer of the Company
signing such certificate has knowledge of such an Event of Default, the certificate shall describe any such Event of Default and its status.
Section 13.13
USA PATRIOT ACT.
The parties hereto acknowledge that in accordance
with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism
and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes
a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such
information as it may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
Section 13.14
Calculations.
It is understood that the Trustee nor the Paying
Agent shall have no responsibility for any calculations hereunder and shall be entitled to conclusively rely on the calculations of the
Company without any independent verification or investigation.
Article 14
SUBORDINATION OF SECURITIES
Section 14.01
Subordination Terms.
The payment by the Company of the principal of,
premium, if any, and interest on any series of Securities issued hereunder shall be subordinated to the extent set forth in an indenture
supplemental hereto relating to such series.
IN WITNESS WHEREOF, the parties hereto
have caused this Indenture to be duly executed all as of the day and year first above written.
|
|
BRAINSTORM CELL THERAPEUTICS INC., as Issuer
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Signature Page to Form of Indenture
TRUST INDENTURE ACT CROSS-REFERENCE TABLE2
|
Section of Trust Indenture Act
of 1939, as amended
|
|
Section of
Indenture
|
|
310(a)
|
|
7.09
|
|
310(b)
|
|
7.08
7.10
|
|
310(c)
|
|
Inapplicable
|
|
311(a)
|
|
7.13
|
|
311(b)
|
|
7.13
|
|
311(c)
|
|
Inapplicable
|
|
312(a)
|
|
5.01
5.02(a)
|
|
312(b)
|
|
5.02(c)
|
|
312(c)
|
|
5.02(c)
|
|
313(a)
|
|
5.04(a)
|
|
313(b)
|
|
5.04(b)
|
|
313(c)
|
|
5.04(a)
5.04(b)
|
|
313(d)
|
|
5.04(c)
|
|
314(a)
|
|
5.03
13.12
|
|
314(b)
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|
Inapplicable
|
|
314(c)
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|
13.07(a)
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|
314(d)
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|
Inapplicable
|
|
314(e)
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|
13.07(b)
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|
314(f)
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|
Inapplicable
|
|
315(a)
|
|
7.01(a)
7.01(b)
|
|
315(b)
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|
7.14
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|
315(c)
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|
7.01(a)
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|
315(d)
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|
7.01(b)
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|
315(e)
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|
6.07
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|
316(a)
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|
6.06
8.04
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|
316(b)
|
|
6.04
|
|
316(c)
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|
8.01
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|
317(a)
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|
6.02
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|
317(b)
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|
4.03
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|
318(a)
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13.09
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2
This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation
of any of its terms or provisions.
Exhibit 5.1
August 9, 2021
Brainstorm Cell Therapeutics Inc.
1325 Avenue of Americas, 28th Floor
New York, NY 10019
Attention: Chief Executive Officer
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Re:
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Securities Being Registered under Registration Statement
on Form S-3
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We have acted as counsel to you in connection with your filing of a
Registration Statement on Form S-3 (as amended or supplemented, the “Registration Statement”) pursuant to the Securities Act
of 1933, as amended (the “Securities Act”), relating to the offering by Brainstorm Cell Therapeutics Inc., a Delaware corporation
(the “Company”), of up to $200,000,000 of any combination of (i) common stock, par value $0.00005 per share (the “Common
Stock”), of the Company, (ii) debt securities of the Company (“Debt Securities”), (iii) warrants to purchase
Common Stock, Debt Securities or Units (as defined below ) (“Warrants”), and (iv) units comprised of Common Stock, Debt
Securities, Warrants and other securities in any combination (“Units”). The Common Stock, Debt Securities, Warrants and Units
are sometimes referred to collectively herein as the “Securities.” Securities may be issued in an unspecified number (with
respect to Common Stock, Warrants and Units) or in an unspecified principal amount (with respect to Debt Securities). The Registration
Statement provides that the Securities may be offered separately or together, in separate series, in amounts, at prices and on terms to
be set forth in one or more prospectus supplements (each a “Prospectus Supplement”) to the prospectus contained in the Registration
Statement.
We have reviewed such documents and made such examination of law as
we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of
public officials and, as to matters of fact material to the opinions set forth below, on certificates of officers of the Company.
The opinions set forth below are limited to the Delaware General Corporation
Law and the law of New York.
For purposes of the opinions set forth below, without limiting
any other exceptions or qualifications set forth herein, we have assumed that (i) each of the Debt Securities, Warrants and Units,
and the indentures, warrant agreements, unit agreements and other agreements governing Securities offered pursuant to the
Registration Statement will be governed by the internal law of New York and (ii) after the issuance of any Securities offered
pursuant to the Registration Statement, the total number of issued shares of Common Stock, together with the total number of shares
of such stock issuable upon the exercise, exchange, conversion or settlement, as the case may be, of any exercisable, exchangeable
or convertible security (including without limitation any Unit), as the case may be, then outstanding, will not exceed the total
number of authorized shares of Common Stock available for issuance under the Company’s certificate of incorporation as then in
effect (the “Charter”).
Brainstorm Cell Therapeutics Inc.
August 9, 2021
Page 2
For purposes of the opinions set forth below, we refer to the following
as the “Future Authorization and Issuance” of Securities:
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·
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with respect to any of the Securities, (a) the authorization by the Company of the amount, terms and issuance of such Securities
(the “Authorization”) and (b) the issuance of such Securities in accordance with the Authorization therefor upon the
receipt by the Company of the consideration (which, in the case of shares of Common Stock, is not less than the par value of such shares)
to be paid therefor in accordance with the Authorization;
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·
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with respect to Debt Securities, (a) the authorization, execution and delivery of the indenture or a supplemental indenture relating
to such Securities by the Company and the trustee thereunder and/or (b) the establishment of the terms of such Securities by the
Company in conformity with the applicable indenture or supplemental indenture and applicable law, and (c) the execution, authentication
and issuance of such Securities in accordance with the applicable indenture or supplemental indenture and applicable law; and
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·
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with respect to Warrants or Units, (a) the authorization, execution and delivery by the Company and the other parties thereto
of any agreement under which such Securities are to be issued, and (b) the establishment of the terms of such Securities and the
issuance of such Securities in conformity with those terms, the terms of any applicable agreement and applicable law.
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Based upon the foregoing, and subject to the additional qualifications
set forth below, we are of the opinion that:
1.
Upon the Future Authorization and Issuance of shares of Common Stock, such shares of Common Stock will be validly issued, fully
paid and nonassessable.
2.
Upon the Future Authorization and Issuance of Debt Securities, such Debt Securities will be valid and binding obligations of the
Company.
3.
Upon the Future Authorization and Issuance of Warrants, such Warrants will be valid and binding obligations of the Company.
4.
Upon the Future Authorization and Issuance of Units, such Units will be valid and binding obligations of the Company.
Brainstorm Cell Therapeutics Inc.
August 9, 2021
Page 3
The opinions expressed above are subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting the rights and remedies of creditors
and to general principles of equity.
This opinion letter and the opinions it contains shall be interpreted
in accordance with the Core Opinion Principles as published in 74 Business Lawyer 815 (Summer 2019).
We hereby consent to the inclusion of this opinion as Exhibit 5.1 to
the Registration Statement and to the references to our firm under the caption “Legal Matters” in the Registration Statement.
In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations thereunder.
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Very truly yours,
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/s/ GOODWIN PROCTER LLP
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GOODWIN PROCTER LLP
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Exhibit 5.2
August 9, 2021
Brainstorm Cell Therapeutics Inc.
1325 Avenue of Americas, 28th Floor
New York, NY 10019
Attention: Chief Executive Officer
|
|
Re:
|
Securities Registered under Registration Statement on Form
S-3
|
We have acted as counsel to
you in connection with your filing of a Registration Statement on Form S-3 (as amended or supplemented, the “Registration Statement”)
filed on August 9, 2021 with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933,
as amended (the “Securities Act”), relating to the registration of the offering by Brainstorm Cell Therapeutics Inc., a Delaware
corporation (the “Company”) of up to $200,000,000 of any combination of securities of the types specified therein. Reference
is made to our opinion letter dated August 9, 2021 and included as Exhibit 5.1 to the Registration Statement. We are delivering this supplemental
opinion letter in connection with the distribution agreement prospectus (the “Prospectus”) contained in the Registration Statement.
The Prospectus relates to the offering by the Company of up to $100,000,000 in shares (the “Shares”) of the Company’s
common stock, par value $0.00005 per share (the “Common Stock”) covered by the Registration Statement. The Shares are being
offered and sold by the distribution agents named in, and pursuant to, a distribution agreement between the Company and such distribution
agents.
We have reviewed such documents
and made such examination of law as we have deemed appropriate to give the opinion set forth below. We have relied, without independent
verification, on certificates of public officials and, as to matters of fact material to the opinion set forth below, on certificates
of officers of the Company.
For purposes of the opinion
set forth below, we have assumed that the Shares are issued for a price per share equal to or greater than the minimum price authorized
by the Company’s board of directors prior to the date hereof (the “Minimum Price”) and that no event occurs that causes
the number of authorized shares of Common Stock available for issuance by the Company to be less than the number of then unissued Shares
that may be issued for the Minimum Price.
For purposes of the
opinion set forth below, we refer to the following as “Future Approval and Issuance”: (a) the approval by the
Company’s board of directors (or a duly authorized committee of the board of directors) of the issuance of the Shares (the
“Approval”) and (b) the issuance of the Shares in accordance with the Approval and the receipt by the Company of the
consideration (which shall not be less than the par value of such Shares) to be paid in accordance with the Approval.
Brainstorm Cell Therapeutics Inc.
August 9, 2021
Page 2
The opinion set forth below
is limited to the Delaware General Corporation Law.
Based on the foregoing, we
are of the opinion that the Shares have been duly authorized and, upon Future Approval and Issuance, will be validly issued, fully paid
and nonassessable.
We hereby consent to the filing
of this opinion letter as Exhibit 5.2 to the Registration Statement and the reference to our firm therein. In giving our consent, we do
not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations
thereunder.
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|
Very
truly yours,
|
|
|
|
|
|
/s/
GOODWIN PROCTER LLP
|
|
|
|
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GOODWIN
PROCTER LLP
|
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in
this Registration Statement on Form S-3 of our report dated February 4, 2021, relating to the financial statements of Brainstorm Cell
Therapeutics Inc., appearing in the Annual Report on Form 10-K of Brainstorm Cell Therapeutics Inc., for the year ended December 31, 2020.
We also consent to the reference to us under the heading "Experts" in such Registration Statement.
/s/ Brightman Almagor Zohar & Co.
Brightman Almagor Zohar & Co.
Certified Public Accountants
A Firm in the Deloitte Global Network
Tel Aviv, Israel
August 9, 2021
