As
filed with the Securities and Exchange Commission on March 1, 2019
Registration
No. 333-_____
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
INTEC
PHARMA LTD.
(Exact
name of registrant as specified in its charter)
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Israel
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Not
Applicable
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(State
or other jurisdiction of
incorporation or organization)
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(IRS.
Employer
Identification
No.)
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12
Hartom Street, Har Hotzvim
Jerusalem 9777512, Israel
Tel: (+972) (2) 586-4657
(Address
and telephone number of registrant’s principal executive offices)
Intec
Pharma, Inc.
3
Columbus Circle - 15th Floor
New
York, NY 10019
(646)
374-8050
(Name,
address and telephone number of agent for service)
Copies
of all communications, including communications sent to agent for service, should be sent to:
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Dr.
Shachar Hadar, Adv.
Meitar
Liquornik Geva Leshem Tal
16 Abba Hillel Silver Rd.
Ramat Gan 52506, Israel
Tel:
(+972) (3) 610-3100
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Gary
Emmanuel, Esq.
McDermott
Will & Emery LLP
340
Madison Ave.
New
York, NY 10173
Tel:
(212) 547-5400
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Approximate
date of commencement of proposed sale to the public:
From
time to time after this Registration Statement becomes effective as determined by market conditions
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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☐
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Accelerated filer
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☒
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Non-accelerated
filer
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☐
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Smaller reporting company
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☒
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Emerging
growth company
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☒
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
☒
CALCULATION
OF REGISTRATION FEE
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Title of each class of securities to be registered
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Proposed maximum
aggregate offering
price
(1)(2)
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Amount of registration
fee
(3)
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Ordinary Shares, no par value
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-
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Warrants
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-
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-
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Subscription Rights
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-
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Debt Securities
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-
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-
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Units
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-
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Total
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$
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200,000,000
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$
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24,240.00
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(1)
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There are being
registered under this registration statement such indeterminate number of ordinary shares, warrants, subscription rights,
debt securities, and units, as may be sold by the registrant from time to time, which collectively shall have an aggregate
initial offering price not to exceed $200,000,000. The securities registered hereunder also include such indeterminate number
of ordinary shares as may be issued upon conversion, exercise or exchange of warrants or debt securities that provide for
such conversion into, exercise for or exchange into ordinary shares. In addition, pursuant to Rule 416 under the Securities
Act of 1933, as amended, or the Securities Act, the ordinary shares being registered hereunder include such indeterminate
number of ordinary shares as may be issuable with respect to the shares being registered hereunder as a result of stock splits,
stock dividends, or similar transactions. If any debt securities are issued at an original issue discount, then
the offering may be in such greater principal amount as shall result in a maximum aggregate offering price not to exceed $200,000,000
after the date hereof.
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(2)
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Not specified as
to each class of securities to be registered pursuant to General Instruction II.D. of Form S-3. The proposed maximum
offering price per unit and proposed maximum aggregate offering price per class of security will be determined from time to
time by the registrant in connection with the issuance by the registrant of the securities registered under this registration
statement.
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(3)
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Calculated pursuant
to Rule 457(o) under the Securities Act of 1933, which permits the registration fee to be calculated on the basis of the maximum
offering price of all the securities listed.
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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 or until this Registration Statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY
NOTE
This
registration statement contains two prospectuses:
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a base prospectus
which covers the offering, issuance and sale of such indeterminate number of ordinary shares, warrants, subscription rights,
debt securities, and units, which together shall have an aggregate initial offering price not to exceed $200,000,000; and
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a sales agreement
prospectus supplement covering the offering, issuance and sale by the registrant of up to a maximum aggregate offering price
of $75,000,000 of the registrant’s ordinary shares that may be issued and sold from time to time under a sales agreement
with Cowen and Company, LLC.
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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 sales agreement prospectus immediately
follows the base prospectus. The ordinary shares that may be offered, issued and sold under the Sales Agreement prospectus is
included in the $200,000,000 of securities that may be offered, issued and sold by the registrant under the base prospectus.
Upon
termination of the Sales Agreement, any portion of the $75,000,000 included in the sales agreement prospectus that is
not sold pursuant to the Sales Agreement will be available for sale in other offerings pursuant to the base prospectus.
The
information contained in this preliminary prospectus is not complete and may be changed. We may not sell these securities until
the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to
sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is
not permitted.
SUBJECT
TO COMPLETION, DATED MARCH 1, 2019
PROSPECTUS
$200,000,000
Ordinary
Shares
Warrants
to Purchase Ordinary Shares
Subscription
Rights
Debt
Securities
Units
INTEC
PHARMA LTD.
We
may offer, issue and sell from time to time up to US $200,000,000, of our ordinary shares, warrants to purchase ordinary
shares, subscription rights, debt securities and a combination of such securities, separately or as units, in one or more
offerings. This prospectus provides a general description of offerings of these securities that we may undertake.
We
refer to the ordinary shares, warrants, subscription rights, debt securities and units collectively as “securities”
in this prospectus.
Each
time we sell securities pursuant to this prospectus, we will provide a supplement to this prospectus that contains specific information
about the offering and the specific terms of the securities offered. This prospectus may not be used to consummate a sale of securities
by us unless accompanied by the applicable prospectus supplement. You should read this prospectus and the applicable prospectus
supplement carefully before you invest in our securities.
We
may, from time to time, offer and sell the securities through public or private transactions, directly or through underwriters,
agents or dealers, on or off the Nasdaq Capital Market at prevailing market prices or at privately negotiated prices. If any underwriters,
agents or dealers are involved in the sale of any of these securities, the applicable prospectus supplement will set forth the
names of the underwriters, agents or dealers and any applicable fees, commissions or discounts. Our net proceeds from the sale
of securities will also be set forth in the applicable prospectus supplement
Our
ordinary shares are traded on the Nasdaq Capital Market under the symbol “NTEC.” The closing price of our ordinary
shares, as reported on the Nasdaq Capital Market on February 27, 2019 was $8.93.
We
are an emerging growth company as that term is used in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act, and,
as such, we have elected to take advantage of certain reduced public company reporting requirements for this prospectus and future
filings.
Investing
in our securities involves risks. See the section entitled “Risk Factors” included in or incorporated by reference
into the accompanying prospectus supplement and in the documents we incorporate by reference in this prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is ,
2019
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, utilizing a
“shelf” registration process. Under this shelf registration process, we may offer and sell separately or together
in any combination the securities described in this prospectus in one or more offerings up to a total price to the public of $200,000,000.
The offer and sale of securities under this prospectus may be made from time to time, in one or more offerings, in any manner
described under the section in this prospectus entitled “Plan of Distribution.” This prospectus does not contain all
of the information set forth in the registration statement, certain parts of which are omitted in accordance with the rules and
regulations of the SEC. Accordingly, you should refer to the registration statement and its exhibits for further information about
us and our securities. Copies of the registration statement and its exhibits are on file with the SEC. Statements contained in
this prospectus concerning the documents we have filed with the SEC are not intended to be comprehensive, and in each instance
we refer you to a copy of the actual document filed as an exhibit to the registration statement or otherwise filed with the SEC.
This
prospectus provides you with a general description of the securities we may offer. Each time we sell securities we will provide
this prospectus and a prospectus supplement that will contain specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this prospectus, and may also contain information about any
material federal income tax considerations relating to the securities covered by the prospectus supplement. You should carefully
read both this prospectus and any prospectus supplement together with additional information under the headings “Where You
Can Find More Information” and “Incorporation of Certain Documents by Reference.”
We
have not authorized anyone to provide you with information different from that contained or incorporated by reference in this
prospectus or any accompanying prospectus supplement or any “free writing prospectus.” We are offering to sell, and
seeking offers to buy, securities only in jurisdictions where offers and sales are permitted. The information contained in this
prospectus and in any accompanying prospectus supplement is accurate only as of the dates of their covers, regardless of the time
of delivery of this prospectus or any prospectus supplement or of any sale of our securities. Our business, financial condition,
results of operations, and prospects may have changed since those dates. You should rely only on the information contained or
incorporated by reference in this prospectus or any accompanying prospectus supplement. To the extent there is a conflict between
the information contained in this prospectus and the prospectus supplement, you should rely on the information in the prospectus
supplement, provided that if any statement in one of these documents is inconsistent with a statement in another document having
a later date — for example, a document incorporated by reference into this prospectus or any prospectus supplement —
the statement in the document having the later date modifies or supersedes the earlier statement.
This
prospectus incorporates by reference market data and certain industry data and forecasts that were obtained from market research
databases, consultant surveys commissioned by us, publicly available information, reports of governmental agencies and industry
publications and surveys. Industry surveys, publications, consultant surveys commissioned by us and forecasts generally state
that the information contained therein has been obtained from sources believed to be reliable. We have relied on certain data
from third-party sources, including internal surveys, industry forecasts and market research, which we believe to be reliable
based on our management’s knowledge of the industry. Statements as to our market position are based on the most currently
available data. While we are not aware of any misstatements regarding the industry data presented in this annual report, our estimates
involve risks and uncertainties and are subject to change based on various factors, including those discussed under the headings
“Risk Factors” in this prospectus, and under similar headings in the other documents that are incorporated herein
by reference.
Certain
figures included in this prospectus have been subject to rounding adjustments. Accordingly, figures shown as totals in certain
tables may not be an arithmetic aggregation of the figures that precede them.
When
used herein, unless the context requires otherwise, references to the “Company, “we,” “our,” and
“us” refer to Intec Pharma Ltd., an Israeli company, and its U.S. subsidiary Intec Pharma Inc., unless the context
otherwise requires.
RISK
FACTORS
Before
purchasing any of the securities you should carefully consider the risk factors set forth below and incorporated by reference
in this prospectus from our most recent Annual Report on Form 10-K and any subsequent Quarterly Report on Form 10-Q or Current
Report on Form 8-K, as well as the risks, uncertainties and additional information set forth in our SEC reports on Forms 10-K,
10-Q and 8-K and in the other documents incorporated by reference in this prospectus. For a description of these reports and documents,
and information about where you can find them, see “Where You Can Find More Information” and “Incorporation
of Certain Documents By Reference.” Additional risks not presently known or that we presently consider to be immaterial
could subsequently materially and adversely affect our financial condition, results of operations, business and prospects.
FORWARD-LOOKING
STATEMENTS
This
prospectus, including the information incorporated by reference into this prospectus, contains, and any prospectus supplement
may contain statements that are forward-looking statements about our expectations, beliefs or intentions regarding, among other
things, our product development efforts, business, financial condition, results of operations, strategies, plans and prospects.
In addition, from time to time, we or our representatives have made or may make forward-looking statements, orally or in writing.
Forward-looking statements can be identified by the use of forward-looking words such as “believe,” “expect,”
“intend,” “plan,” “may,” “should,” “anticipate,” “could,”
“might,” “seek,” “target,” “will,” “project,” “forecast,”
“continue” or their negatives or variations of these words or other comparable words or by the fact that these statements
do not relate strictly to historical matters. These forward-looking statements may be included in, among other things, various
filings made by us with the SEC, press releases or oral statements made by or with the approval of one of our authorized executive
officers. Forward-looking statements relate to anticipated or expected events, activities, trends or results as of the date they
are made. Because forward-looking statements relate to matters that have not yet occurred, these statements are inherently subject
to risks and uncertainties that could cause our actual results to differ materially from any future results expressed or implied
by the forward-looking statements. Many factors could cause our actual activities or results to differ materially from the activities
and results anticipated in forward-looking statements, including, but not limited to:
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we
are a clinical stage biopharmaceutical company with a history of operating losses, are
not currently profitable, do not expect to become profitable in the near future and may
never become profitable;
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our
independent registered public accounting firm has expressed substantial doubt regarding
our ability to continue as a going concern;
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because
of our limited operating history, we may not be able to successfully operate our business
or execute our business plan;
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we
face continuous technological change, and developments by competitors may render our
products or technologies obsolete or non-competitive. If our new or existing product
candidates are rendered obsolete or non-competitive, our marketing and sales will suffer
and we may never be profitable;
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we
license our core technology on an exclusive basis from Yissum (Hebrew University), and
we could lose our rights to this license if a dispute with Yissum arises or if we fail
to comply with the financial and other terms of the license;
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if
we fail to adequately protect, enforce or secure rights to the patents which were licensed
to us or any patents we may own in the future, the value of our intellectual property
rights would diminish and our business and competitive position would suffer;
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our
product candidates are at various stages of preclinical and clinical development and
may never be commercialized;
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we
cannot be certain that the results of our ACCORDANCE study or any future Phase III clinical
trial, even if all endpoints are met, will support regulatory approval of any of our
product candidates for any indication;
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our
product candidates are subject to extensive regulation and are at various stages of regulatory
development and may never obtain regulatory approval;
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we
are subject to anti-kickback laws and regulations. Our failure to comply with these laws
and regulations could have adverse consequences to us; and
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potential
political, economic and military instability in the State of Israel, where some of our
senior management, our head executive office, research and development, and manufacturing
facilities are located, may adversely affect our results of operations.
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We
believe these forward-looking statements are reasonable; however, these statements are only current predictions and are subject
to known and unknown risks, uncertainties and other factors that may cause our or our industry’s actual results, levels
of activity, performance or achievements to be materially different from those anticipated by the forward-looking statements.
We discuss many of these risks in this prospectus in greater detail under the heading “Risk Factors” and elsewhere
in this prospectus. Given these uncertainties, you should not rely upon forward-looking statements as predictions of future events.
All
forward-looking statements attributable to us or persons acting on our behalf speak only as of the date hereof and are expressly
qualified in their entirety by the cautionary statements included in this prospectus. We undertake no obligations to update or
revise forward-looking statements to reflect events or circumstances that arise after the date made or to reflect the occurrence
of unanticipated events, except as required by law. In evaluating forward-looking statements, you should consider these risks
and uncertainties and not place undue reliance on our forward-looking statements.
OUR
BUSINESS
We
are a clinical stage biopharmaceutical company focused on developing drugs based on our proprietary Accordion Pill platform technology,
which we refer to as the Accordion Pill. Our Accordion Pill is an oral drug delivery system that is designed to improve the efficacy
and safety of existing drugs and drugs in development by utilizing an efficient gastric retention and specific release mechanism.
Our product pipeline currently includes several product candidates in various clinical trial stages. Our leading product candidate,
Accordion Pill Carbidopa/Levodopa, or AP-CD/LD, is being developed for the indication of treatment of Parkinson’s disease
symptoms in advanced Parkinson’s disease patients. We have successfully completed a Phase II clinical trial for AP-CD/LD
for the treatment of Parkinson’s disease symptoms in advanced Parkinson’s disease patients and have agreed with the
U.S. Food and Drug Administration, or FDA, on the remaining clinical development program for AP-CD/LD for the treatment of Parkinson’s
disease symptoms in advanced Parkinson’s disease patients, including the main principles of the single required pivotal
Phase III clinical trial in advanced Parkinson’s disease patients.
We
are currently conducting a pivotal Phase III clinical for AP-CD/LD for the treatment of advanced Parkinson’s disease known
as the ACCORDANCE study. In April 2016, we enrolled the first patient in the ACCORDANCE study and in October 2018, we completed
enrollment. We currently expect to release top-line results in mid-2019. In our correspondence with the FDA, the FDA previously
agreed that an acceptable regulatory pathway for AP-CD/LD would be to submit a new drug application, or NDA, pursuant to Section
505(b)(2) of the Federal Food, Drug, and Cosmetic Act, which is a streamlined approval pathway that may accelerate the time to
commercialize and decrease the costs of FDA approval for AP–CD/LD, as compared to those typically associated with a new
chemical entity.
In
February 2019, we announced that AP-CD/LD met the primary endpoint in a pharmacokinetic, or PK, study comparing the AP-CD/LD 50/500mg
dosed three times daily, the most common dose used in our on-going ACCORDANCE study, to 1.5 tablets of CD/LD immediate release
(Sinemet™) 25/100 dosed five times per day in Parkinson's disease patients.
We
have invested in the commercial scale manufacture of AP-CD/LD, for which we are in partnership with LTS Lohmann Therapie-Systeme
AG, or LTS. In December 2018, the large commercial scale production line was delivered to LTS in Andernacht, Germany, and we are
in the process of installing and connecting all the ancillary equipment. During 2019, we plan to begin the validation, bridging
and stability studies needed for regulatory filing and expect these should put us on track for a submission with the FDA in mid-to-late
2020.
In
addition, we have initiated a clinical development program for our Accordion Pill platform with the two primary cannabinoids contained
in cannabis sativa, which we refer to as AP-Cannabinoids. We are formulating and testing cannabidiol, or CBD, and 9-tetrahydrocannabinol,
or THC, for the treatment of various pain indications. AP-Cannabinoids are designed to extend the absorption phase of CBD and
THC, with the goal of more consistent levels for an improved therapeutic effect which may address several major drawbacks of current
methods of treatment, such as short duration of effect, delayed onset, variability of exposure, variability of the administered
dose and adverse events that correlate with peak levels. In March 2017, we initiated a Phase I single-center, single-dose, randomized,
three-way crossover clinical trial in Israel to compare the safety, tolerability and PK of AP-THC/CBD, with Sativex
®
,
an oral buccal spray containing CBD and THC that is commercially available outside of the United States. Initial results demonstrate
that the Accordion Pill platform is well-suited to safely deliver CBD and THC with significant improvements in exposure compared
with Sativex. In December 2018, we initiated a PK study of AP-THC. We have completed the dosing of the AP-THC PK study and the
data is in the process of being analyzed by a third party contract research organization per protocol. However, upon raw data
review, the delivery of THC does not appear to meet our full program expectations. We await the full dataset and the statistical
analysis to determine our next steps.
In
December 2018, we reported that we successfully developed an Accordion Pill for a Novartis proprietary compound that met the required
in vitro
specifications set forth in a feasibility agreement with Novartis. We have mutually agreed to proceed
with the program and plan to enter the clinic with a first-in-human PK study in the first half of 2019. We believe continued success
with this program further validates the platform, confirms our technical abilities to build custom APs and paves the way for additional
collaborative agreements.
Our
registered office and principal place of business is located at 12 Hartom Street, Har Hotzvim, Jerusalem 9777512, Israel and our
telephone number in Israel is +972 (2) 586 4657. Our website address is http://www.intecpharma.com. The information contained
on our website or available through our website does not constitute part of this prospectus. Our registered agent in the United
States is Intec Pharma, Inc., whose address is 3 Columbus Circle – 15th Floor, New York, NY 10019 USA.
USE
OF PROCEEDS
Unless
otherwise indicated in an accompanying prospectus supplement, the net proceeds from the sale of securities will be used for our
clinical trials, to advance our pre-commercial activities, for working capital and for general corporate purposes. Pending these
uses, we may invest the net proceeds from the sale of securities in accordance with our investment policy, as may be amended from
time to time, which currently includes bank deposits carrying interest, corporate debt obligations with a minimum
of an A rating by global rating agencies and investments in United States Government Securities and Israeli Government Securities.
When specific securities are offered, the prospectus supplement relating thereto will set forth our intended use of the net proceeds
that we receive from the sale of such securities.
THE SECURITIES WE MAY
OFFER
General
The
descriptions of the securities contained in this prospectus, together with the applicable prospectus supplements, summarize all
of the material terms and provisions of the various types of securities that we may offer. We will describe in the applicable
prospectus supplement relating to any securities the particular terms of the securities offered by that prospectus supplement.
If we indicate in the applicable prospectus supplement, the terms of the securities may differ from the terms we have summarized
below. We may also include in the prospectus supplement information about material United States federal income tax considerations
relating to the securities, and the securities exchange, if any, on which the securities will be listed.
We
may sell from time to time, in one or more offerings:
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ordinary shares;
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warrants
to purchase ordinary shares;
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subscription
rights to purchase ordinary shares or debt securities;
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debt
securities; and
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units consisting
of any combination of the securities listed above.
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In
this prospectus, we refer to the ordinary shares, subscription rights, warrants, debt securities and units collectively as “securities.”
The total dollar amount of all securities that we may sell will not exceed $200,000,000.
If
we issue debt securities at a discount from their original stated principal amount, then, for purposes of calculating the total
dollar amount of all securities issued under this prospectus, we will treat the initial offering price of the debt securities
as the total original principal amount of the debt securities.
This
prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
DESCRIPTION
OF ORDINARY SHARES
General
The
following are summaries of material provisions of our articles of association and the Israeli Companies Law 5759-1999, or the
Companies Law, insofar as they relate to the material terms of our ordinary shares.
As
of February 27, 2019, our authorized share capital consists of 100,000,000 ordinary shares, no par value, 33,232,988 of which
are issued and outstanding. All of our outstanding ordinary shares are validly issued, fully paid and non-assessable. Our ordinary
shares are not redeemable and do not have any preemptive rights.
Holders
of our ordinary shares have one vote for each ordinary share held on all matters submitted to a vote of shareholders at a shareholder
meeting. Because our ordinary shares do not have cumulative voting rights in the election of directors, the holders of a majority
of the voting power represented at a shareholders meeting have the power to elect all of our directors, subject to the special
approval requirements for external directors (if applicable). Shareholders may vote at shareholder meetings either in person,
by proxy or by written ballot. The Companies Law does not allow public companies to adopt shareholder resolutions by means of
written consent in lieu of a shareholder meeting. The board of directors shall determine and provide a record date for each shareholders
meeting and all shareholders at such record date may vote. Unless stipulated differently in the Companies Law or in our articles
of association, all shareholders’ resolutions shall be approved by a simple majority vote. An amendment to our articles
of association requires the prior approval of a simple majority of our shares represented and voting at a general meeting and
of the holders of a class of shares whose rights are being affected. Our number with the Israeli Registrar of Companies is 513022780.
Our purpose is set forth in Section 2 of our articles of association and as to engage in any legal business.
Transfer
of Shares
Our
ordinary shares that are fully paid for are issued in registered form and may be freely transferred under our articles of association,
unless the transfer is restricted or prohibited by applicable law or the rules of a stock exchange on which the shares are traded.
The ownership or voting of our ordinary shares by non-residents of Israel is not restricted in any way by our articles of association
or Israeli law, except for ownership by nationals of some countries that are, or have been, in a state of war with Israel.
Exercise
of Power by the Board
Pursuant
to the Companies Law and our articles of association, our board of directors may exercise all powers and take all actions that
are not required under law or under our articles of association to be exercised or taken by our shareholders, including the power
to borrow money for company purposes.
Changes
in Share Capital
Our
articles of association enable us to increase or reduce our share capital. Any such change is subject to the provisions of the
Companies Law and must be approved by a resolution duly passed by our shareholders at a general or special meeting by voting on
such change in the capital. In addition, transactions that have the effect of reducing capital, such as the declaration and payment
of dividends in the absence of sufficient retained earnings and profits and an issuance of shares for less than their nominal
value, require a resolution of our board of directors and court approval.
Dividends
Under
the Companies Law, we may declare and pay dividends only if, upon the determination of our board of directors, there is no reasonable
concern that the distribution will prevent us from being able to meet the terms of our existing and foreseeable obligations as
they become due. Under the Companies Law, the distribution amount is further limited to the greater of retained earnings or earnings
generated over the two most recent years legally available for distribution according to our then last reviewed or audited financial
statements, provided that the date of the financial statements is not more than six months prior to the date of distribution.
In the event that we do not have retained earnings or earnings generated over the two most recent years legally available for
distribution, we may seek the approval of the court in order to distribute a dividend. The court may approve our request if it
is convinced that there is no reasonable concern that the payment of a dividend will prevent us from satisfying our existing and
foreseeable obligations as they become due.
Shareholder
Meetings
Under
the Companies Law, we are required to hold an annual general meeting of our shareholders once in every calendar year and no later
than 15 months following the date of the previous annual general meeting. All meetings other than the annual general meeting of
shareholders are referred to as special meetings. Our board of directors may call special meetings whenever it deems fit, at such
time and place, within or outside of Israel, as it may determine. In addition, the Companies Law and our articles of association
provide that our board of directors is required to convene a special meeting upon the written request of (i) any two of our directors
or one quarter of the directors then in office or (ii) one or more shareholders holding, in the aggregate, (a) 5% of our issued
share capital and 1% of our outstanding voting power or (b) 5% of our outstanding voting power.
Subject
to the provisions of the Companies Law and the regulations promulgated thereunder, shareholders entitled to participate and vote
at general meetings are the shareholders of record on a date to be decided by the board of directors. Furthermore, the Companies
Law and our articles of association require that resolutions regarding the following matters must be passed at a general meeting
of our shareholders:
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amendments to our
articles of association;
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appointment or termination
of our auditors;
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appointment and
dismissal of external directors (if applicable);
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approval of acts
and transactions requiring general meeting approval pursuant to the Companies Law;
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director compensation
and compensation of the principal executive officer (subject to certain exceptions);
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increases or reductions
of our authorized share capital;
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the exercise of
our board of directors’ powers by a general meeting, if our board of directors is unable to exercise its powers and
the exercise of any of its powers is required for our proper management; and
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authorization of
the chairman of the board of directors or his relative to act as the company’s chief executive officer or act with such
authority; or authorization of the company’s chief executive officer or his relative to act as the chairman of the board
of directors or act with such authority.
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The
Companies Law requires that a notice of any annual or special shareholders meeting be provided at least 21 days prior to the meeting
and if the agenda of the meeting includes the appointment or removal of directors, the approval of transactions with office holders
or interested or related parties, or an approval of a merger, notice must be provided at least 35 days prior to the meeting.
The
Companies Law does not allow shareholders of publicly traded companies to approve corporate matters by written consent.
Pursuant
to our articles of association, holders of our ordinary shares have one vote for each ordinary share held on all matters submitted
to a vote before the shareholders at a general meeting.
Quorum
The
quorum required for our general meetings of shareholders consists of at least two shareholders present in person, by proxy or
written ballot who hold or represent between them at least thirty three and one third percent (33
1/3
%) of the total
outstanding voting rights, within half an hour from the appointed time.
A
meeting adjourned for lack of a quorum is adjourned to the same day in the following week at the same time and place or on a later
date if so specified in the summons or notice of the meeting. At the reconvened meeting, the quorum required consists of at least
two shareholders present in person, by proxy or written ballot who hold or represent between them at least thirty three and one
third percent (33
1/3
%) of the total outstanding voting rights, within half an hour from the appointed time.
Resolutions
Our
articles of association provide that all resolutions of our shareholders require a simple majority vote, unless otherwise required
by applicable law.
Under
the Companies Law, a shareholder of a public company may vote in a meeting and in a class meeting by means of a written ballot
in which the shareholder indicates how he or she votes on resolutions relating to the following matters:
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an appointment or
removal of directors;
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an approval of transactions
with office holders or interested or related parties, that require shareholder approval;
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an approval of a
merger;
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authorizing the
chairman of the board of directors or his relative to act as the company’s chief executive officer or act with such
authority; or authorize the company’s chief executive officer or his relative to act as the chairman of the board of
directors or act with such authority;
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any other matter
that is determined in the articles of association to be voted on by way of a written ballot. Our articles of association do
not stipulate any additional matters; and
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other matters which
may be prescribed by Israel’s Minister of Justice.
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The
Companies Law provides that a shareholder, in exercising his or her rights and performing his or her obligations toward the company
and its other shareholders, must act in good faith and in a customary manner, and avoid abusing his or her power. This is required
when voting at general meetings on matters such as changes to the articles of association, increasing the company’s authorized
share capital, mergers and approval of certain interested or related party transactions. A shareholder also has a general duty
to refrain from depriving any other shareholder of its rights as a shareholder. In addition, any controlling shareholder, any
shareholder who knows that its vote can determine the outcome of a shareholder’s vote and any shareholder who, under such
company’s articles of association, can appoint or prevent the appointment of an office holder or has other power towards
the company, is required to act with fairness towards the company. The Companies Law does not describe the substance of this duty
except that the remedies generally available upon a breach of contract will also apply to a breach of the duty to act with fairness,
and, to the best of our knowledge, we believe there is no binding case law that addresses this subject directly.
Under
the Companies Law, unless provided otherwise in a company’s articles of association, a resolution at a shareholders meeting
requires approval by a simple majority of the voting rights represented at the meeting, in person, by proxy or written ballot,
and voting on the resolution. Generally, a resolution for the voluntary winding up of the company requires the approval of holders
of 75% of the voting rights represented at the meeting, in person, by proxy or by written ballot and voting on the resolution.
In
the event of our liquidation, after satisfaction of liabilities to creditors, our assets will be distributed to the holders of
our ordinary shares in proportion to their shareholdings. This right, as well as the right to receive dividends, may be affected
by the grant of preferential dividend or distribution rights to the holders of a class of shares with preferential rights that
may be authorized in the future.
Access
to Corporate Records
Under
the Companies Law, all shareholders of a company generally have the right to review minutes of the company’s general meetings,
its shareholders register and principal shareholders register, its articles of association, its financial statements and any document
it is required by law to file publicly with the Israeli Companies Registrar and the Israeli Securities Authority, or ISA. Any
of our shareholders may request access to review any document in our possession that relates to any action or transaction with
a related party, interested party or office holder that requires shareholder approval under the Companies Law. We may deny a request
to review a document if we determine that the request was not made in good faith, that the document contains a commercial secret
or a patent or that the document’s disclosure may otherwise prejudice our interests.
Acquisitions
under Israeli Law
Full
Tender Offer
A
person wishing to acquire shares or a class of shares of an Israeli public company and who would, as a result, own more than 90%
of the target company’s issued and outstanding share capital or of a certain class of its shares, is required by the Companies
Law to make a full tender offer (as defined in the Companies Law) to all of the company’s shareholders for the purchase
of all of the issued and outstanding shares of the company or class of shares. If either (i) the shareholders who do not accept
the offer hold, in the aggregate, less than 5% of the issued and outstanding share capital of the company or of the applicable
class, and more than half of the shareholders who do not have a personal interest in the offer accept the offer, or (ii) the shareholders
who do not accept the offer hold less than 2% of the issued and outstanding share capital of the company or of the applicable
class, then all of the shares that the acquirer offered to purchase will be transferred to the acquirer by operation of law. However,
a shareholder that had its shares so transferred, whether or not it accepted the tender offer (unless otherwise provided in the
offering memorandum), may, within six months from the date of acceptance of the tender offer, petition the court to determine
that the tender offer was for less than fair value and that the fair value should be paid as determined by the court. If either
(i) the shareholders who did not accept the tender offer hold at least 5% of the issued and outstanding share capital of the company
or of the applicable class of shares or the shareholders who accept the offer constitute less than a majority of the offerees
that do not have a personal interest in the acceptance of the tender offer, or (ii) the shareholders who did not accept the tender
offer hold 2% or more of the issued and outstanding share capital of the company (or of the applicable class), the acquirer may
not acquire shares of the company that will increase its holdings to more than 90% of the company’s issued and outstanding
share capital or of the applicable class from shareholders who accepted the tender offer. Shares purchased not in accordance with
those provisions shall become “dormant shares” and shall not grant the purchaser any rights so long as they are held
by the purchaser.
Special
Tender Offer
According
to the Companies Law, an acquisition pursuant to which a purchaser shall hold a “controlling stake”, that is
defined as 25% or more of the voting rights if no other shareholder holds a controlling stake, or an acquisition pursuant to which
such purchaser shall hold more than 45% of the voting rights of the company if no other shareholder owns more than 45% of the
voting rights, may not be performed by way of market accumulation, but only by way of a special tender offer (as defined in the
Companies Law) made to all of the company’s shareholders on a pro rata basis. A special tender offer may not be consummated
unless a majority of the shareholders who announced their stand on such offer have accepted it (in counting the total votes of
such shareholders, shares held by the controlling shareholders, shareholders who have a personal interest in the offer, shareholders
who own 25% or more of the voting rights in the company, relatives or representatives of any of the above or the bidder and corporations
under their control, shall not be taken into account). A shareholder may be free to object to such an offer without such objection
being deemed as a waiver of his right to sell its respective shares if the transaction is approved by a majority of the company’s
shareholders despite his objection. Shares purchased not in accordance with those provisions shall become “dormant shares”
and shall not grant the purchaser any rights so long as they are held by the purchaser. If a special tender offer is accepted,
then the purchaser or any person or entity controlling it or under common control with the purchaser or such controlling person
or entity may not make a subsequent tender offer for the purchase of shares of the target company and may not enter into a merger
with the target company for a period of one year from the date of the offer, unless the purchaser or such person or entity undertook
to effect such an offer or merger in the initial special tender offer.
Under
regulations enacted pursuant to the Companies Law, the above special tender offer requirements may not apply to companies whose
shares are listed for trading on a foreign stock exchange if, among other things, the relevant foreign laws or the rules of the
stock exchange include provisions limiting the percentage of control which may be acquired or that the purchaser is required to
make a tender offer to the public. However, we believe the ISA’s current opinion is that such leniency does not apply with
respect to companies whose shares are listed for trading on stock exchanges in the United States, including the Nasdaq Capital
Market.
Merger
The
Companies Law permits merger transactions if approved by each party’s board of directors and, unless certain requirements
described under the Companies Law are met, a majority of each party’s shares voted on the proposed merger at a shareholders’
meeting called with at least 35 days’ prior notice.
For
purposes of the shareholder vote, unless a court rules otherwise, the merger will not be deemed approved if a majority of the
shares represented at the shareholders meeting that are held by parties other than the other party to the merger, or by any person
who holds 25% or more of the outstanding shares or the right to appoint 25% or more of the directors of the other party, vote
against the merger. If the transaction would have been approved but for the separate approval of each class or the exclusion of
the votes of certain shareholders as provided above, a court may still approve the merger upon the request of holders of at least
25% of the voting rights of a company, if the court holds that the merger is fair and reasonable, taking into account the value
of the parties to the merger and the consideration offered to the shareholders.
Upon
the request of a creditor of either party to the proposed merger, the court may delay or prevent the merger if it concludes that
there exists a reasonable concern that, as a result of the merger, the surviving company will be unable to satisfy the obligations
of any of the parties to the merger, and may further give instructions to secure the rights of creditors.
In
addition, a merger may not be completed unless at least 50 days have passed from the date that a proposal for approval of the
merger was filed by each party with the Israeli Registrar of Companies and 30 days have passed from the date the merger was approved
by the shareholders of each party.
Antitakeover
Measures
The
Companies Law allows us to create and issue shares having rights different from those attached to our ordinary shares, including
shares providing certain preferred rights, distributions or other matters and shares having preemptive rights. As of the date
of this prospectus, we do not have any authorized or issued shares other than our ordinary shares. In the future, if we do create
and issue a class of shares other than ordinary shares, such class of shares, depending on the specific rights that may be attached
to them, may delay or prevent a takeover or otherwise prevent our shareholders from realizing a potential premium over the market
value of their ordinary shares. The authorization of a new class of shares will require an amendment to our articles of association
which requires the prior approval of the holders of a majority of our shares at a general meeting.
DESCRIPTION
OF WARRANTS
We
may issue and offer warrants under the material terms and conditions described in this prospectus and any accompanying prospectus
supplement. The accompanying prospectus supplement may add, update or change the terms and conditions of the warrants as described
in this prospectus.
We
may issue warrants to purchase ordinary shares. Warrants may be issued independently or together with any other securities and
may be attached to, or separate from, such securities. Each series of warrants will be issued under a separate warrant agreement
to be entered into between us and a warrant agent. The warrant agent will act solely as our agent and will not assume any obligation
or relationship of agency for or with holders or beneficial owners of warrants. The terms of any warrants to be issued and a description
of the material provisions of the applicable warrant agreement will be set forth in the applicable prospectus supplement.
The
applicable prospectus supplement will describe the following terms of any warrants in respect of which this prospectus is being
delivered:
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the title of such
warrants;
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the aggregate number
of such warrants;
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the price or prices
at which such warrants will be issued and exercised;
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the currency or
currencies in which the price of such warrants will be payable;
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the securities purchasable
upon exercise of such warrants;
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the date on which
the right to exercise such warrants shall commence and the date on which such right shall expire;
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if applicable, the
minimum or maximum amount of such warrants which may be exercised at any one time;
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if applicable, the
designation and terms of the securities with which such warrants are issued and the number of such warrants issued with each
such security;
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if applicable, the
date on and after which such warrants and the related securities will be separately transferable;
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information with
respect to book-entry procedures, if any;
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material Israeli
and United States federal income tax consequences, if any;
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the anti-dilution
provisions of the warrants, if any; and
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any other terms
of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants.
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The
description in the applicable prospectus supplement of any warrants we offer will not necessarily be complete and will be qualified
in its entirety by reference to the applicable warrant agreement and warrant certificate, which will be filed with the SEC if
we offer warrants. For more information on how you can obtain copies of the applicable warrant agreement and warrant certificate
if we offer warrants, see “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference”
beginning on page 30. We urge you to read the applicable warrant agreement and warrant certificate and any applicable prospectus
supplement in their entirety.
DESCRIPTION
OF SUBSCRIPTION RIGHTS
We
may issue subscription rights to purchase our ordinary shares. These subscription rights may be issued independently or together
with any other security offered hereby and may or may not be transferable by the shareholder receiving the subscription rights
in such offering. In connection with any offering of subscription rights, we may enter into a standby arrangement with one or
more underwriters or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase any securities
remaining unsubscribed for after such offering.
The
prospectus supplement relating to any subscription rights we offer will, to the extent applicable, include specific terms relating
to the offering, including some or all of the following:
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the price, if any,
for the subscription rights;
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the exercise price
payable for each ordinary share upon the exercise of the subscription rights;
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the number of subscription
rights to be issued to each shareholder;
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the number and terms
of the ordinary shares which may be purchased per each subscription right;
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the extent to which
the subscription rights are transferable;
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any other terms
of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise of the subscription
rights;
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the date on which
the right to exercise the subscription rights shall commence, and the date on which the subscription rights shall expire;
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the extent to which
the subscription rights may include an over-subscription privilege with respect to unsubscribed securities; and
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if applicable, the
material terms of any standby underwriting or purchase arrangement which may be entered into by us in connection with the
offering of subscription rights.
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The
description in the applicable prospectus supplement of any subscription rights we offer will not necessarily be complete and will
be qualified in its entirety by reference to the applicable subscription rights agreement, which will be filed with the SEC if
we offer subscription rights. For more information on how you can obtain copies of the applicable subscription rights agreement
if we offer subscription rights, see “Where You Can Find More Information” and “Incorporation of Certain Documents
by Reference” beginning on page 30. We urge you to read the applicable subscription rights agreement and any applicable
prospectus supplement in their entirety.
DESCRIPTION
OF DEBT SECURITIES
General
We
may issue senior and subordinated debt securities under indentures by and among us, certain of our subsidiaries, if any, and a
trustee
to be named in the senior indenture
, as the indenture trustee. Each indenture
will be subject to, and governed by, the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act, and we may supplement
the indenture from time to time.
This
prospectus summarizes the material provisions of the indentures and the debt securities that we may issue under the indentures.
This summary is not complete and may not describe all of the provisions of the indentures or of any of the debt securities that
might be important to you. For additional information, you should carefully read the forms of indenture and debt securities that
are filed as exhibits to the registration statement of which this prospectus forms a part and any definitive indentures, supplemental
indentures and forms of debt securities that are incorporated by reference as exhibits to such registration statement.
When
we offer to sell a particular series of debt securities, we will describe the specific terms of those debt securities in a supplement
to this prospectus. We will also indicate in the supplement whether the general terms in this prospectus apply to a particular
series of debt securities. Accordingly, for a description of the terms of a particular issue of debt securities, you should carefully
read both this prospectus and the applicable supplement.
In
the summary below, we have included references to the section numbers of the indentures so that you can easily locate the related
provisions in the indentures for additional detail. You should also refer to the applicable indenture for the definitions of any
capitalized terms that we use below but do not define in this prospectus. When we refer to particular sections of the indentures
or to defined terms in the indentures, we intend to incorporate by reference those sections and defined terms into this prospectus.
Terms
The
debt securities will be our direct obligations. The amount of debt securities we may offer under this prospectus is unlimited
as to principal amount. We may issue the debt securities, from time to time and in one or more series, established in or pursuant
to authority granted by one or more resolutions of our board of directors, and set forth in, or determined in the manner provided
in, an officers’ certificate, or established in one or more supplemental indentures. We may issue debt securities with terms
different from those of our previously issued debt securities (Section 301).
Each
indenture provides that there may be more than one trustee under such indenture, each such trustee with respect to one or more
series of debt securities. Any trustee under the indentures may resign or be removed with respect to one or more series of debt
securities, and a successor trustee may be appointed to act with respect to that series (Sections 608 and 609). If two or more
persons act as trustee with respect to different series of debt securities, each trustee shall be a trustee of a trust under that
indenture separate and apart from the trust administered by any other trustee (Sections 101 and 609). Except as otherwise indicated
in this prospectus, each trustee may take any action described in this prospectus only with respect to the one or more series
of debt securities for which it is trustee under the relevant indenture.
You
should refer to the applicable supplement to this prospectus relating to a particular series of debt securities for the specific
terms of the debt securities, including, but not limited to:
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the title of the
debt securities, whether the debt securities will be guaranteed and the identity of the guarantor or guarantors, if any;
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the total principal
amount of the debt securities and any limit on the total principal amount;
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the price, expressed
as a percentage of the principal amount of the debt securities, at which we will issue the debt securities and any portion
of the principal amount payable upon acceleration of the debt securities;
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the terms, if any,
by which holders of the debt securities may convert or exchange the debt securities for our ordinary shares, or any of our
other securities or property;
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if the debt securities
are convertible or exchangeable, any limitations on the ownership or transferability of the securities or property into which
holders may convert or exchange the debt securities;
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the date or dates,
or the method for determining the date or dates, on which we will be obligated to pay the principal of the debt securities
and the amount of principal we will be obligated to pay;
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the rate or rates,
which may be fixed or variable, at which the debt securities of the series will bear interest, if any, or the method by which
the rate or rates will be determined;
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whether the debt
securities rank as senior, senior subordinated or subordinated or any combination thereof and the terms of any subordination;
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the date or dates,
or the method for determining the date or dates, from which any interest will accrue on the debt securities, the dates on
which we will be obligated to pay any interest, the regular record dates, if any, for the interest payments, or the method
by which the dates will be determined, the persons to whom we will be obligated to pay interest and the basis upon which interest
will be calculated, if other than that of a 360-day year consisting of twelve 30-day months;
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the place or places
where the principal of, and any premium, make-whole amount, interest or additional amounts on, the debt securities will be
payable, where the holders of the debt securities may surrender their debt securities for conversion, transfer or exchange,
and where the holders may serve notices or demands to us in respect of the debt securities and the indenture (Section 101);
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whether the debt
securities will be in registered or bearer form, and the terms and conditions relating to the form, and, if in registered
form, the denominations in which we will issue the debt securities if other than $1,000 or a multiple of $1,000 and, if in
bearer form, the denominations in which we will issue the debt securities if other than $5,000;
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the identity of
the trustee of the debt securities of the series and, if other than the trustee, the identity of each security registrar and/or
paying agent for debt securities of the series;
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the period or periods
during which the price or prices, including any premium at which, the currency or currencies in which, and the other terms
and conditions upon which, we may redeem the debt securities at our option, if we have such an option;
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any obligation that
we have to redeem, repay or purchase debt securities under any sinking fund or similar provision or at the option of a holder
of debt securities and the terms and conditions upon which we will redeem, repay or purchase all or a portion of the debt
securities under that obligation;
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the currency or
currencies in which we will sell the debt securities and in which the debt securities will be denominated and payable;
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whether the amount
of payment of principal of, and any premium, make-whole amount or interest on, the debt securities of the series may be determined
with reference to an index, formula or other method and the manner in which the amounts will be determined;
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whether the principal
of, and any premium, make-whole amount, additional amounts or interest on, the debt securities of the series are to be payable,
at our election or at the election of a holder of the debt securities, in a currency or currencies other than that in which
the debt securities are denominated or stated to be payable, the period or periods during which, and the terms and conditions
upon which, this election may be made, and the time and manner of, and identity of the exchange rate agent responsible for,
determining the exchange rate between the currency or currencies in which the debt securities are denominated or stated to
be payable and the currency or currencies in which the debt securities will be payable;
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the designation
of the initial exchange rate agent, if any, or any depositaries;
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any provisions granting
special rights to the holders of the debt securities of the series at the occurrence of named events;
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any additions to,
modifications of or deletions from the terms of the debt securities with respect to the events of default or covenants contained
in the indenture;
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whether the debt
securities of the series will be issued in certificated or book-entry form and the related terms and conditions, including
whether any debt securities will be issued in temporary and/or permanent global form, and if so, whether the owners of interests
in any permanent global debt security may exchange those interests for debt securities of that series and of like tenor of
any authorized form and denomination and the circumstances under which any exchanges may occur, if other than in the manner
provided in the indenture (Section 305), and, if debt securities of or within the series are to be issuable as a global debt
security, the identity of the depositary for such series;
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the date as of which
any bearer securities, and/or temporary global debt security representing outstanding securities of or within the series will
be dated if other than the date of original issuance of the first debt security of the series to be issued;
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if the debt securities
will be issued in definitive form only upon our receipt, or the trustee’s receipt, of certificates or other documents,
or upon the satisfaction of conditions, a description of those certificates, documents or conditions;
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if the debt securities
will be issued upon the exercise of debt warrants, the time, manner and place for the debt securities to be authenticated
and delivered;
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the applicability,
if any, of the defeasance and covenant defeasance provisions of the indenture, as described below under “Modification
of the Indentures—Discharge, Defeasance and Covenant Defeasance”;
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any applicable U.S.
federal income tax consequences, including whether and under what circumstances we will pay any additional amounts, as contemplated
in the indenture on the debt securities, to any holder who is not a U.S. person in respect of any tax, assessment or governmental
charge withheld or deducted and, if we will pay additional amounts, whether, and on what terms, we will have the option to
redeem the debt securities in lieu of paying the additional amounts;
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the provisions,
if any, relating to any security provided for the debt securities of the series;
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any other covenant
or warranty included for the benefit of the debt securities of the series;
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any proposed listing
of the debt securities on any securities exchange or market; and
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any other terms
of the debt securities or of any guarantees issued in connection with the debt securities not inconsistent with the provisions
of the indenture (Section 301).
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The
debt securities may provide for our payment of less than their entire principal amount if their maturity is accelerated as a result
of the occurrence and continuation of an event of default (Section 502). If this is the case, the debt securities would have what
is referred to as “original issue discount.” Any special U.S. federal income tax, accounting and other considerations
applicable to original issue discount securities will be described in the applicable prospectus supplement.
We
may issue debt securities from time to time, with the principal amount payable on any principal payment date, or the amount of
interest payable on any interest payment date, to be determined by reference to one or more currencies or currency exchange rates,
commodity prices, equity indices or other factors. Holders of debt securities with these features may receive payment of a principal
amount on any principal payment date, or a payment of interest on any interest payment date, that is greater than or less than
the amount of principal or interest otherwise payable on the applicable dates, depending upon the value on those dates of the
applicable currencies or currency exchange rates, commodity prices, equity indices or other factors.
Information
as to the methods for determining the amount of principal or interest payable on any date, the currencies or currency exchange
rates, commodity prices, equity indices or other factors to which the amount payable on that date is linked and additional tax
considerations will be included in the applicable prospectus supplement. All debt securities of any one series will be substantially
identical, except as to denomination and except as may otherwise be provided by an officers’ certificate or in any supplement
to the applicable indenture. We are not required to issue all of the debt securities of a series at the same time, and, unless
otherwise provided in the applicable indenture, supplemental indenture or officers’ certificate, we may re-open a series
without the consent of the holders of the debt securities of that series to issue additional debt securities of that series.
The
indentures do not contain any provisions that limit our ability to incur indebtedness or that would protect holders of debt securities
in the event we become a party to a highly-leveraged or similar transaction in which we would incur or acquire a large amount
of additional debt, but such provisions may appear in the applicable prospectus supplement. You should refer to the applicable
prospectus supplement for information regarding any deletions from, modifications of 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.
Guarantees
Debt
securities may be issued and unconditionally and irrevocably guaranteed by us or certain of our subsidiaries, if any, that are
listed as guarantors in the applicable supplement to this prospectus. Any guarantee would cover the timely payment of the principal
of, and any premium, make-whole amount, interest or sinking fund payments on, the debt securities, whether we make the payment
at a maturity date, as a result of acceleration or redemption or otherwise. We will more fully describe the existence and terms
of any guarantee of any of our debt securities by us or our subsidiaries in the prospectus supplement relating to those debt securities.
Denominations,
Interest, Registration and Transfer
Unless
the applicable prospectus supplement states otherwise, any debt securities of any series that we issue in registered form will
be issued in denominations of $1,000 and multiples of $1,000, and debt securities of any series that we issue in bearer form will
be issued in denominations of $5,000 (Section 302).
Unless
the applicable prospectus supplement states otherwise, the principal of, and any premium, make-whole amount or interest on, any
series of debt securities will be payable in the currency designated in the prospectus supplement at the corporate trust office
of the trustee, initially, the corporate trust office of the trustee to be named in the senior indenture. At our option, however,
payment of interest may be made by check mailed to the address of the person entitled to the interest payment as it appears in
the security register for the series or by wire transfer of funds to that person at an account maintained within the United States
(Sections 301, 305, 307 and 1002). We may at any time designate additional paying agents or rescind designation of any paying
agents or approve a change in the office through which any paying agent acts, except that we will be required to maintain a paying
agent in each place of payment for any series. All monies that we pay to a paying agent for the payment of any principal of, or
any premium, make-whole amount, interest or additional amounts on, any debt security which remains unclaimed at the end of two
years after that payment became due and payable will be repaid to us. After that time, the holder of the debt security will be
able to look only to us for payment (Section 1003).
Any
interest that we do not punctually pay on any interest payment date with respect to a debt security will cease to be payable to
the holder on the applicable regular record date and may either:
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be paid to the holder
at the close of business on a Special Record Date for the payment of defaulted interest, to be determined by the trustee (Sections
101 and 307); or
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be paid at any time
in any other lawful manner, as more fully described in the indentures.
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Subject
to certain limitations imposed upon debt securities issued in book-entry form, debt securities of any series will be exchangeable
for other debt securities of the same series and of the same total principal amount and authorized denomination upon the surrender
of the debt securities at the corporate trust office of the trustee. In addition, subject to certain limitations imposed upon
debt securities issued in book-entry form, the debt securities of any series may be surrendered for conversion, transfer or exchange
at the corporate trust office of the trustee. Every debt security surrendered for conversion, transfer or exchange must be duly
endorsed or accompanied by a written instrument of transfer. There will be no service charge for any transfer or exchange of any
debt securities, but we may require holders to pay any tax or other governmental charge payable in connection with the transfer
or exchange (Section 305).
If
the applicable prospectus supplement refers to us designating any transfer agent for any series of debt securities, in addition
to the trustee, we may at any time remove the transfer agent or approve a change in the location at which the transfer agent acts,
except that we will be required to maintain a transfer agent in each place of payment for any series of debt securities. We may
at any time designate additional transfer agents with respect to any series of debt securities (Section 1002).
Neither
we nor any trustee will be required to do any of the following:
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issue, register
the transfer of or exchange debt securities of any series during a period beginning at the opening of 15 business days before
there is a selection of debt securities of that series to be redeemed and ending at the close of business on the day of mailing
or publication of the relevant notice of redemption;
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register the transfer
of or exchange any debt security, or portion thereof, called for redemption, except the unredeemed portion of any debt security
being only partially redeemed;
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exchange any debt
security in bearer form that is selected for redemption, except that a debt security in bearer form may be exchanged for a
debt security in registered form of that series and like denomination, provided that the debt security in registered form
must be simultaneously surrendered for redemption; or
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issue or register
the transfer or exchange of any debt security that has been surrendered for repayment at the option of the holder, except
the portion, if any, of the debt security that will not be partially or entirely repaid (Section 305).
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Global
Debt Securities
The
debt securities of a series may be issued in the form of one or more fully registered global securities that will be deposited
with a depositary or with a custodian for a depositary identified in the prospectus supplement relating to the series and registered
in the name of the depositary or its nominee. In this case, we will issue one or more global securities in a denomination or total
denominations equal to the portion of the total principal amount of outstanding registered debt securities of the series to be
represented by the global security or securities. We expect that any global securities issued in the United States would be deposited
with The Depositary Trust Company, as depositary or its custodian. We may issue any global securities in fully registered form
on a temporary or permanent basis. Unless and until a global security is exchanged for debt securities in definitive registered
form, a permanent global security may not be transferred except as a whole by the depositary to its nominee or by a nominee to
the depositary or another nominee, or by the depositary or its nominee to a successor of the depositary or the successor depositary’s
nominee.
The
specific terms of the depositary arrangement with respect to any series of debt securities to be represented by a registered global
security will be described in the applicable prospectus supplement. We anticipate that the following provisions will apply to
depositary arrangements.
Ownership
of beneficial interests in a global security will be limited to persons that have accounts with, or are participants of, the depositary
for the registered global security, or persons that may hold interests through participants. When we issue a registered global
security, the depositary will credit, on its book-entry registration and transfer system, the participants’ accounts with
the respective principal amounts of the debt securities represented by the global security owned by those participants. The accounts
to be credited will be designated by any dealers, underwriters or agents participating in an offering of the debt securities,
or by us or the trustee if we are directly offering the debt securities. The participants’ ownership, and any transfer,
of a registered global security will be shown on records maintained by the depositary, and ownership of persons who hold debt
securities through participants will be reflected on the records of the participants. State and federal laws may impair a person’s
ability to own, transfer or pledge interests in a registered global security.
So
long as the depositary or its nominee is the registered owner of the global security, the depositary or its nominee, as the case
may be, will be considered the sole owner or holder of the debt securities represented by the global security for all purposes
under the applicable indenture. Except as set forth below, owners of beneficial interests in a global security will not be entitled
to have the debt securities represented by the registered global security registered in their names, will not receive or be entitled
to receive physical delivery of the debt securities in definitive form and will not be considered the owners or holders of the
debt securities under the applicable indenture. Accordingly, each person owning a beneficial interest in a registered global security
must rely on the depositary’s procedures and, if that person is not a participant, on the procedures of the participant
through which that person owns its interest to exercise any rights of a holder under the applicable indenture. We understand that
under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered
global security desires to give or take any action which a holder is entitled to give or take under the applicable indenture,
the depositary would authorize the participants holding the relevant beneficial interests to give or take the action, and the
participants would authorize beneficial owners owning through those participants to give or take the action or would otherwise
act upon the instructions of beneficial owners holding through them.
Payments
of principal of, and any premium, make-whole amount, interest or additional amounts on a registered global security will be made
to the depositary or its nominee, as the case may be, as the registered owner of the global security. Neither we, the trustee,
the paying agent nor the registrar, nor any other agent of ours or of the trustee, will have any responsibility or liability for
any aspect of the records relating to, or payments made on account of, beneficial ownership interests in the global security or
for maintaining, supervising or reviewing any records relating to the beneficial ownership interests.
We
expect that once the depositary receives any payment of principal of, any premium, make-whole amount, interest or additional amount
on, a registered global security, the depositary will immediately credit the participants’ accounts with payments in amounts
proportionate to their respective beneficial interests in the global security, as shown on the records of the depositary. We also
expect that payments by the participants to owners of beneficial interests in the registered global security held through the
participants will be governed by standing customer instructions and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of
the participants.
If
the depositary is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency under the Securities
Exchange Act of 1934, as amended, or the Exchange Act, and we do not appoint a successor depositary within 90 days, we will issue
debt securities in definitive form in exchange for the registered global security. In addition, we may at any time and in our
sole discretion decide not to have any of the debt securities of a series represented by one or more global securities, and, in
such event, we will issue debt securities in definitive form in exchange for all of the global security or securities representing
the debt securities. We will register any debt securities issued in definitive form in exchange for a global security in the name
or names that the depositary provides to the trustee. We expect that those names will be based upon directions received by the
depositary from the participants with respect to ownership of beneficial interests in the global security.
Debt
securities in bearer form may also be issued in the form of one or more global securities that will be deposited with a common
depositary for Euroclear and Clearstream, or with a nominee for the depositary identified in the applicable prospectus supplement.
We will describe in the applicable prospectus supplement the specific terms and procedures of the depositary arrangement, including
the specific terms of the depositary arrangement and any specific procedures, for the issuance of debt securities in definitive
form in exchange for a global security in bearer form, with respect to any portion of a series of debt securities to be represented
by a global security in bearer form.
Merger,
Consolidation or Sale
We
may consolidate with, or sell, lease or convey all or substantially all of our assets to, or merge with or into, any other corporation,
trust or entity provided that:
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we are the survivor
in the transaction, or the survivor, if not us, is an entity organized under the laws of the United States or a state of the
United States, or the State of Israel, which entity expressly assumes by supplemental indenture the due and punctual payment
of the principal of, and any premium, make-whole amount, interest and additional amounts on, all of the outstanding debt securities
and the due and punctual performance and observance of all of the covenants and conditions contained in the indenture;
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immediately after
giving effect to the transaction and treating any indebtedness that becomes an obligation of ours or one of our subsidiaries
as a result of the transaction as having been incurred by us or our subsidiary at the time of the transaction, there is no
event of default under the applicable indenture and no event which, after notice or the lapse of time, or both, would become
an event of default; and
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we deliver an officers’
certificate and an opinion of our legal counsel, each as to the satisfaction of conditions contained in the applicable indenture
(Sections 801 and 803).
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This
covenant would not apply to any recapitalization transaction, a change of control of us or a transaction in which we incur a large
amount of additional debt, unless the transactions or change of control included a merger, consolidation or transfer or lease
of substantially all of our assets. Except as may be described in the applicable prospectus supplement, there are no covenants
or other provisions in the indentures providing for a “put” right or increased interest or that would otherwise afford
holders of debt securities additional protection in the event of a recapitalization transaction, a change of control of us or
a transaction in which we incur a large amount of additional debt.
Certain
Covenants
Provision
of Financial Information
Whether
or not we are subject to Section 13 or 15(d) of the Exchange Act, we will file annual reports and other documents with the
SEC pursuant to Sections 13 and 15(d) of the Exchange Act as if we were so subject, on or prior to the dates by which we are or
would have been required to file those documents if we were so subject. In any event, we will:
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file with the applicable
trustee copies of the annual reports and other documents that we are or would be required to file with the SEC under Sections
13 and 15(d) of the Exchange Act within 15 days of each of the respective dates by which we are or would have been required
to file those reports with the SEC; and
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promptly upon written
request and payment of the reasonable cost of duplication and delivery, supply copies of those documents to holders and any
prospective holders of debt securities if filing those documents with the SEC is not permitted under the Exchange Act (Section
1005).
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Additional
Covenants
Any
additional covenants with respect to any series of debt securities will be described in the applicable prospectus supplement.
Events
of Default, Notice and Waiver
Except
as otherwise provided in the applicable prospectus supplement, the following events are “events of default” with respect
to any series of debt securities that we may issue under the indentures:
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we fail for 30 days
to pay any installment of interest or any additional amounts payable on any debt security of that series;
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we fail to pay the
principal of, or any premium or make-whole amount on, any debt security of that series when due, either at maturity, redemption
or otherwise;
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we fail to make
any sinking fund payment as required for any debt security of that series;
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we breach or fail
to perform any covenant or warranty contained in the applicable indenture, other than a covenant added solely for the benefit
of a different series of debt securities issued under the applicable indenture or except as otherwise provided for in the
applicable indenture, and our breach or failure to perform continues for 60 days after we have received written notice in
accordance with the applicable indenture of our breach or failure to perform;
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we default under
a bond, debenture, note, mortgage, indenture or instrument evidencing indebtedness for money borrowed by us, or by any subsidiaries
of ours that we have guaranteed or for which we are directly responsible or liable as obligor or guarantor, that has a principal
amount outstanding of $20,000,000 or more, other than indebtedness which is non-recourse to us or our subsidiaries, which
default has caused the indebtedness to become due and payable earlier than it would otherwise have become due and payable,
and the indebtedness has not been discharged or the acceleration has not been rescinded or annulled, within 30 days after
written notice was provided to us in accordance with the applicable indenture;
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the bankruptcy,
insolvency or reorganization or court appointment of a receiver, liquidator or appointment of a trustee for us or of any of
our Significant Subsidiaries, or for all or substantially all of our properties or the properties of our Significant Subsidiaries
(Section 101); and
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any other event
of default described in the applicable prospectus supplement and indenture (Section 501).
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If
there is a continuing event of default with respect to outstanding debt securities of a series, then the trustee or the holders
of not less than 25% in aggregate principal amount of the outstanding debt securities of that series, voting as a single class,
may declare immediately due and payable the principal amount or other amount as may be specified by the terms of those debt securities
and any premium or make-whole amount on the debt securities of that series; provided, however, that upon the occurrence and continuation
of certain defaults related to bankruptcy or insolvency, the principal (or, if any debt securities are Original Issue Discount
Securities or Indexed Securities, such portion of the principal as may be specified in the terms thereof) of, and the Make-Whole
Amount, if any, on, all the outstanding debt securities of that series and any accrued interest through the occurrence of such
Event of Default, shall become due and payable immediately, without any declaration or other act by the trustee or any other holder.
However, at any time after an acceleration with respect to debt securities of a series has been made, but before a judgment or
decree for payment of the money due has been obtained by the trustee, the holders of not less than a majority in principal amount
of the outstanding debt securities of that series may cancel the acceleration and annul its consequences if:
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we pay or deposit
with the trustee all required payments of the principal of, and any premium, make-whole amount, interest, and additional amounts
on, the applicable series of debt securities, plus fees, expenses, disbursements and advances of the trustee; and
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all events of default,
other than the nonpayment of accelerated principal, premium, or interest, with respect to the applicable series of debt securities
have been cured or waived as provided in the indentures (Section 502).
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The
indentures also provide that the holders of not less than a majority in principal amount of the outstanding debt securities of
any series may waive any past default with respect to that series and its consequences (except in respect of certain events of
default related to bankruptcy or insolvency, the waiver of which requires approval of a majority in principal amount of all outstanding
debt securities under the applicable indenture), except a default involving:
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our failure to pay
the principal of, and any premium, make-whole amount, interest or additional amounts on, any debt security; or
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a covenant or provision
contained in the applicable indenture that cannot be modified or amended without the consent of the holders of each outstanding
debt security affected by the default (Section 513).
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The
trustee is generally required to give notice to the holders of debt securities of each affected series within 90 days of a default
actually known to a Responsible Officer of the trustee unless the default has been cured or waived. The trustee may, however,
withhold notice of default if the Responsible Officers of the trustee in good faith determine that the withholding of such notice
is in the interests of the holders of the debt securities of that series unless the default relates to:
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our failure to pay
the principal of, and any premium, make-whole amount, interest or additional amounts on, any debt security of that series;
or
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any sinking fund
installment for any debt securities of that series (Sections 101 and 601).
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Each
indenture provides that no holder of debt securities of any series may institute a proceeding with respect to the indenture or
for any remedy under the indenture, unless the trustee fails to act for 60 days after it has received a written notice of a continuing
event of default with respect to the debt securities of that series from such holder and a written request to institute proceedings
in respect of an event of default from the holders of not less than 25% in principal amount of the outstanding debt securities
of that series (except in respect of certain events of default related to bankruptcy or insolvency, which requires the written
request of not less than 25% in principal amount of all outstanding debt securities under the applicable indenture), as well as
an offer of indemnity satisfactory to the trustee; provided, that no direction inconsistent with such request has been given to
the trustee during such 60-day period by the holders of a majority in principal amount of outstanding debt securities of that
series (Section 507). This provision will not prevent, however, any holder of debt securities from instituting suit for the enforcement
of payment of the principal of, and any premium, make-whole amount, interest or additional amounts on, the debt securities at
their respective due dates (Section 508).
Subject
to provisions in each indenture relating to the trustee’s duties in case of default, the trustee is not under an obligation
to exercise any of its rights or powers under the indenture at the request or direction of any holders of any series of debt securities
then outstanding, unless the holders have offered to the trustee security or indemnity satisfactory to it (Section 602). Subject
to these provisions for the indemnification of the trustee, the holders of not less than a majority in principal amount of all
outstanding debt securities under the applicable indenture will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the trustee, or of exercising any trust or power conferred upon the trustee. The trustee
may, however, refuse to follow any direction which conflicts with any law or the applicable indenture, which may involve the trustee
in personal liability or which may be unduly prejudicial to the holders of debt securities of the applicable series not joining
in the direction (Section 512).
Within
120 days after the close of each fiscal year, we must deliver to the trustee a certificate, signed by one of several specified
officers, stating that officer’s knowledge of our compliance with all the conditions and covenants under the applicable
indenture, and, in the event of any noncompliance, specifying the noncompliance and the nature and status of the noncompliance
(Section 1006).
Modification
of the Indentures
Modification
Without Consent of the Holders
Together
with the trustee, we may, when authorized by our Board of Directors, modify each of the indentures without the consent of any
holder of debt securities for any of the following purposes:
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to evidence the
succession of another person to us as obligor under the indenture;
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to add to our existing
covenants additional covenants for the benefit of the holders of all or any series of debt securities, or to surrender any
right or power conferred upon us in the indenture;
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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 or change
any provisions of the indenture to facilitate the issuance of, or to liberalize the terms of, debt securities in bearer form,
or to permit or facilitate the issuance of debt securities in uncertificated form, provided that this action will not adversely
affect the interests of the holders of the debt securities of any series in any material respect;
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to add, change or
eliminate any provisions of the indenture, provided that any addition, change or elimination shall neither apply to any debt
security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision
nor modify the rights of the holder of any debt security with respect to such provision or become effective only when there
are no outstanding debt securities;
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to secure previously
unsecured debt securities;
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to establish the
form or terms of debt securities of any series, including the provisions and procedures, if applicable, for the conversion
or exchange of the debt securities into our ordinary shares or other securities or property;
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to evidence and
provide for the acceptance or appointment of a successor trustee or facilitate the administration of the trusts under the
indenture by more than one trustee;
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to make any provision
with respect to the conversion or exchange of rights of holders pursuant to the requirements of the indenture;
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to cure any ambiguity,
defect or inconsistency in the indenture, provided that the action does not adversely affect the interests of holders of debt
securities of any series issued under the indenture;
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to close the indenture
with respect to the authentication and delivery of additional series of debt securities or to qualify, or maintain qualification
of, the indenture under the Trust Indenture Act; or
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to supplement any
of the provisions of the indenture to the extent necessary to permit or facilitate defeasance and discharge of any series
of debt securities, provided that the action shall not adversely affect the interests of the holders of the debt securities
of any series in any material respect (Section 901).
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Modification
With Consent of Holders
Together
with the trustee, we may, when authorized by our Board of Directors, also make modifications and amendments to each indenture
with the consent of the holders of a majority in principal amount of the outstanding debt securities of all affected series. Without
the consent of each affected holder, however, no modification to either indenture may:
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change the stated
maturity of the principal of, or any premium, make-whole amount or installment of principal of, or interest on, any debt security;
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reduce the principal
amount of, or the rate or amount of interest on, or any premium or make-whole amount payable on redemption of, or any additional
amounts payable with respect to, any debt security or change any obligation to pay additional amounts except as permitted
by the indenture;
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reduce the amount
of principal of an original issue discount security or make-whole amount that would be due and payable upon declaration of
acceleration of the maturity of the original discount or other security, or would be provable in bankruptcy, or adversely
affect any right of repayment of the holder of any debt security;
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change the place
of payment or the currency or currencies of payment of the principal of, and any premium, make-whole amount, interest, or
additional amounts on, any debt security;
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impair the right
to institute suit for the enforcement of any payment on or with respect to any debt security;
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reduce the percentage
of the holders of outstanding debt securities of any series necessary to modify or amend the indenture, to waive compliance
with provisions of the indenture or defaults and their consequences under the indenture, or to reduce the quorum or voting
requirements contained in the indenture;
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make any change
that adversely affects the right to convert or exchange any debt security other than as permitted by the indenture or decrease
the conversion or exchange rate or increase the conversion or exchange price of any such debt security; or
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modify any of the
foregoing provisions or any of the provisions relating to the waiver of past defaults or covenants, except to increase the
required percentage of holders necessary to effect that action or to provide that other provisions may not be modified or
waived without the consent of the holder of the debt security (Section 902).
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Documentation
Any
modification or amendment of an indenture, whether effected with or without the consent of any holder, will be documented in a
supplemental indenture.
Discharge,
Defeasance and Covenant Defeasance
Unless
the terms of a series of debt securities provide otherwise, under the indentures, we may discharge some of our respective obligations
to holders of any series of debt securities that:
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have not already
been delivered to the trustee for cancellation and that either have become due and payable or will become due and payable
within one year; or
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are
scheduled for redemption within one year.
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We
can discharge these obligations by irrevocably depositing with the trustee funds in the currency or currencies in which the debt
securities are payable in an amount sufficient to pay and discharge the entire indebtedness on those debt securities, including
principal of, and any premium, make-whole amount, interest and additional amounts on, the debt securities on and up to the date
of such deposit, or, if the debt securities have become due and payable, on and up to the stated maturity or redemption date,
as the case may be (Section 401).
In
addition, if the terms of the debt securities of a series permit us to do so, we may elect either of the following:
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to
defease and be discharged from any and all obligations with respect to the debt securities, except, among other things, our
obligations to the holders of Outstanding Securities (Sections 1402, 1403 and 1404);
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pay
any additional amounts upon the occurrence of several particular tax and other events;
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pay
the fees, expenses and indemnitees of the trustee;
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register
the transfer or exchange of the debt securities;
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replace
temporary or mutilated, destroyed, lost or stolen debt securities;
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maintain
an office or agency for the debt securities; and
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hold
monies for payment in trust; or
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to
be released from our obligations with respect to the debt securities under sections of the applicable indenture described
under “Certain Covenants” or, if permitted by the terms of the debt securities, our obligations with respect to
any other covenant.
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If
we choose to be released from our respective obligations under the covenants, any failure to comply with any of the obligations
imposed on us by the covenants will not constitute a default or an event of default with respect to the debt securities (Section
1403). However, to make either election, we must irrevocably deposit with the trustee an amount, in such currency or currencies
in which the debt securities are payable at their stated maturity, or in Government Obligations (Section 101), or both, that will
provide sufficient funds to pay the principal of, and any premium, make-whole amount, interest and additional amounts on, the
debt securities, and any mandatory sinking fund or similar payments on the debt securities, on the relevant scheduled due dates.
We
may defease and discharge the obligations, as described in the preceding paragraphs, only if, among other things, we have delivered
to the trustee an opinion of counsel to the effect that:
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the
holders of the debt securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of
the defeasance or covenant defeasance described in the previous paragraphs and will be subject to U.S. federal income tax
on the same amounts, in the same manner and at the same times as would have been the case if the defeasance or covenant defeasance
had not occurred; and
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in
the case of defeasance, the opinion of counsel must refer to, and be based upon, a ruling of the Internal Revenue Service,
or IRS, or a change in applicable U.S. federal income tax laws occurring after the date of the applicable indenture (Section
1404).
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Unless
otherwise provided in the applicable prospectus supplement, if, after we have deposited funds and/or Government Obligations to
effect defeasance or covenant defeasance with respect to debt securities of any series:
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the
holder of a debt security of the series elects to receive payment in a currency other than that in which the deposit has been
made in respect of the debt security (Section 301); or
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a
conversion event, as defined below, occurs in respect of the currency in which the deposit has been made,
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then
the indebtedness represented by the debt security will be fully discharged and satisfied through the payment of the principal
of, and any premium, make-whole amount and interest on, the debt security as they become due, and additional amounts, if any,
out of the proceeds yielded by converting the amount deposited in respect of the debt security into the currency in which the
debt security becomes payable as a result of the holder’s election or the conversion event based on the applicable market
exchange rate (Section 1405).
Unless
otherwise provided in the applicable prospectus supplement, a “conversion event” means the cessation of use of:
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a
currency issued by the government of one or more countries other than the United States, both by the government of the country
that issued that currency and for the settlement of transactions by a central bank or other public institutions of or within
the international banking community;
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the
European Community, both within the European Monetary System and, for the settlement of transactions, by public institutions
of or within the European Community; or
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any
currency for the purposes for which it was established.
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Unless
otherwise provided in the applicable prospectus supplement, we will make all payments of principal of, and any premium, make-whole
amount, interest and additional amounts on, any debt security that is payable in a foreign currency that ceases to be used by
its government of issuance in United States dollars.
In
the event that we effect covenant defeasance with respect to any debt securities and the debt securities are declared due and
payable because of the occurrence of an event of default other than:
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the
event of default described in the fourth bullet under “Certain Covenants—Events of Default, Notice and Waiver,”
which would no longer be applicable to the debt securities of that series (Section 1005); or
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the
event of default described in the sixth bullet under “Certain Covenants—Events of Default, Notice and Waiver”
with respect to a covenant as to which there has been covenant defeasance,
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then
the amount on deposit with the trustee will still be sufficient to pay amounts due on the debt securities at the time of their
stated maturity but may not be sufficient to pay amounts due on the debt securities at the time of the acceleration resulting
from the event of default. In this case, we would remain liable to make payment of the amounts due at the time of acceleration.
The
applicable prospectus supplement may describe any additional provisions permitting defeasance or covenant defeasance, including
any modifications to the provisions described above, with respect to a particular series of debt securities.
Conversion
and Exchange Rights
The
terms on which debt securities of any series may be convertible into or exchangeable for our ordinary shares or other securities
or property will be described in the applicable prospectus supplement. These terms will include:
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the
conversion or exchange price, or the manner of calculating the price;
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the
exchange or conversion period;
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whether
the conversion or exchange is mandatory, or voluntary at the option of the holder or at our option;
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any
restrictions on conversion or exchange in the event of redemption of the debt securities and any restrictions on conversion
or exchange; and
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the
means of calculating the number of shares of our ordinary shares or other securities or property of us to be received by the
holders of debt securities.
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The
conversion or exchange price of any debt securities of any series that are convertible into our ordinary shares, may be adjusted
for any stock dividends, stock splits, reclassification, combinations or similar transactions, as set forth in the applicable
prospectus supplement (Article Sixteen).
Governing
Law
The
indentures are governed by the laws of the State of New York.
Redemption
of Debt Securities
The
debt securities may be subject to optional or mandatory redemption on terms and conditions described in the applicable prospectus
supplement. Subject to such terms, we may opt at any time to partially or entirely redeem the debt securities.
From
and after notice has been given as provided in the applicable indenture, if funds for the redemption of any debt securities called
for redemption shall have been made available on the redemption date, the debt securities will cease to bear interest on the date
fixed for the redemption specified in the notice, and the only right of the holders of the debt securities will be to receive
payment of the redemption price.
DESCRIPTION
OF UNITS
We
may issue units comprised of one or more of the other securities that may be offered under this prospectus, 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.
The
prospectus supplement relating to any units we offer will, to the extent applicable, include specific terms relating to the offering,
including some or all of the following:
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the
material terms of the units and of the securities comprising the units, including whether and under what circumstances those
securities may be held or transferred separately;
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any
material provisions relating to the issuance, payment, settlement, transfer or exchange of the units or of the securities
comprising the units; and
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any
material provisions of the governing unit agreement that differ from those described above.
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The
description in the applicable prospectus supplement of any units we offer will not necessarily be complete and will be qualified
in its entirety by reference to the applicable unit agreement, which will be filed with the SEC if we offer units. For more information
on how you can obtain copies of the applicable unit agreement if we offer units, see “Where You Can Find More Information”
and “Incorporation of Certain Documents by Reference” beginning on page 30. We urge you to read the applicable unit
agreement and any applicable prospectus supplement in their entirety.
FORMS
OF SECURITIES
Each
debt security and, to the extent applicable, warrant, subscription right and unit, will be represented either by a certificate
issued in definitive form to a particular investor or by one or more global securities representing the entire issuance of securities.
Certificated securities in definitive form and global securities will be issued in registered form. Definitive securities name
you or your nominee as the owner of the security, and in order to transfer or exchange these securities or to receive payments
other than interest or other interim payments, you or your nominee must physically deliver the securities to the trustee, registrar,
paying agent or other agent, as applicable. Global securities name a depositary or its nominee as the owner of the debt securities
or warrants represented by these global securities. The depositary maintains a computerized system that will reflect each investor’s
beneficial ownership of the securities through an account maintained by the investor with its broker/dealer, bank, trust company
or other representative, as we explain more fully below.
Global
Securities
Registered
Global Securities
. We may issue the registered debt securities and, to the extent applicable, warrants, subscription rights
and units, in the form of one or more fully registered global securities that will be deposited with a depositary or its nominee
identified in the applicable prospectus supplement and registered in the name of that depositary or nominee. In those cases, one
or more registered global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate
principal or face amount of the securities to be represented by registered global securities. Unless and until it is exchanged
in whole for securities in definitive registered form, a registered global security may not be transferred except as a whole by
and among the depositary for the registered global security, the nominees of the depositary or any successors of the depositary
or those nominees.
If
not described below, any specific terms of the depositary arrangement with respect to any securities to be represented by a registered
global security will be described in the prospectus supplement relating to those securities. We anticipate that the following
provisions will apply to all depositary arrangements.
Ownership
of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with
the depositary or persons that may hold interests through participants. Upon the issuance of a registered global security, the
depositary will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective
principal or face amounts of the securities beneficially owned by the participants. Any dealers, underwriters or agents participating
in the distribution of the securities will designate the accounts to be credited. Ownership of beneficial interests in a registered
global security will be shown on, and the transfer of ownership interests will be effected only through, records maintained by
the depositary, with respect to interests of participants, and on the records of participants, with respect to interests of persons
holding through participants. The laws of some states may require that some purchasers of securities take physical delivery of
these securities in definitive form. These laws may impair your ability to own, transfer or pledge beneficial interests in registered
global securities.
So
long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee,
as the case may be, will be considered the sole owner or holder of the securities represented by the registered global security
for all purposes under the applicable indenture or warrant agreement. Except as described below, owners of beneficial interests
in a registered global security will not be entitled to have the securities represented by the registered global security registered
in their names, will not receive or be entitled to receive physical delivery of the securities in definitive form and will not
be considered the owners or holders of the securities under the applicable indenture or warrant agreement. Accordingly, each person
owning a beneficial interest in a registered global security must rely on the procedures of the depositary for that registered
global security and, if that person is not a participant, on the procedures of the participant through which the person owns its
interest, to exercise any rights of a holder under the applicable indenture or warrant agreement. We understand that under existing
industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global security
desires to give or take any action that a holder is entitled to give or take under the applicable indenture or warrant agreement,
the depositary for the registered global security would authorize the participants holding the relevant beneficial interests to
give or take that action, and the participants would authorize beneficial owners owning through them to give or take that action
or would otherwise act upon the instructions of beneficial owners holding through them.
Principal,
premium, if any, interest payments on debt securities and any payments to holders with respect to warrants represented by a registered
global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee, as the case
may be, as the registered owner of the registered global security. None of the Company, the trustees, the warrant agents or any
other agent of the Company, the trustees or the warrant agents will have any responsibility or liability for any aspect of the
records relating to payments made on account of beneficial ownership interests in the registered global security or for maintaining,
supervising or reviewing any records relating to those beneficial ownership interests.
We
expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment
of principal, premium, interest or other distribution of underlying securities or other property to holders on that registered
global security, will immediately credit participants’ accounts in amounts proportionate to their respective beneficial
interests in that registered global security as shown on the records of the depositary. We also expect that payments by participants
to owners of beneficial interests in a registered global security held through participants will be governed by standing customer
instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form
or registered in “street name,” and will be the responsibility of those participants.
If
the depositary for any of these securities represented by a registered global security is at any time unwilling or unable to continue
as depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor depositary registered as a
clearing agency under the Exchange Act is not appointed by us within 90 days, we will issue securities in definitive form in exchange
for the registered global security that had been held by the depositary. Any securities issued in definitive form in exchange
for a registered global security will be registered in the name or names that the depositary gives to the relevant trustee or
warrant agent or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will be based
upon directions received by the depositary from participants with respect to ownership of beneficial interests in the registered
global security that had been held by the depositary.
PLAN
OF DISTRIBUTION
We
may sell the securities described in this prospectus from time to time in one or more of the following ways:
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or through one or more underwriters on a firm commitment or agency basis;
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through
put or call option transactions relating to the securities;
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to
or through dealers, who may act as agents or principals, including a block trade (which may involve crosses) in which a broker
or dealer so engaged will attempt to sell as agent but may position and resell a portion of the block as principal to facilitate
the transaction;
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through
privately negotiated transactions;
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purchases
by a broker or dealer as principal and resale by such broker or dealer for its own account pursuant to this prospectus;
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directly
to purchasers, including our affiliates, through a specific bidding or auction process, on a negotiated basis or otherwise;
to or through one or more underwriters on a firm commitment or best efforts basis;
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exchange
distributions and/or secondary distributions;
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ordinary
brokerage transactions and transactions in which the broker solicits purchasers;
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in
an “at the market offering”, within the meaning of Rule 415(a)(4) of the Securities into an existing trading market,
on an exchange or otherwise;
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transactions
not involving market makers or established trading markets, including direct sales or privately negotiated transactions;
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transactions
in options, swaps or other derivatives that may or may not be listed on an exchange;
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through
any other method permitted pursuant to applicable law; or
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through
a combination of any such methods of sale.
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At
any time a particular offer of the securities covered by this prospectus is made, a revised prospectus or prospectus supplement,
if required, will be distributed which will set forth the aggregate amount of securities covered by this prospectus being offered
and the terms of the offering, including the name or names of any underwriters, dealers, brokers or agents, any discounts, commissions,
concessions and other items constituting compensation from us and any discounts, commissions or concessions allowed or re-allowed
or paid to dealers. Such prospectus supplement, and, if necessary, a post-effective amendment to the registration statement of
which this prospectus is a part, will be filed with the SEC to reflect the disclosure of additional information with respect to
the distribution of the securities covered by this prospectus. In order to comply with the securities laws of certain states,
if applicable, the securities sold under this prospectus may only be sold through registered or licensed broker-dealers. In addition,
in some states the securities may not be sold unless they have been registered or qualified for sale in the applicable state or
an exemption from registration or qualification requirements is available and is complied with.
The
distribution of securities may be effected from time to time in one or more transactions, including block transactions and transactions
on the Nasdaq Capital Market or any other organized market where the securities may be traded. The securities may be sold at a
fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices relating to the prevailing
market prices or at negotiated prices. The consideration may be cash or another form negotiated by the parties. Agents, underwriters
or broker-dealers may be paid compensation for offering and selling the securities. That compensation may be in the form of discounts,
concessions or commissions to be received from us or from the purchasers of the securities. Any dealers and agents participating
in the distribution of the securities may be deemed to be underwriters, and compensation received by them on resale of the securities
may be deemed to be underwriting discounts. If any such dealers or agents were deemed to be underwriters, they may be subject
to statutory liabilities under the Securities Act.
Agents
may from time to time solicit offers to purchase the securities. If required, we will name in the applicable prospectus supplement
any agent involved in the offer or sale of the securities and set forth any compensation payable to the agent. Unless otherwise
indicated in the prospectus supplement, any agent will be acting on a best efforts basis for the period of its appointment. Any
agent selling the securities covered by this prospectus may be deemed to be an underwriter, as that term is defined in the Securities
Act, of the securities.
To
the extent that we make sales to or through one or more underwriters or agents in at-the-market offerings, we will do so pursuant
to the terms of a distribution agreement between us and the underwriters or agents. If we engage in at-the-market sales pursuant
to a distribution agreement, we will sell any of our listed securities to or through one or more underwriters or agents, which
may act on an agency basis or on a principal basis. During the term of any such agreement, we may sell any of our listed securities
on a daily basis in exchange transactions or otherwise as we agree with the underwriters or agents. The distribution agreement
will provide that any of our listed securities which are sold will be sold at prices related to the then prevailing market prices
for our listed securities. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid cannot be
determined at this time and will be described in a prospectus supplement. Pursuant to the terms of the distribution agreement,
we also may agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase, blocks of our listed
securities. The terms of each such distribution agreement will be set forth in more detail in a prospectus supplement to this
prospectus.
If
underwriters are used in a sale, securities will be acquired by the underwriters for their own account and may be resold from
time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale, or under delayed delivery contracts or other contractual commitments. Securities may be offered
to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. If an underwriter or underwriters are used in the sale of securities, an underwriting agreement
will be executed with the underwriter or underwriters, as well as any other underwriter or underwriters, with respect to a particular
underwritten offering of securities, and will set forth the terms of the transactions, including compensation of the underwriters
and dealers and the public offering price, if applicable. The prospectus and prospectus supplement will be used by the underwriters
to resell the securities.
If
a dealer is used in the sale of the securities, we or an underwriter will sell the securities to the dealer, as principal. The
dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. To
the extent required, we will set forth in the prospectus supplement the name of the dealer and the terms of the transactions.
We
may directly solicit offers to purchase the securities and may make sales of securities directly to institutional investors or
others. These persons may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of
the securities. To the extent required, the prospectus supplement will describe the terms of any such sales, including the terms
of any bidding or auction process, if used.
Agents,
underwriters and dealers may be entitled under agreements which may be entered into with us to indemnification by us against specified
liabilities, including liabilities incurred under the Securities Act, or to contribution by us to payments they may be required
to make in respect of such liabilities. If required, the prospectus supplement will describe the terms and conditions of the indemnification
or contribution. Some of the agents, underwriters or dealers, or their affiliates may be customers of, engage in transactions
with or perform services for us or our subsidiaries.
Any
person participating in the distribution of securities registered under the registration statement that includes this prospectus
will be subject to applicable provisions of the Exchange Act, and the applicable SEC rules and regulations, including, among others,
Regulation M, which may limit the timing of purchases and sales of any of our securities by that person. Furthermore, Regulation
M may restrict the ability of any person engaged in the distribution of our securities to engage in market-making activities with
respect to our securities. These restrictions may affect the marketability of our securities and the ability of any person or
entity to engage in market-making activities with respect to our securities.
Certain
persons participating in an offering may engage in over-allotment, stabilizing transactions, short-covering transactions, penalty
bids and other transactions that stabilize, maintain or otherwise affect the price of the offered securities. These activities
may maintain the price of the offered securities at levels above those that might otherwise prevail in the open market, including
by entering stabilizing bids, effecting syndicate covering transactions or imposing penalty bids, each of which is described below:
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a
stabilizing bid means the placing of any bid, or the effecting of any purchase, for the purpose of pegging, fixing or maintaining
the price of a security.
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a
syndicate covering transaction means the placing of any bid on behalf of the underwriting syndicate or the effecting of any
purchase to reduce a short position created in connection with the offering.
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a
penalty bid means an arrangement that permits the managing underwriter to reclaim a selling concession from a syndicate member
in connection with the offering when offered securities originally sold by the syndicate member are purchased in syndicate
covering transactions.
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These
transactions may be effected on an exchange or automated quotation system, if the securities are listed on that exchange or admitted
for trading on that automated quotation system, or in the over-the-counter market or otherwise.
If
so indicated in the applicable prospectus supplement, we will authorize agents, underwriters or dealers to solicit offers from
certain types of institutions to purchase offered securities from us at the public offering price set forth in such prospectus
supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. Such contracts
will be subject only to those conditions set forth in the prospectus supplement and the prospectus supplement will set forth the
commission payable for solicitation of such contracts.
In
addition, ordinary shares or warrants may be issued upon conversion of or in exchange for debt securities or other securities.
Any
underwriters to whom offered securities are sold for public offering and sale may make a market in such offered securities, but
such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. The offered
securities may or may not be listed on a national securities exchange. No assurance can be given that there will be a market for
the offered securities.
Any
securities that qualify for sale pursuant to Rule 144 or Regulation S under the Securities Act may be sold under Rule 144 or Regulation
S rather than pursuant to this prospectus.
In
connection with offerings made through underwriters or agents, we may enter into agreements with such underwriters or agents pursuant
to which we receive our outstanding securities in consideration for the securities being offered to the public for cash. In connection
with these arrangements, the underwriters or agents may also sell securities covered by this prospectus to hedge their positions
in these outstanding securities, including in short sale transactions. If so, the underwriters or agents may use the securities
received from us under these arrangements to close out any related open borrowings of securities.
We
may enter into derivative transactions with third parties or sell securities not covered by this prospectus to third parties in
privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, such
third parties (or affiliates of such third parties) may sell securities covered by this prospectus and the applicable prospectus
supplement, including in short sale transactions. If so, such third parties (or affiliates of such third parties) may use securities
pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of shares, and may
use securities received from us in settlement of those derivatives to close out any related open borrowings of shares. The third
parties (or affiliates of such third parties) in such sale transactions will be underwriters and will be identified in the applicable
prospectus supplement (or a post-effective amendment).
We
may loan or pledge securities to a financial institution or other third party that in turn may sell the securities using this
prospectus. Such financial institution or third party may transfer its short position to investors in our securities or in connection
with a simultaneous offering of other securities offered by this prospectus or in connection with a simultaneous offering of other
securities offered by this prospectus.
LEGAL MATTERS
Certain legal matters
with respect to Israeli law and with respect to the validity of the offered securities under Israeli law will be passed upon for
us by Meitar Liquornik Geva Leshem Tal, Ramat Gan, Israel. Certain legal matters with respect to U.S. federal securities law will
be passed upon for us by McDermott Will & Emery LLP, New York, NY. Additional legal matters may be passed upon for us or any
underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The financial statements
incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2018 have been
so incorporated in reliance on the report (which contains an explanatory paragraph relating to the Company’s ability to
continue as a going concern as described in Note 1(2) to the financial statements) of Kesselman & Kesselman, Certified Public
Accountants (Isr.), an independent registered public accounting firm and a member firm of PricewaterhouseCoopers International
Limited, given on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
Prior to January 1,
2019, we were subject to the reporting requirements of the Exchange Act that are applicable to a foreign private issuer. In accordance
with the Exchange Act, we filed reports, including annual reports on Form 20-F, with the SEC. We also furnished to the SEC under
cover of Form 6-K material information required to be made public in Israel, filed with and made public by any stock exchange or
distributed by us to our shareholders. We were also exempt from the rules under the Exchange Act prescribing the furnishing and
content of proxy statements to shareholders and our officers, directors and principal shareholders were exempt from the “short-swing
profits” reporting and liability provisions contained in Section 16 of the Exchange Act and related Exchange Act rules.
Effective January 1,
2019, we are required to file periodic reports and registration statements on U.S. domestic issuer forms with the SEC, which are
more detailed and extensive in certain respects, and which must be filed more promptly, than the forms available to a foreign private
issuer. In addition, we are now required to comply with U.S. proxy requirements and Regulation FD (Fair Disclosure) and our officers,
directors and principal shareholders are subject to the beneficial ownership reporting and short-swing profit recovery requirements
in Section 16 of the Exchange Act.
We have filed a registration
statement on Form S-3 with the SEC under the Securities Act of 1933. This prospectus is part of the registration statement but
the registration statement includes and incorporates by reference additional information and exhibits. We file annual, quarterly
and current reports, proxy statements and other information with the SEC. The SEC maintains a web site that contains reports, proxy
and information statements and other information regarding companies, such as ours, that file documents electronically with the
SEC. The address of that site on the worldwide web is http://www.sec.gov. The information on the SEC’s web site is not part
of this prospectus, and any references to this web site or any other web site are inactive textual references only.
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE
The SEC allows us
to “incorporate by reference” information that we file with it into this prospectus, which means that we can disclose
important information to you by referring you to those documents. The information incorporated by reference is an important part
of this prospectus. The information incorporated by reference is considered to be a part of this prospectus, and information that
we file later with the SEC will automatically update and supersede information contained in this prospectus and any accompanying
prospectus supplement.
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our Annual Report on Form 10-K for the fiscal year ended on December 31, 2018, filed with the SEC on February 27, 2019;
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our Current
Reports on Form 8-K (other than the information furnished pursuant to Item 2.02 or 7.01 thereof or related exhibits
furnished pursuant to Item 9.01 thereof) filed with the SEC January 2, 2019, January 7, 2019, January 25, 2019, and
February 27, 2019; and
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the description of our ordinary shares contained in Item 1 of the Registration Statement on Form 8-A (File No. 001-37521), filed with the SEC on July 28, 2015, including any amendment or report filed for the purpose of updating such description.
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All filings filed by
us pursuant to the Exchange Act after the date of the initial filing of this registration statement and prior to the effectiveness
of such registration statement (excluding information furnished pursuant to Items 2.02 and 7.01 of Form 8-K) shall also be deemed
to be incorporated by reference into the prospectus.
You should rely only
on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to provide you
with different information. Any statement contained in a document incorporated by reference into this prospectus will be deemed
to be modified or superseded for the purposes of this prospectus to the extent that a later statement contained in this prospectus
or in any other document incorporated by reference into this prospectus 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 not assume that the information in this prospectus is accurate as of any date other than the date of this prospectus or
the date of the documents incorporated by reference in this prospectus.
We will provide you
without charge, upon your written or oral request, a copy of any of the documents incorporated by reference in this prospectus,
other than exhibits to such documents which are not specifically incorporated by reference into such documents. Please direct your
written or telephone requests to 12 Hartom Street, Har Hotzvim, Jerusalem 9777512, Israel Attn: Chief Financial Officer, telephone
number +972 (2) 586 4657. You may also obtain information about us by visiting our website at
www.intecpharma.com
. Except
for the specific incorporated documents listed above, no information available on or through our website shall be deemed to be
incorporated in this prospectus or the registration statement of which it forms a part.
ENFORCEABILITY OF CIVIL LIABILITIES
We are incorporated
under the laws of the State of Israel. Service of process upon us and upon certain of our directors and officers and the Israeli
experts named in this prospectus, certain of whom reside outside the United States, may be difficult to obtain within the United
States. Furthermore, because substantially all of our assets and certain of our directors and officers are located outside the
United States, any judgment obtained in the United States against us or any of our directors and officers may not be collectible
within the United States.
It may be difficult
to assert U.S. securities law claims in original actions instituted in Israel. Israeli courts may refuse to hear a claim based
on a violation of U.S. securities laws reasoning that Israel is not the most appropriate forum to bring such a claim. In addition,
even if an Israeli court agrees to hear a claim, it may determine that Israeli law and not U.S. law is applicable to the claim.
If U.S. law is found to be applicable, the content of applicable U.S. law must be proved as a fact which can be a time-consuming
and costly process. Certain matters of procedure will also be governed by Israeli law.
Subject to specified
time limitations and legal procedures, Israeli courts may enforce a United States judgment in a civil matter which, subject to
certain exceptions, is non-appealable, including judgments based upon the civil liability provisions of the Securities Act and
the Exchange Act and including a monetary or compensatory judgment in a non-civil matter, provided that:
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the judgments are obtained after due process before a court of competent jurisdiction, according to the laws of the state in which the judgment is given and the rules of private international law currently prevailing in Israel;
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the prevailing law of the foreign state in which the judgments were rendered allows the enforcement of judgments of Israeli courts (however, the Israeli courts may waive this requirement following a request by the attorney general);
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adequate service of process has been effected and the defendant has had a reasonable opportunity to be heard and to present his or her evidence;
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the judgments are not contrary to public policy, and the enforcement of the civil liabilities set forth in the judgments does not impair the security or sovereignty of the State of Israel;
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the judgments were not obtained by fraud and do not conflict with any other valid judgment in the same matter between the same parties;
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an action between the same parties in the same matter is not pending in any Israeli court at the time the lawsuit is instituted in the foreign court; and
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the obligations under the judgment are enforceable according to the laws of the State of Israel and according to the law of the foreign state in which the relief was granted.
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We have irrevocably
appointed Intec Pharma, Inc., as our agent to receive service of process in any action against us in any United States federal
or state court arising out of this offering or any purchase or sale of securities in connection with this offering.
If a foreign judgment
is enforced by an Israeli court, it generally will be payable in Israeli currency, which can then be converted into non-Israeli
currency and transferred out of Israel. Under existing Israeli law, a foreign judgment payable in foreign currency may be paid
in Israeli currency at the rate of exchange in force on the date of the payment. Current Israeli exchange control regulations also
permit a judgment debtor to make payment in foreign currency. Pending collection, the amount of the judgment of an Israeli court
stated in Israeli currency ordinarily will be linked to the Israeli consumer price index plus interest at the annual statutory
rate set by Israeli regulations prevailing at the time. Judgment creditors must bear the risk of unfavorable exchange rates.
The information
in this prospectus supplement is not complete and may be changed. We may not sell any of these securities until the registration
statement filed with Securities and Exchange Commission is effective. This preliminary prospectus supplement is not an offer to
sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO
COMPLETION, DATED MARCH 1, 2019
PROSPECTUS SUPPLEMENT
(To Prospectus dated ,
2019)
Intec
Pharma Ltd.
Up to
$75,000,000
Ordinary
Shares
We have entered into
a sales agreement with Cowen and Company, LLC, or Cowen, relating to the ordinary shares offered by this prospectus supplement
and the accompanying prospectus. In accordance with the terms of the sales agreement, we may offer and sell ordinary shares having
an aggregate offering price of up to $75,000,000 from time to time through Cowen acting as our agent.
Our ordinary shares
are traded on the Nasdaq Capital Market under the symbol “NTEC.” The last reported sale price for our ordinary shares
on February 27, 2019, as quoted on the Nasdaq Capital Market, was $8.93 per ordinary share
Sales of our ordinary
shares, if any, under this prospectus supplement and the accompanying prospectus will be made in sales deemed to be an “at
the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, or the Securities
Act. Cowen is not required to sell any specific amount of securities, but will act as our sales agent using commercially reasonable
efforts consistent with its normal trading and sales practices, on mutually agreed terms between Cowen and us. There is no arrangement
for funds to be received in any escrow, trust or similar arrangement.
The compensation to
Cowen for sales of ordinary shares sold pursuant to the sales agreement will be an amount up to 3.0% of the gross proceeds of any
ordinary shares sold under the sales agreement. In connection with the sale of the ordinary shares on our behalf, Cowen will be
deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of Cowen will be deemed
to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to Cowen with respect
to certain liabilities, including liabilities under the Securities Act or the Securities Exchange Act of 1934, as amended.
We are an emerging
growth company as that term is used in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act and, as such, we have elected
to take advantage of certain reduced public company reporting requirements for this prospectus and future filings.
Investing in our
ordinary shares involves risks. See the section entitled “
Risk Factors
” beginning on page S-4 of this prospectus
supplement and in the documents we incorporate by reference into this prospectus supplement and the accompanying prospectus.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus supplement and the accompanying prospectus. Any representation to the contrary is a criminal
offense.
Cowen
The date of this prospectus is ,
2019
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS SUPPLEMENT
This
prospectus supplement and the accompanying prospectus are part of a registration statement that we filed with the Securities and
Exchange Commission, or SEC, utilizing a “shelf” registration process. This document is in two parts. The first part
is the prospectus supplement, which describes the specific terms of this offering. The second part is the accompanying prospectus,
including the documents incorporated by reference into the accompanying prospectus, which provides more general information about
securities we may offer from time to time, some of which may not apply to this offering. Generally, when we refer to this prospectus,
we are referring to both parts of this document combined. We urge you to carefully read this prospectus supplement and the prospectus,
and the documents incorporated by reference herein and therein, before buying any of the securities being offered under this prospectus
supplement. This prospectus supplement may add or update information contained in the prospectus and the documents incorporated
by reference therein. To the extent that any statement we make in this prospectus supplement is inconsistent with statements made
in the accompanying prospectus or any documents incorporated by reference therein that were filed before the date of this prospectus
supplement, the statements made in this prospectus supplement will be deemed to modify or supersede those made in the accompanying
prospectus and such documents incorporated by reference therein. If any statement in one of these documents is inconsistent with
a statement in another document having a later date – for example, a document incorporated by reference in the accompanying
prospectus – the statement in the document having the later date modifies or supersedes the earlier statement.
You
should rely only on the information contained or incorporated by reference in this prospectus supplement and the accompanying prospectus,
or contained in any free writing prospectus prepared by us or on our behalf. We have not, and Cowen has not, authorized anyone
to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely
on it. The distribution of this prospectus supplement and sale of these securities in certain jurisdictions may be restricted by
law. We are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. Persons
in possession of this prospectus supplement or the accompanying prospectus are required to inform themselves about and observe
any such restrictions. This prospectus supplement and the accompanying prospectus are not, and under no circumstances are to be
construed as, an advertisement or a public offering of securities in Israel. Any public offer or sale of securities in Israel may
be made only in accordance with the Israeli Securities Law, 5728-1968 (which requires, among other things, the filing of a prospectus
in Israel or an exemption therefrom). The information contained in this prospectus supplement, the accompanying prospectus and
the documents incorporated by reference in this prospectus supplement and the accompanying prospectus, and in any free writing
prospectus that we have authorized for use in connection with this offering, is accurate only as of the date of those respective
documents regardless of the time of delivery of this prospectus supplement or the accompanying prospectus or when any sale of our
ordinary shares occurs. Our business, financial condition, results of operations and prospects may have changed since those dates.
You should read this
prospectus supplement, the accompanying prospectus and the documents incorporated by reference in this prospectus supplement and
the accompanying prospectus, in their entirety, before making an investment decision. You should also read and consider the information
in the documents to which we have referred you in the sections of this prospectus supplement entitled “Where You Can Find
More Information” and “Incorporation of Certain Documents by Reference.”
This prospectus supplement
and the accompanying prospectus contain summaries of certain provisions contained in some of the documents described herein, but
reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the
actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated herein
by reference as exhibits to the registration statement, and you may obtain copies of those documents as described below under the
section entitled “Where You Can Find More Information.”
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 herein 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.
This prospectus supplement
incorporates by reference market data and certain industry data and forecasts that were obtained from market research databases,
consultant surveys commissioned by us, publicly available information, reports of governmental agencies and industry publications
and surveys. Industry surveys, publications, consultant surveys commissioned by us and forecasts generally state that the information
contained therein has been obtained from sources believed to be reliable. We have relied on certain data from third-party sources,
including internal surveys, industry forecasts and market research, which we believe to be reliable based on our management’s
knowledge of the industry. Statements as to our market position are based on the most currently available data. While we are not
aware of any misstatements regarding the industry data presented in this annual report, our estimates involve risks and uncertainties
and are subject to change based on various factors, including those discussed under the headings “Risk Factors” in
this prospectus, and under similar headings in the other documents that are incorporated herein by reference.
Certain figures included
in this prospectus supplement have been subject to rounding adjustments. Accordingly, figures shown as totals in certain tables
may not be an arithmetic aggregation of the figures that precede them.
When used herein, unless the context
requires otherwise, references to the “Company, “we,” “our,” and “us” refer to Intec
Pharma Ltd., an Israeli company and its U.S. subsidiary Intec Pharma Inc., unless the context otherwise requires.
PROSPECTUS SUPPLEMENT SUMMARY
This summary highlights
certain information about us, this offering and selected information contained elsewhere in or incorporated by reference into this
prospectus. This summary is not complete and does not contain all of the information that you should consider before deciding whether
to invest in our ordinary shares. For a more complete understanding of our company and this offering, we encourage you to read
and consider carefully the more detailed information in this prospectus, including the information incorporated by reference in
this prospectus, and the information included in any free writing prospectus that we have authorized for use in connection with
this offering, including the information under the heading “Risk Factors” in this prospectus on page S-4.
Our Company
We are a clinical stage
biopharmaceutical company focused on developing drugs based on our proprietary Accordion Pill platform technology, which we refer
to as the Accordion Pill. Our Accordion Pill is an oral drug delivery system that is designed to improve the efficacy and safety
of existing drugs and drugs in development by utilizing an efficient gastric retention and specific release mechanism. Our product
pipeline currently includes several product candidates in various clinical trial stages. Our leading product candidate, Accordion
Pill Carbidopa/Levodopa, or AP-CD/LD, is being developed for the indication of treatment of Parkinson’s disease symptoms
in advanced Parkinson’s disease patients. We have successfully completed a Phase II clinical trial for AP-CD/LD for the treatment
of Parkinson’s disease symptoms in advanced Parkinson’s disease patients and have agreed with the U.S. Food and Drug
Administration, or FDA, on the remaining clinical development program for AP-CD/LD for the treatment of Parkinson’s disease
symptoms in advanced Parkinson’s disease patients, including the main principles of the single required pivotal Phase III
clinical trial in advanced Parkinson’s disease patients.
We are currently conducting
a pivotal Phase III clinical for AP-CD/LD for the treatment of advanced Parkinson’s disease known as the ACCORDANCE study.
In April 2016, we enrolled the first patient in the ACCORDANCE study and in October 2018, we completed enrollment. We currently
expect to release top-line results in mid-2019. In our correspondence with the FDA, the FDA previously agreed that an acceptable
regulatory pathway for AP-CD/LD would be to submit a new drug application, or NDA, pursuant to Section 505(b)(2) of the Federal
Food, Drug, and Cosmetic Act, which is a streamlined approval pathway that may accelerate the time to commercialize and decrease
the costs of FDA approval for AP–CD/LD, as compared to those typically associated with a new chemical entity.
In February 2019, we
announced that AP-CD/LD met the primary endpoint in a pharmacokinetic, or PK, study comparing the AP-CD/LD 50/500mg dosed three
times daily, the most common dose used in our on-going ACCORDANCE study, to 1.5 tablets of CD/LD immediate release (Sinemet™)
25/100 dosed five times per day in Parkinson's disease patients.
We have invested in
the commercial scale manufacture of AP-CD/LD, for which we are in partnership with LTS. In December 2018, the large commercial
scale production line was delivered to LTS in Andernach, Germany. We are in the process of installing and connecting all the ancillary
equipment and expect to begin the validation, bioequivalency and stability studies needed for approval of our commercial production
processes in the coming months. After preliminary discussions with the FDA in anticipation of filing for marketing approval of
AP-CD/LD, we remain confident we are on track to submit an NDA for approval of AP-CD/LD in mid- to late-2020, assuming positive
topline data in the Accordance Study in mid-2019.
In addition, we have
initiated a clinical development program for our Accordion Pill platform with the two primary cannabinoids contained in cannabis
sativa, which we refer to as AP-Cannabinoids. We are formulating and testing cannabidiol, or CBD, and 9-tetrahydrocannabinol, or
THC, for the treatment of various pain indications. AP-Cannabinoids are designed to extend the absorption phase of CBD and THC,
with the goal of more consistent levels for an improved therapeutic effect which may address several major drawbacks of current
methods of treatment, such as short duration of effect, delayed onset, variability of exposure, variability of the administered
dose and adverse events that correlate with peak levels. In March 2017, we initiated a Phase I single-center, single-dose, randomized,
three-way crossover clinical trial in Israel to compare the safety, tolerability and PK of AP-THC/CBD, with Sativex
®
,
an oral buccal spray containing CBD and THC that is commercially available outside of the United States. Initial results demonstrate
that the Accordion Pill platform is well-suited to safely deliver CBD and THC with significant improvements in exposure compared
with Sativex. In December 2018, we initiated a PK study of AP-THC. We have completed the dosing of the AP-THC PK study and the
data is in the process of being analyzed by a third party contract research organization per protocol. However, upon raw data review,
the delivery of THC does not appear to meet our full program expectations. We await the full dataset and the statistical analysis
to determine our next steps.
In December 2018, we
reported that we successfully developed an Accordion Pill for a Novartis proprietary compound that met the required
in vitro
specifications set forth in a feasibility agreement with Novartis. We have mutually agreed to proceed with the program
and plan to enter the clinic with a first-in-human PK study in the first half of 2019. We believe continued success with this program
further validates the platform, confirms our technical abilities to build custom APs and paves the way for additional collaborative
agreements.
Corporate Information
Our registered office
and principal place of business is located at 12 Hartom Street, Har Hotzvim, Jerusalem 9777512, Israel and our telephone number
in Israel is +972 (2) 586 4657. Our website address is http://www.intecpharma.com. The information contained on our website
or available through our website does not constitute part of this prospectus. Our registered agent in the United States is Intec
Pharma, Inc., whose address is 3 Columbus Circle – 15
th
Floor, New York, NY 10019 USA.
THE OFFERING
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Ordinary shares offered by us
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Our ordinary shares having an aggregate offering price of up to $75 million.
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Ordinary shares to be outstanding after this offering
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Up to 41,631,644 ordinary shares (as
more fully described in the notes following this table), assuming sales of 8,398,656 ordinary shares in this
offering at an offering price of $8.93 per share, which was the last reported sale price of our ordinary
shares on the Nasdaq Capital Market on February 27, 2019. The actual number of ordinary shares issued will
vary depending on the sales price under this offering.
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Plan of Distribution
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“At the market offering” that
may be made from time to time through our sales agent, Cowen. See “Plan of Distribution” on page S-21.
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Use of Proceeds
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We currently intend to use the net proceeds
from this offering to fund our clinical trials, to advance our pre-commercial activities, for working capital and for general corporate
purposes. Pending these uses, we may invest the net proceeds from the sale of securities in accordance with our investment policy,
as may be amended from time to time, which currently includes bank deposits carrying interest, corporate debt obligations
with a minimum of an A rating by global rating agencies and investments in United States Government Securities and Israeli Government
Securities. See “Use of Proceeds” on page S-7.
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Risk Factors
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Investing in our ordinary shares involves
significant risks. See “Risk Factors” on page S-4, and under similar headings in other documents incorporated by
reference into this prospectus.
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Nasdaq Capital Market symbol
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“NTEC”
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Unless
otherwise indicated, the number of ordinary shares to be outstanding after this offering is based on 33,232,988 ordinary
shares outstanding as of February 27, 2019 and excludes (i) 4,063,183 ordinary shares that we have reserved for issuance upon
the exercise of outstanding options under our 2015 incentive plan, as of February 27, 2019, at a weighted average exercise
price of $6.26 per ordinary share and that expire between 2024 and 2027, (ii) 295,452 ordinary shares that we have reserved
for issuance upon the exercise of outstanding options under our 2005 incentive plan, as of February 27, 2019, at a
weighted average exercise price of NIS 27.52 per ordinary share and that expire between 2019 and 2020, and (iii) 8,035
options issued outside of such plans, as of February 27, 2019, with an exercise price of NIS 0.50 per ordinary share and
that expire in 2019.
RISK FACTORS
Investing in our
ordinary shares involves a high degree of risk. Before making an investment decision, you should carefully consider the risks described
below and in our Annual Report on Form 10-K for the year ended December 31, 2018, Quarterly Reports on Form 10-Q and Current Reports
on Form 8-K incorporated by reference in this prospectus supplement and the accompanying prospectus, any amendment or update thereto
reflected in our subsequent filings with the SEC, and all of the other information in this prospectus supplement and the accompanying
prospectus, including our financial statements and related notes incorporated by reference in this prospectus supplement and the
accompanying prospectus. If any of these risks is realized, our business, financial condition, results of operations and prospects
could be materially and adversely affected. In that event, the trading price of our ordinary shares could decline and you could
lose part or all of your investment. Additional risks and uncertainties that are not yet identified or that we think are immaterial
may also materially harm our business, operating results and financial condition and could result in a complete loss of your investment.
Risks Related to this Offering
Purchasers in this offering will
experience immediate and substantial dilution in the book value of their investment.
The ordinary
shares sold in this offering from time to time will be sold at various prices; however, we expect the price per ordinary
share will be substantially higher than the net tangible book value of our ordinary shares. Therefore, purchasers of our
ordinary shares in this offering will experience immediate dilution in the net tangible book value of the ordinary shares
purchased in this offering. Assuming that an aggregate of 8,398,656 ordinary shares are sold at a public offering price of $8.93 per share, the last reported sale price of our ordinary shares on the Nasdaq Capital Market on February 27, 2019, for
aggregate gross proceeds of $75,000,000 and after deducting estimated commissions and estimated offering expenses payable by
us, our adjusted net tangible book value as of December 31, 2018, would have been approximately $125.9 million, or
approximately $3.02 per ordinary. As a result, if you purchase ordinary shares in this offering at that assumed public
offering price, you would suffer immediate and substantial dilution of $5.91 per share with respect to the net tangible book
value of the ordinary shares. See “Dilution” in this prospectus supplement for a detailed illustration of the
dilution you will incur if you purchase shares in this offering.
We will have broad discretion in how we use the net proceeds
of this offering. We may not use these proceeds effectively, which could affect our results of operations and cause our stock price
to decline.
We intend to use the
net proceeds from this offering to fund our clinical trials, to advance our pre-commercial activities, for working capital and
for general corporate purposes. Our management will have broad discretion over the use of proceeds from this offering, and we could
spend the proceeds from this offering in ways with which you may not agree or that do not yield a favorable return. Accordingly,
you will be relying on the judgment of our management with regard to the use of these net proceeds, and you will not have the opportunity
as part of your investment decision to assess whether the proceeds are being used appropriately. Our needs may change as the business
and the industry that we address evolves. It is possible that the proceeds will be invested in a way that does not yield a favorable,
or any, return. The failure of our management to use such funds effectively could have a material adverse effect on our business,
financial condition, operating results and cash flow.
If we raise additional capital in the future, your ownership
in us could be diluted.
In order to raise additional
capital, we may at any time, including during this offering, offer additional ordinary shares or other securities convertible into
or exchangeable for our ordinary shares at prices that may not be the same as the price per share in this offering. We may sell
shares or other securities in any other offering at a price per share that is less than the price per share paid by investors in
this offering, and investors purchasing shares or other securities in the future could have rights superior to existing shareholders,
including investors who purchase ordinary shares in this offering. The price per share at which we sell additional ordinary shares
or securities convertible into ordinary shares in future transactions may be higher or lower than the price per share in this offering.
Until such time, if
ever, as we can generate substantial revenue from the sale of our products, we may finance our cash needs through a combination
of equity offerings, debt financings and license and development agreements. To the extent that we raise additional capital through
the further sale of equity securities or convertible debt securities, your ownership interest will be diluted, and the terms of
these securities may include liquidation or other preferences that adversely affect your rights as a shareholder.
Sales of a substantial number of our ordinary shares in
the public market could cause our stock price to fall.
We may issue and sell
additional ordinary shares in the public markets, including during this offering. As a result, a substantial number of our ordinary
shares may be sold in the public market. Sales of a substantial number of our ordinary shares in the public markets, including
during this offering, or the perception that such sales could occur, could depress the market price of our ordinary shares and
impair our ability to raise capital through the sale of additional equity securities.
Our shareholders may be diluted by
the exercise of outstanding options to purchase ordinary shares
As of February 27,
2019, we have (i) 4,063,183 that we have reserved for issuance upon the exercise of outstanding options under our 2015 incentive
plan, (ii) 295,452 ordinary shares that we have reserved for issuance upon the exercise of outstanding options under our 2005 incentive
plan, and (iii) 8,035 options issued outside of such plans. We expect to issue additional equity awards to compensate employees,
and may issue additional shares to raise capital, to pay for services, or for other corporate purposes. Any such issuances will
have the effect of diluting the interests of current shareholders. The future issuance of any such additional ordinary shares may
create downward pressure on the trading price of our ordinary shares.
The actual number of shares we will
issue under the Sales Agreement, at any one time or in total, is uncertain.
Subject to certain
limitations in the Sales Agreement and compliance with applicable law, we have the discretion to deliver a placement notice to
Cowen at any time throughout the term of the Sales Agreement. The number of shares that are sold by Cowen after delivering a placement
notice will fluctuate based on the market price of the ordinary shares during the sales period and limits we set with Cowen. Because
the price per share of each share sold will fluctuate based on the market price of our ordinary shares during the sales period,
it is not possible at this stage to predict the number of shares that will ultimately be issued.
FORWARD-LOOKING STATEMENTS
This prospectus supplement,
including the information incorporated by reference into this prospectus, contains, and any prospectus supplement may contain statements
that are forward-looking statements about our expectations, beliefs or intentions regarding, among other things, our product development
efforts, business, financial condition, results of operations, strategies, plans and prospects. In addition, from time to time,
we or our representatives have made or may make forward-looking statements, orally or in writing. Forward-looking statements can
be identified by the use of forward-looking words such as “believe,” “expect,” “intend,” “plan,”
“may,” “should,” “anticipate,” “could,” “might,” “seek,”
“target,” “will,” “project,” “forecast,” “continue” or their negatives
or variations of these words or other comparable words or by the fact that these statements do not relate strictly to historical
matters. These forward-looking statements may be included in, among other things, various filings made by us with the SEC, press
releases or oral statements made by or with the approval of one of our authorized executive officers. Forward-looking statements
relate to anticipated or expected events, activities, trends or results as of the date they are made. Because forward-looking statements
relate to matters that have not yet occurred, these statements are inherently subject to risks and uncertainties that could cause
our actual results to differ materially from any future results expressed or implied by the forward-looking statements. Many factors
could cause our actual activities or results to differ materially from the activities and results anticipated in forward-looking
statements, including, but not limited to:
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we are a clinical stage biopharmaceutical company with a history of operating losses, are not currently
profitable, do not expect to become profitable in the near future and may never become profitable;
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our independent registered public accounting firm has expressed substantial doubt regarding our
ability to continue as a going concern;
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because of our limited operating history, we may not be able to successfully operate our business
or execute our business plan;
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we face continuous technological change, and developments by competitors may render our products
or technologies obsolete or non-competitive. If our new or existing product candidates are rendered obsolete or non-competitive,
our marketing and sales will suffer and we may never be profitable;
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we license our core technology on an exclusive basis from Yissum (Hebrew University), and we could
lose our rights to this license if a dispute with Yissum arises or if we fail to comply with the financial and other terms of the
license;
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if we fail to adequately protect, enforce or secure rights to the patents which were licensed to
us or any patents we may own in the future, the value of our intellectual property rights would diminish and our business and competitive
position would suffer;
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our product candidates are at various stages of preclinical and clinical development and may never
be commercialized;
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we cannot be certain that the results of our ACCORDANCE study or any future Phase III clinical
trial, even if all endpoints are met, will support regulatory approval of any of our product candidates for any indication;
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our product candidates are subject to extensive regulation and are at various stages of regulatory
development and may never obtain regulatory approval;
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we are subject to anti-kickback laws and regulations. Our failure to comply with these laws and
regulations could have adverse consequences to us; and
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potential political, economic and military instability in the State of Israel, where some of our
senior management, our head executive office, research and development, and manufacturing facilities are located, may adversely
affect our results of operations.
|
We believe these forward-looking
statements are reasonable; however, these statements are only current predictions and are subject to known and unknown risks, uncertainties
and other factors that may cause our or our industry’s actual results, levels of activity, performance or achievements to
be materially different from those anticipated by the forward-looking statements. We discuss many of these risks in this prospectus
in greater detail under the heading “Risk Factors” and elsewhere in this prospectus. Given these uncertainties, you
should not rely upon forward-looking statements as predictions of future events.
All forward-looking
statements attributable to us or persons acting on our behalf speak only as of the date hereof and are expressly qualified in their
entirety by the cautionary statements included in this prospectus. We undertake no obligations to update or revise forward-looking
statements to reflect events or circumstances that arise after the date made or to reflect the occurrence of unanticipated events,
except as required by law. In evaluating forward-looking statements, you should consider these risks and uncertainties and not
place undue reliance on our forward-looking statements.
USE OF PROCEEDS
The amount of proceeds
from this offering will depend upon the number of ordinary shares 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 Sales Agreement with Cowen.
We intend to use the
net proceeds from the sale of the securities offered under this prospectus to fund our clinical trials, to advance our pre-commercial
activities, for working capital and for general corporate purposes.
Although we have identified
some potential uses of the net proceeds to be received upon completion of this offering, we cannot specify these uses with certainty.
Our management will have broad discretion in the application of the net proceeds from this offering and could use them for purposes
other than those contemplated at the time of this offering. Our shareholders may not agree with the manner in which our management
chooses to allocate and spend the net proceeds. Moreover, our management may use the net proceeds for corporate purposes that may
not result in our being profitable or increase our market value.
Pending these uses,
we may invest the net proceeds from the sale of securities in accordance with our investment policy, as may be amended from time
to time, which currently includes bank deposits carrying interest, corporate debt obligations with a minimum of
an A rating by global rating agencies and investments in United States Government Securities and Israeli Government Securities.
DILUTION
If you purchase our
ordinary shares, your interest will be diluted immediately to the extent of the difference between the public offering price per
share of our ordinary shares and the as adjusted net tangible book value per share of our ordinary shares after this offering.
The net tangible book
value of our ordinary shares as of December 31, 2018 was approximately $53.6 million, or approximately $1.61 per share. Net tangible
book value per share represents the amount of our total tangible assets less total liabilities divided by the total number of our
ordinary shares outstanding.
After giving
effect to the sale of $75 million of ordinary shares in this offering at an assumed public offering price of $8.93 per share
(the last reported sale price of our ordinary shares on the Nasdaq Capital Market on February 27, 2019), and after deducting
commissions and estimated aggregate offering expenses payable by us, our as adjusted net tangible book value as of December
31, 2018 would have been approximately $125.9 million, or approximately $3.02 per share. This represents an immediate
increase in net tangible book value of approximately $1.41 per share to our existing shareholders and an immediate dilution
in as adjusted net tangible book value of approximately $5.91 per share to investors participating in this offering, as
illustrated by the following table:
|
Assumed offering price per share of ordinary shares
|
|
|
|
|
|
$
|
8.93
|
|
|
|
|
|
|
|
|
|
|
|
|
Net tangible book value per share as of December 31, 2018
|
|
$
|
1.61
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase in net tangible book value per share after this offering
|
|
$
|
1.41
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As adjusted net tangible book value per share as of December 31, 2018, after giving effect to this offering
|
|
|
|
|
|
$
|
3.02
|
|
|
|
|
|
|
|
|
|
|
|
|
Dilution per share to investors participating in this offering
|
|
|
|
|
|
$
|
5.91
|
|
The table above
assumes for illustrative purposes that an aggregate of 8,398,656 ordinary shares are sold at a price of $8.93 per share, the
last reported sales price of our ordinary shares on the Nasdaq Capital Market on February 27, 2019, for aggregate proceeds of
approximately $75 million. The shares sold in this offering, if any, will be sold from time to time at various prices.
The above discussion
and table are based on 33,232,988 shares outstanding as of December 31, 2018, and excludes as of such date (i) 3,138,183 ordinary
shares that we have reserved for issuance upon the exercise of outstanding options under our 2015 incentive plan, as of December
31, 2018, at a weighted average exercise price of $5.85 per share and that expire between 2024 and 2027, (ii) 295,452 ordinary
shares that we have reserved for issuance upon the exercise of outstanding options under our 2005 incentive plan, as of December
31, 2018, at a weighted average exercise price of NIS 27.52 per ordinary share and that expire between 2019 and 2020, and (iii)
8,035 options issued outside of such plans, as of December 31, 2018, with an exercise price of NIS 0.5 per ordinary share and that
expire in 2019.
To the extent that
any of these outstanding options are exercised or we issue additional shares under our equity incentive plans, there will be further
dilution to new investors. In addition, we may choose to raise additional capital at any time, including during this offering,
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 shareholders.
MATERIAL TAX CONSIDERATIONS
The following description
is not intended to constitute a complete analysis of all tax consequences relating to the ownership or disposition of our ordinary
shares. You should consult your own tax advisor concerning the tax consequences of your particular situation, as well as any tax
consequences that may arise under the laws of any state, local, foreign, including Israel, or other taxing jurisdiction
.
Certain Israeli Tax Considerations
The following is a
brief summary of the material Israeli income tax laws applicable to us. This section also contains a discussion of material Israeli
tax consequences concerning the ownership and disposition of our ordinary shares. This summary does not discuss all the aspects
of Israeli tax law that may be relevant to a particular investor in light of his or her personal investment circumstances or to
some types of investors subject to special treatment under Israeli law. Examples of this kind of investor include residents of
Israel or investors in securities who are subject to special tax regimes not covered in this discussion. To the extent that the
discussion is based on tax legislation that has not yet been subject to judicial or administrative interpretation, we cannot assure
you that the appropriate tax authorities or the courts will accept the views expressed in this discussion. This summary is based
on laws and regulations in effect as of the date hereof and does not take into account possible future amendments which may be
under consideration.
General Corporate Tax Structure in
Israel
Israeli companies
are generally subject to corporate tax on their taxable income at the rate of 23% for the 2018 tax year and thereafter. However,
the effective tax rate payable by a company that derives income from an Approved Enterprise, a Benefited Enterprise, a Preferred
Enterprise, Technology Enterprise or a Special Preferred Technology Enterprise (as discussed below) may be considerably less. Capital
gains derived by an Israeli resident company are subject to tax at the prevailing corporate tax rate.
Law for the Encouragement of Industry (Taxes), 5729-1969
The Law for the Encouragement
of Industry (Taxes), 5729-1969, or the Industry Encouragement Law, defines an “Industrial Company” as an Israeli resident
company incorporated in Israel, of which 90% or more of its income in any tax year, other than income from certain government loans,
is derived from an “Industrial Enterprise” owned by it and located in Israel or in the “Area”, in accordance
with the definition in section 3a of the Israeli Income Tax Ordinance (New Version) 1961, or the Ordinance. An “Industrial
Enterprise” is defined as an enterprise which is held by an Industrial Company whose principal activity in any given tax
year is industrial production.
The following tax benefits,
among others, are available to Industrial Companies:
|
|
●
|
amortization over an eight-year
period of the cost of patents and rights to use a patent and know-how that were purchased in good faith and are used for the development
or advancement of the Industrial Enterprise, commencing from the tax year where the Industrial Enterprise began to use them;
|
|
|
●
|
under certain conditions, the right to elect to file consolidated tax returns with Israeli Industrial Companies controlled by it; and
|
|
|
●
|
expenses related to a public offering are deductible in equal amounts over three years commencing on the year of the offering.
|
We believe that we
qualify as an “Industrial Company” within the meaning of the Industry Encouragement Law. There can be no assurance
that we will continue to qualify as an Industrial Company or that the benefits described above will be available to us in the future.
Tax Benefits under the Law for the
Encouragement of Capital Investments, 5719-1959
Tax benefits prior to the 2005 Amendment
The Law for the Encouragement
of Capital Investments, 5719-1959, or the Investment Law, provides that a capital investment in eligible facilities may, upon application
to the Israeli Authority for Investments and Development of the Ministry of Economy and Industry of the State of Israel, or the
Investment Center, be granted the status of an Approved Enterprise. Each certificate of approval for an Approved Enterprise relates
to a specific investment program delineated both by its financial scope, including sources of funds, and by its physical characteristics
of the facility or other assets, e.g., the equipment to be purchased and utilized pursuant to the program.
The tax benefits under
the Investment Law also apply to income generated by a company from the grant of a usage right with respect to know-how developed
pursuant to the Approved Enterprise, income generated from royalties, and income derived from a service which is auxiliary to such
usage right or royalties, provided that such income is generated within the ordinary course of business of the company investing
in the Approved Enterprise.
If a company has more
than one approval or only a portion of its capital investments is approved, its effective tax rate is the result of a weighted
average of the applicable rates. The tax benefits under the Investment Law are not, generally, available with respect to income
derived from products manufactured outside of Israel. In addition, the tax benefits available to a company investing in an Approved
Enterprise are contingent upon the fulfillment of conditions stipulated in the Investment Law and related regulations and the criteria
set forth in the specific certificate of approval, as described above. In the event that a company does not meet these conditions,
it would be required to refund the amount of tax benefits, plus a consumer price index linked adjustment and interest, or other
monetary penalty.
A company that has
an Approved Enterprise program and which qualifies as a foreign investment company, or a FIC, will be eligible for a three-year
extension of tax benefits following the expiration of the seven-year period referenced above. In addition, in the event that the
level of foreign ownership in an Approved Enterprise reaches 49% or higher, the corporate tax rate applicable to income earned
from the Approved Enterprise is reduced as follows:
|
% of Foreign Ownership
|
|
Tax Rate
|
|
|
49% or more but less than 74%
|
|
|
20
|
%
|
|
74% or more but less than 90%
|
|
|
15
|
%
|
|
90% or more
|
|
|
10
|
%
|
Additionally, a company
may elect to forgo its entitlements to grants and tax benefits under the grant track and apply for alternative package of tax benefits,
or the Alternative Track, for a benefit period of between seven and ten years . Under the Alternative Track, a company’s
undistributed income derived from the Approved Enterprise will be exempt from corporate tax for a period of between two and ten
years, starting from the first year the company derives taxable income under the Approved Enterprise program. The length of time
of this exemption will depend on the geographic location of the Approved Enterprise within Israel. After the exemption period lapses,
the company is subject to tax at a corporate tax rate of between 10% to 23% depending on the level of foreign investment in the
company in each year, as detailed above, for the remainder of the benefit period.
A company that has
elected the Alternative Track and subsequently pays a dividend out of income derived from the Approved Enterprise during the tax
exemption period will be subject to corporate tax on the amount which is determined by the distributed amount (grossed up to reflect
such pre-tax income that it would have had to earn in order to distribute the dividend) with the effective corporate tax rate which
would have been applied had the company not elected the Alternative Track, which is between 10%-23%, depending on the level of
foreign investment in the company in each year as explained above. Dividends paid out of any income derived from an Approved Enterprise
are generally subject to withholding tax at source at the reduced rate of 15% or at a lower rate provided under an applicable tax
treaty (subject to the receipt in advance of a valid certificate from the Israel Tax Authority allowing for a reduced tax rate),
if the dividend is distributed during the tax exemption period or within 12 years thereafter. In the event, however, where the
company qualifies as a FIC, there is no such time limitation.
Under the Investment
Law, a company that has elected the Alternative Track is not obliged to distribute retained profits, and may generally decide from
which year’s profits to declare dividends.
The Company is not
entitled to an Approved Enterprise status.
Tax benefits under the
2005 Amendment
An amendment to the
Investment Law, which became effective as of April 1, 2005, or the 2005 Amendment, changed certain provisions of the Investment
Law. An eligible investment program under the 2005 Amendment qualifies for benefits as a “Benefited Enterprise” (rather
than as an Approved Enterprise which status is still applicable for investment programs approved prior to December 31, 2004 and/or
investment programs under the grant track). According to the 2005 Amendment, to qualify a Benefited Enterprise, only companies
with Approved Enterprises receiving cash grants require the prior approval of the Investment Center. Further, a company may claim
the tax benefits offered by the Investment Law directly in its tax returns, provided that its facilities meet the criteria for
tax benefits set forth in the 2005 Amendment. A company that has a Benefited Enterprise may, at its discretion, approach the Israel
Tax Authority for a pre-ruling confirming that it meets the criteria with the provisions of the Investment Law.
The duration of the
tax benefits under the 2005 Amendment is limited to the earlier of seven or ten years (depending on the geographic location of
the Benefited Enterprise within Israel) from the Commencement Year (as described below) or 12 years from the first day of the year
of election. Commencement Year is defined as the later of the first tax year in which a company had derived liable income for tax
purposes from the Benefited Enterprise, or the year of election which is the year in which a company requested to have the tax
benefits apply to the Benefited Enterprise. The tax benefits granted to a Benefited Enterprise are determined, depending on the
geographic location of the Benefited Enterprise within Israel, according to one of the following, which may be applicable to us:
(i) Similar to the
Alternative Track, exemption from corporate tax may be available on undistributed income for a period of two to ten years, depending
on the geographic location of the Benefited Enterprise within Israel, and a corporate tax rate of 10% to 23% for the remainder
of the benefit period, depending on the level of foreign investment in each year. Benefits may be granted for a term of seven to
ten years, depending on the level of foreign investment in the company. If the company pays a dividend out of income derived from
the Benefited Enterprise during the tax exemption period, such income will be subject to deferred corporate tax with respect to
the amount distributed (grossed up to reflect such pre-tax income that it would have had to earn in order to distribute the dividend)
at the corporate tax rate which would have otherwise been applied. The company is required to withhold tax on such distribution
at a rate of 15%, or such lower rate may be provided in an applicable tax treaty (subject to the receipt in advance of a valid
certificate from the Israel Tax Authority allowing for a reduced tax rate); or
(ii) A special track,
or the Ireland Track, which enables companies owning facilities in certain geographical locations in Israel to pay corporate tax
at a flat rate of 11.5% on income derived from the Benefited Enterprise. The benefit period is for ten years. Upon payment of dividends,
the company is required to withhold tax on such dividend at a rate of 15% for Israeli residents and at a rate of 4% for foreign
residents.
Under the Investment
Law, we may be entitled to tax benefits, by virtue of our status as a “Benefited Enterprise,” which was awarded to
us in October 2007. As of December 31, 2018, we had not yet generated operating income that will allow us to benefit from the tax
benefits under the Investment Law. The tax benefits under the Investment Law may apply for a period of up to ten years from the
first year in which taxable income will be generated. Our tax benefits period is scheduled to expire at the end of 2023.
In order to remain
eligible for the tax benefits of a Benefited Enterprise, we must continue to meet certain conditions stipulated in the Investment
Law and its regulations, as amended. In addition, in order to remain eligible for the tax benefits available to the Benefited Enterprise,
we must also comply with the conditions set forth in a tax ruling we received from the Israeli Tax Authority. These conditions
include, among other things, that the production, directly or through subcontractors, of all our products should be performed within
certain regions of Israel. If we do not meet these requirements, the tax benefits would be reduced or canceled.
Tax benefits under the
2011 Amendment
On December 29, 2010,
the Israeli Parliament approved the 2011 Amendment to the Investment Law, or the 2011 Amendment. The 2011 Amendment significantly
revised the tax incentive regime in Israel and commenced on January 1, 2011.
The 2011 Amendment
introduced a new status of “Preferred Enterprise”, replacing the existing status of “Benefited Enterprise”
and introduced new benefits for income generated by a “Preferred Company” through its Preferred Enterprise. A Preferred
Company is an Industrial Company meeting certain conditions (including a minimum threshold of 25% export). However, under the 2011
Amendment, the requirement for a minimum investment in productive assets in order to be eligible for the benefits granted under
the Investment Law as with respect to “Benefited Enterprise” was cancelled.
A Preferred Company
is entitled to a reduced flat tax rate with respect to the income attributed to the Preferred Enterprise at the following rates:
|
Tax Year
|
|
Development Region “A”
|
|
|
Other Areas within Israel
|
|
|
2011-2012
|
|
|
10
|
%
|
|
|
15
|
%
|
|
2013
|
|
|
7
|
%
|
|
|
12.5
|
%
|
|
2014-2016
|
|
|
9
|
%
|
|
|
16
|
%
|
|
2017 onwards
|
|
|
7.5
|
%
|
|
|
16
|
%
|
The classification
of income generated from the provision of usage rights in know-how or software that were developed in the Preferred Enterprise,
as well as royalty income received with respect to such usage, as Preferred Enterprise income is subject to the issuance of a pre-ruling
from the Israeli Tax Authority stipulating that such income is associated with the productive activity of the Preferred Enterprise
in Israel.
In addition, the 2011
Amendment introduced a new status of “Special Preferred Company,” which is an Industrial Company meeting, in addition
to the conditions prescribed for a “Preferred Company,” certain additional conditions (including that the annual Preferred
Enterprise income is at least NIS 1.5 billion in 2016, and NIS 1 billion in 2017 and thereafter). The tax rate applicable for a
period of ten years to income generated by such an enterprise will be reduced to 5%, if located in Development Region “A”,
or to 8%, if located in other area within the State of Israel. As of January 1, 2017, the definition for ‘Special Preferred
Enterprise’ includes less stringent conditions.
Dividends distributed
from income which is attributed to a “Preferred Enterprise” or a “Special Preferred Enterprise” will be
subject to withholding tax at source at the following rates: (i) Israeli resident corporations – 0%, (although, if such dividends
are subsequently distributed to individuals or a non-Israeli company, withholding tax at a rate of 20% or such lower rate as may
be provided in an applicable tax treaty will apply (subject to the receipt in advance of a valid certificate from the Israel Tax
Authority allowing for a reduced tax rate)) (ii) Israeli resident individuals – 20%, and (iii) non-Israeli residents - 20%,
subject to a reduced tax rate under the provisions of an applicable tax treaty (subject to the receipt in advance of a valid certificate
from the Israel Tax Authority allowing for a reduced tax rate). In 2017-2019, dividends paid out of preferred income attributed
to a “Special Preferred Enterprise”, directly to a foreign parent company, are subject to withholding tax at source
at the rate of 5% (temporary provisions).
The 2011 Amendment
also revised the grant track to apply only to the approved programs located in Development Region “A” and provides
not only cash grants (as prior to the 2011 Amendment) but also the granting of loans. In addition, a company owning a Preferred
Enterprise under the grant track may be entitled also to the tax benefits which are prescribed for a Preferred Enterprise.
The provisions of the
2011 Amendment do not apply to existing “Benefited Enterprises” or “Approved Enterprises,” which will continue
to be entitled to the tax benefits under the Investment Law, as in effect prior to the 2011 Amendment, unless the company owning
such enterprises had made an election to apply the provisions of the 2011 Amendment (such election cannot be later rescinded),
which is to be filed with the Israeli Tax Authority, not later than the date prescribed for the filing of the company’s annual
tax return for the respective year.
We have examined the
possible effect, if any, of the provisions of the 2011 Amendment on our consolidated financial statements and have decided, at
this time, not to apply for the new benefits under the 2011 Amendment.
Tax benefits under the
2017 Amendment
The 2017 Amendment
to the Investment Law, or the 2017 Amendment, was enacted as part of the Economic Efficiency Law that was published on December
29, 2016, and is effective as of January 1, 2017. The 2017 Amendment provides new tax benefits for two types of “Technology
Enterprises,” as described below, and is in addition to the other existing tax benefit programs under the Investment Law.
The 2017 Amendment
provides that a technology company satisfying certain conditions may qualify as a “Preferred Technology Enterprise”
and thereby enjoy a reduced corporate tax rate of 12% on income that qualifies as “Preferred Technology Income,” as
defined in the Investment Law. The tax rate is further reduced to 7.5% for a Preferred Technology Enterprise located in Development
Region “A.” In addition, a Preferred Technology Company will enjoy a reduced corporate tax rate of 12% on capital gain
derived from the sale of certain “Benefitted Intangible Assets” (as defined in the Investment Law) to a related foreign
company if the Benefitted Intangible Assets were acquired from a foreign company on or after January 1, 2017 for at least NIS 200
million, and the sale receives prior approval from the IIA.
The 2017 Amendment
further provides that a technology company satisfying certain conditions may qualify as a “Special Preferred Technology Enterprise”
and thereby enjoy a reduced corporate tax rate of 6% on “Preferred Technology Income” regardless of the company’s
geographic location within Israel. In addition, a Special Preferred Technology Enterprise will enjoy a reduced corporate tax rate
of 6% on capital gain derived from the sale of certain “Benefitted Intangible Assets” to a related foreign company
if the Benefitted Intangible Assets were either developed by an Israeli company or acquired from a foreign company on or after
January 1, 2017, and the sale received prior approval from the IIA. A Special Preferred Technology Enterprise that acquires Benefitted
Intangible Assets from a foreign company for more than NIS 500 million will be eligible for these benefits for at least ten years,
subject to certain approvals as specified in the Investment Law.
Dividends distributed
by a Preferred Technology Enterprise or a Special Preferred Technology Enterprise, paid out of Preferred Technology Income, are
generally subject to withholding tax at source at the rate of 20% or such lower rate as may be provided in an applicable tax treaty
(subject to the receipt in advance of a valid certificate from the Israel Tax Authority allowing for a reduced tax rate). However,
if such dividends are paid to an Israeli company, no tax is required to be withheld. If such dividends are distributed to a foreign
company and other conditions are met, the withholding tax rate will be 4% (or a lower rate under a tax treaty, if applicable, subject
to the receipt in advance of a valid certificate from the Israel Tax Authority allowing for a reduced tax rate).
Taxation of the Company Shareholders
Capital Gains
Capital gain tax is
imposed on the disposal of capital assets by an Israeli resident, and on the disposal of such assets by a non-Israel resident if
those assets are (i) located in Israel, (ii) are shares or a right to a share in an Israeli resident corporation, or (iii) represent,
directly or indirectly, rights to assets located in Israel, unless a tax treaty between Israel and the seller’s country of
residence provides otherwise. The Ordinance distinguishes between “Real Capital Gain” and the “Inflationary Surplus.”
Real Capital Gain is the excess of the total capital gain over Inflationary Surplus computed generally on the basis of the increase
in the Israeli consumer price index between the date of purchase and the date of disposal. Inflationary Surplus is not currently
subject to tax in Israel.
The Real Capital Gain
accrued by Israeli individual residents on the sale of our ordinary shares (that were purchased after January 1, 2012, whether
listed on a stock exchange or not) will be taxed at the rate of 25%. However, if such shareholder is a “Controlling Shareholder”
(i.e., a person who holds, directly or indirectly, alone or together with such person’s relative or another person, 10% or
more of one of the Israeli resident company’s means of control (including, among other things, the right to receive profits
of the company, voting rights, the right to receive the company’s liquidation proceeds and the right to appoint a director))
at the time of sale or at any time during the preceding 12 month period and/or claims a deduction for interest and linkage differences
expenses in connection with the purchase and holding of such shares, such capital gain will be taxed at the rate of 30%.
The Real Capital Gain
derived by Israeli corporation residents will be generally subject to the ordinary corporate tax (23% in 2019 and thereafter).
Israeli individual
resident shareholders dealing in securities, or to whom such income is otherwise taxable as ordinary business income are taxed
in Israel at their marginal rates applicable to business income (up to 50% in 2019, including, Excess Tax, if any, as described
below).
Notwithstanding the
foregoing, Real Capital Gain derived from the sale of our ordinary shares by a non-Israeli resident (whether an individual or a
corporation) shareholder may be exempt under the Ordinance from Israeli capital gains provided that such shareholder did not acquire
their shares prior to January 1, 2009 or acquired their shares after the Company was listed for trading on Nasdaq or another recognized
exchange and such gains were not derived from a permanent establishment of such shareholder in Israel. These provisions dealing
with capital gain are not applicable to a person whose gains from selling or otherwise disposing of the shares are deemed to be
business income. However, non-Israeli corporations will not be entitled to the foregoing exemptions if an Israeli resident (i)
holds more than 25% of the means of control in such non-Israeli corporation or (ii) is the beneficiary of or is entitled to 25%
or more of the revenues or profits of such non-Israeli corporation, in each case, whether directly or indirectly.
In addition, the sale
of shares may be exempt from Israeli capital gain tax under the provisions of an applicable tax treaty (subject to the receipt
in advance of a valid certificate from the Israel Tax Authority allowing for an exemption).
For example, the Convention
between the Government of the United States of America and the Government of Israel with respect to Taxes on Income, as amended,
or the U.S.-Israel Tax Treaty, exempts U.S. residents (for the purposes of the U.S.-Israel Tax Treaty) from Israeli capital gain
tax in connection with a sale, unless (i) the U.S. resident owned, directly or indirectly, 10% or more of the Israeli resident
company’s voting power at any time within the 12 month period preceding such sale, subject to certain conditions; (ii) the
seller, being an individual, is present in Israel for a period or periods of 183 days or more in the aggregate during the relevant
taxable year; and (iii) the capital gain from the sale, exchange or disposition was derived through a permanent establishment that
the U.S. resident maintains in Israel; (iv) the capital gains arising from such sale, exchange or disposition is attributed to
real estate located in Israel; or (v) the capital gains arising from such sale, exchange or disposition is attributed to royalties.
In any such case, the sale, exchange or disposition of our ordinary shares would be subject to Israeli tax, to the extent applicable.
However, under the U.S.-Israel Tax Treaty, such U.S. resident would be permitted to claim a credit for such taxes against U.S.
federal income tax imposed on any gain from such sale, exchange or disposition, under the circumstances and subject to the limitations
specified in the U.S.-Israel Tax Treaty.
In some
instances where our shareholders may be liable for Israeli tax on the sale of their ordinary shares, the payment of the consideration
may be subject to withholding of Israeli tax at source, as detailed above. Shareholders may be required to demonstrate that they
are exempt from tax on their capital gains in order to avoid withholding at source at the time of sale. For example, in transactions
involving a sale of all of the shares of an Israeli resident company, in the form of a merger or otherwise, the Israel Tax Authority
may require from shareholders who are not liable for Israeli tax to sign declarations in forms specified by this authority or obtain
a specific exemption from the Israel Tax Authority to confirm their status as non-Israeli resident, and, in the absence of such
declarations or exemptions, may require the purchaser of the shares to withhold taxes at source.
Either the purchaser,
the Israeli stockbrokers or financial institution through which the shares are held is obliged, subject to the above mentioned
exemptions, to withhold tax upon the sale of securities on the amount of the consideration paid upon the sale of the securities
(or on the Real Capital Gain realized on the sale, if known), at the rate of 25% in respect of an individual, at the rate of 30%
in respect of a “Controlling Shareholder” (as defined above), or at a rate of corporate tax, in respect of a corporation
(23% in 2019 and thereafter).
Upon the sale of securities
traded on a stock exchange, a detailed return, including a computation of the tax due, must be filed and an advanced payment must
be paid on January 31 and July 31 of every tax year in respect of sales of securities made within the previous six months. However,
if all tax due was withheld at source according to applicable provisions of the Ordinance and regulations promulgated thereunder,
the aforementioned return need not be filed and no advance payment must be paid. Capital gain is also reportable on the annual
income tax returns.
Dividends
A distribution of dividends
from income to an Israeli resident individual, which is not attributed to an Approved Enterprise/Benefited Enterprise/Preferred
Enterprise, will generally be subject to income tax at a rate of 25%. However, a 30% tax rate will apply if the dividend recipient
is a “Controlling Shareholder” (as defined above) at the time of distribution or at any time during the preceding 12
month period. If the recipient of the dividend is an Israeli resident corporation, such dividend will generally be exempt from
tax provided the income from which such dividend is distributed was derived or accrued within Israel.
Distribution of dividends
from income attributed to a Preferred Enterprise is generally subject to a tax at a rate of 20%. However, if such dividends are
distributed to an Israeli resident company, and are subsequently distributed to individuals or a non-Israeli company, withholding
tax at a rate of 20% or such lower rate as may be provided in an applicable tax treaty will apply. Dividends distributed from income
attributed to an Approved Enterprise and/or a Benefited Enterprise are subject to a tax rate of 15%. If the dividend is attributable
partly to income derived from an Approved Enterprise, Benefited Enterprise or Preferred Enterprise, and partly from other sources
of income, the income tax rate will be a blended rate reflecting the relative portions of the types of income.
The Ordinance generally
provides that a non-Israeli resident (either individual or corporation) is subject to an Israeli tax on the receipt of dividends
at the rate of 25% (30% if the dividends recipient is a “Controlling Shareholder” (as defined above), at the time of
distribution or at any time during the preceding 12 month period); those rates are subject to a reduced tax rate or an exemption
from tax under the provisions of an applicable tax treaty.
For example, under
the U.S.-Israel Tax Treaty, the following rates will apply in respect of dividends distributed by an Israeli resident company to
a U.S. resident (for purposes of the U.S.-Israel Tax Treaty): (i) with regard to a dividend distributed from income which is not
attributed to an Approved Enterprise/Benefited Enterprise/Preferred Enterprise, if the U.S. resident is a corporation which holds
during that portion of the taxable year which precedes the date of payment of the dividend and during the whole of its prior taxable
year (if any), at least 10% of the outstanding shares of the voting stock of the Israeli resident paying corporation and not more
than 25% of the gross income of the Israeli resident paying corporation for such prior taxable year (if any) consists of certain
type of interest or dividends – the maximum tax rate of withholding is 12.5% if a certificate for a reduced withholding tax
rate would be provided in advance from the Israeli Tax Authority, (ii) with regard to a dividend distributed from income derived
from an Approved Enterprise/Benefited Enterprise under the Investment Law, if the U.S. resident is a corporation which holds during
that portion of the taxable year which precedes the date of payment of the dividend and during the whole of its prior taxable year
(if any), at least 10% of the outstanding shares of the voting stock of the Israeli resident paying corporation and not more than
25% of the gross income of the Israeli resident paying corporation for such prior taxable year (if any) consists of certain type
of interest or dividends, the tax rate of withholding 15% will be applicable if a certificate for a reduced withholding tax rate
would be provided in advance from the Israeli Tax Authority, and (iii) in all other cases, the tax rate is 25%. The aforementioned
rates under the U.S.-Israel Tax Treaty will not apply if the dividend income was derived through a permanent establishment that
the U.S. resident maintains in Israel.
A non-Israeli resident
who receives dividend income derived from or accrued from Israel, from which the full amount of tax was withheld at source, is
generally exempt from the obligation to file tax returns in Israel with respect to such income, provided that (i) such income was
not generated from business conducted in Israel by the taxpayer, (ii) the taxpayer has no other taxable sources of income in Israel
with respect to which a tax return is required to be filed and (iii) the taxpayer is not obliged to pay Excess Tax (as described
below).
Payors of dividends
on our shares, including the Israeli stockbroker effectuating the transaction, or the financial institution through which the securities
are held, are required, subject to any of the foregoing exemptions, reduced tax rates and the demonstration of a shareholder of
his, her or its foreign residency, to withhold taxes upon the distribution of dividends at a rate of 25%, provided that the shares
are registered with a nominee company (for corporations and individuals).
Excess Tax
Individuals who are
subject to tax in Israel (whether such individual is an Israeli resident or non-Israeli resident) are also subject to an additional
tax, at a rate of 3%, on annual income exceeding a certain threshold (NIS 649,560 for 2019), which amount is linked to the annual
change in the Israeli consumer price index, including, but not limited to income derived from dividends, interest and capital gains.
Foreign Exchange Regulations
Non-residents of Israel
who hold our ordinary shares are able to receive any dividends, and any amounts payable upon the dissolution, liquidation and winding
up of our affairs, repayable in non-Israeli currency at the rate of exchange prevailing at the time of conversion. However, Israeli
income tax is generally required to have been paid or withheld on these amounts. In addition, the statutory framework for the potential
imposition of currency exchange control has not been eliminated, and may be restored at any time by administrative action.
Estate and Gift Tax
Israeli law presently
does not impose estate or gift taxes.
Certain U.S. Federal Income Tax Considerations
The following is a
general summary of certain material U.S. federal income tax consequences relating to the purchase, ownership and disposition of
our ordinary shares by U.S. Holders (as defined below). This summary is based on the Internal Revenue Code of 1986, as amended,
or the Code, the regulations of the U.S. Department of the Treasury issued pursuant to the Code, or the Treasury Regulations, the
income tax treaty between the United States and Israel, or the U.S.-Israel Tax Treaty, and administrative and judicial interpretations
thereof, all as in effect on the date hereof and all of which are subject to change, possibly with retroactive effect, or to different
interpretation. No ruling has been sought from the IRS with respect to any U.S. federal income tax consequences described below,
and there can be no assurance that the IRS or a court will not take a contrary position. This summary is no substitute for consultation
by prospective investors with their own tax advisors and does not constitute tax advice. This summary applies only to U.S. Holders
that hold our ordinary shares as capital assets for U.S. federal income tax purposes (generally, property held for investment)
and does not address all of the tax considerations that may be relevant to specific U.S. Holders in light of their particular circumstances
or to U.S. Holders subject to special treatment under U.S. federal income tax law (including, without limitation, banks, insurance
companies, tax-exempt entities, retirement plans, regulated investment companies, partnerships, dealers in securities, brokers,
real estate investment trusts, certain former citizens or residents of the United States, persons who acquire our ordinary shares
as part of a straddle, hedge, conversion transaction or other integrated investment, persons who acquire our ordinary shares through
the exercise or cancellation of employee stock options or otherwise as compensation for their services, persons that have a “functional
currency” other than the U.S. dollar, persons that own (or are deemed to own, indirectly, or by attribution) 10% or more
of our shares (by vote or value), or persons that mark their securities to market for U.S. federal income tax purposes). This summary
does not address any U.S. state or local or non-U.S. tax considerations, any U.S. federal estate, gift or alternative minimum tax
considerations, or any U.S. federal tax consequences other than U.S. federal income tax consequences.
As used in this summary,
the term “U.S. Holder” means a beneficial owner of our ordinary shares that is, for U.S. federal income tax purposes,
(i) an individual citizen or resident of the United States, (ii) a corporation, or other entity taxable as a corporation for U.S.
federal income tax purposes, created or organized in or under the laws of the United States, any state thereof, or the District
of Columbia, (iii) an estate the income of which is subject to U.S. federal income tax regardless of its source, or (iv) a trust
with respect to which a court within the United States is able to exercise primary supervision over its administration and one
or more U.S. persons have the authority to control all of its substantial decisions, or that has a valid election in effect under
applicable Treasury Regulations to be treated as a “United States person.”
If an entity or arrangement
treated as a partnership for U.S. federal income tax purposes holds our ordinary shares, the tax treatment of such entity or arrangement
treated as a partnership and each person treated as a partner thereof generally will depend upon the status and activities of the
entity and such person. A holder that is treated as a partnership for U.S. federal income tax purposes should consult its own tax
advisor regarding the U.S. federal income tax considerations applicable to it and its partners of the purchase, ownership and disposition
of our ordinary shares.
Prospective investors
should be aware that this summary does not address the tax consequences to investors who are not U.S. Holders. Prospective investors
should consult their own tax advisors as to the particular tax considerations applicable to them relating to the purchase, ownership
and disposition of our ordinary shares, including the applicability of U.S. federal, state and local tax laws and non-U.S. tax
laws.
Taxation of U.S. Holders
Distributions
.
Subject to the discussion below under “Passive Foreign Investment Company,” a U.S. Holder that receives a distribution
with respect to an ordinary share generally will be required to include the amount of such distribution in gross income as a dividend
(without reduction for any Israeli tax withheld from such distribution) when actually or constructively received to the extent
of the U.S. Holder’s pro rata share of our current and/or accumulated earnings and profits (as determined under U.S. federal
income tax principles). Any distributions in excess of our earnings and profits will be applied against and will reduce (but not
below zero) the U.S. Holder’s tax basis in its ordinary shares, and, to the extent they exceed that tax basis, will be treated
as gain from the sale or exchange of our ordinary shares. We do not intend to calculate our earnings and profits under U.S. federal
income tax principles. Therefore, a U.S. Holder should expect that a distribution will be treated as a dividend even if that distribution
would otherwise be treated as a non-taxable return of capital or as capital gain under the rules described above.
As noted above, we
do not anticipate paying any cash dividends in the foreseeable future. If we were to pay dividends, we expect to pay such dividends
in NIS. A dividend paid in NIS, including the amount of any Israeli taxes withheld, will be includible in a U.S. Holder’s
income at a U.S. dollar amount calculated by reference to the exchange rate in effect on the date such dividend is received, regardless
of whether the payment is in fact converted into U.S. dollars. If the dividend is converted to U.S. dollars on the date of receipt,
a U.S. Holder generally will not recognize a foreign currency gain or loss. However, if the U.S. Holder converts the NIS into U.S.
dollars on a later date, the U.S. Holder must include, in computing its income, any gain or loss resulting from any exchange rate
fluctuations. The gain or loss will be equal to the difference between (i) the U.S. dollar value of the amount included in income
when the dividend was received and (ii) the amount received on the conversion of the NIS into U.S. dollars. Such gain or loss generally
will be ordinary income or loss and will be U.S. source income or loss for U.S. foreign tax credit purposes. U.S. Holders should
consult their own tax advisors regarding the tax consequences to them if we pay dividends in NIS or any other non-U.S. currency.
Subject to certain
significant conditions and limitations, any Israeli taxes paid on or withheld from distributions from us and not refundable to
a U.S. Holder may be credited against the U.S. Holder’s U.S. federal income tax liability or, alternatively, may be deducted
from the U.S. Holder’s taxable income. The election to deduct, rather than credit, foreign taxes, is made on a year-by-year
basis and applies to all foreign taxes paid by a U.S. Holder or withheld from a U.S. Holder that year. Dividends paid on the ordinary
shares generally will constitute income from sources outside the United States and be categorized as “passive category income”
or, in the case of some U.S. Holders, as “general category income” for U.S. foreign tax credit purposes. Because the
rules governing foreign tax credits are complex, U.S. Holders should consult their own tax advisors regarding the availability
of foreign tax credits in their particular circumstances.
Dividends paid on the
ordinary shares will not be eligible for the “dividends-received” deduction generally allowed to corporate U.S. Holders
with respect to dividends received from U.S. corporations.
Certain distributions
treated as dividends that are received by an individual U.S. Holder from a “qualified foreign corporation” generally
qualify for a 20% reduced maximum tax rate so long as certain holding period and other requirements are met. A non-U.S. corporation
(other than a “passive foreign investment company,” or “PFIC”, for the taxable year in which the dividend
is paid or the preceding taxable year) generally will be considered to be a qualified foreign corporation (i) if it is eligible
for the benefits of a comprehensive tax treaty with the United States which the Secretary of Treasury of the United States determines
is satisfactory for purposes of this provision and which includes an exchange of information program, or (ii) with respect to any
dividend it pays on stock which is readily tradable on an established securities market in the United States. Dividends paid by
us in a taxable year in which we are not a PFIC and with respect to which we were not a PFIC in the preceding taxable year are
expected to be eligible for the 20% reduced maximum tax rate, although we can offer no assurances in this regard. However, any
dividend paid by us in a taxable year in which we are a PFIC or were a PFIC in the preceding taxable year will be subject to tax
at regular ordinary income rates (along with any applicable additional PFIC tax liability, as discussed below). As discussed below
under “Passive Foreign Investment Company,” we believe that we were a PFIC for our 2018 taxable year and expect to
be a PFIC for the 2019 taxable year. Because PFIC status is determined annually and is based on our income, assets and activities
for the entire taxable year, it is not possible to determine with certainty whether we will be characterized as a PFIC for the
2019 taxable year until after the close of the year, and there can be no assurance that we will not be classified as a PFIC in
any future year.
The additional 3.8%
“net investment income tax” (discussed below under “Medicare Tax on Investment Income”) may apply to dividends
received by certain U.S. Holders who meet certain modified adjusted gross income thresholds.
Sale, Exchange or
Other Taxable Disposition of Ordinary Shares
. Subject to the discussion under “Passive Foreign Investment Company”
below, a U.S. Holder generally will recognize capital gain or loss upon the sale, exchange, or other taxable disposition of our
ordinary shares in an amount equal to the difference between the amount realized on the sale, exchange, or other taxable disposition
and the U.S. Holder’s adjusted tax basis (determined under U.S. federal income tax rules) in such ordinary shares. This capital
gain or loss will be long-term capital gain or loss if the U.S. Holder’s holding period in our ordinary shares exceeds one
year. Preferential tax rates for long-term capital gain (currently, with a maximum rate of 20%) will apply to individual U.S. Holders.
The deductibility of capital losses is subject to limitations. The gain or loss generally will be income or loss from sources within
the United States for U.S. foreign tax credit purposes, subject to certain possible exceptions under the U.S.-Israel Tax Treaty.
The additional 3.8% “net investment income tax” (discussed below under “Medicare Tax on Investment Income”)
may apply to gains recognized upon the sale, exchange, or other taxable disposition of our ordinary shares by certain U.S. Holders
who meet certain modified adjusted gross income thresholds.
U.S. Holders should
consult their own tax advisors regarding the U.S. federal income tax consequences of receiving currency other than U.S. dollars
upon the disposition of our ordinary shares.
Passive Foreign
Investment Company.
In general, a non-U.S. corporation will be treated as a PFIC for U.S. federal income tax purposes
in any taxable year in which either (i) at least 75% of its gross income is “passive income,” or (ii) on average at
least 50% of its assets by value produce passive income or are held for the production of passive income. Passive income for this
purpose generally includes, among other things, certain dividends, interest, royalties, rents and gains from commodities and securities
transactions and from the sale or exchange of property that gives rise to passive income. Passive income also includes amounts
derived by reason of the temporary investment of funds, including those raised in a public offering. Assets that produce or are
held for the production of passive income include cash, even if held as working capital or raised in a public offering, marketable
securities and other assets that may produce passive income. In determining whether a non-U.S. corporation is a PFIC, a proportionate
share of the income and assets of each corporation in which it owns, directly or indirectly, at least a 25% interest (by value)
is taken into account.
A foreign corporation’s
PFIC status is an annual determination that is based on tests that are factual in nature, and our status for any year will depend
on our income, assets, and activities for such year. Based upon our review of our financial data, we believe that we were a PFIC
for our 2018 taxable year and expect to be a PFIC for the 2019 taxable year. Because PFIC status is determined annually and is
based on our income, assets and activities for the entire taxable year, it is not possible to determine with certainty whether
we will be characterized as a PFIC for the 2019 taxable year until after the close of the year, and there can be no assurance that
we will not be classified as a PFIC in any future year.
Default PFIC Rules
.
If we are a PFIC for any tax year, a U.S. Holder who does not make a timely “qualified electing fund” election, or
“QEF election” (as discussed below), or a mark-to-market election (as described below), referred to in this summary
as a “Non-Electing U.S. Holder,” will be subject to special rules with respect to (i) any “excess distribution”
(generally, the portion of any distributions received by the Non-Electing U.S. Holder on the ordinary shares in a taxable year
in excess of 125% of the average annual distributions received by the Non-Electing U.S. Holder in the three preceding taxable years,
or, if shorter, the Non-Electing U.S. Holder’s holding period for the ordinary shares), and (ii) any gain realized on the
sale or other disposition of such ordinary shares. Under these rules:
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the excess distribution or
gain would be allocated ratably over the Non-Electing U.S. Holder’s holding period for such ordinary shares;
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the amount allocated to the current taxable year and any year prior to us becoming a PFIC would be taxed as ordinary income; and
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the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayer for that year, and an interest charge for the deemed deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year.
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If a Non-Electing U.S.
Holder who is an individual dies while owning our ordinary shares, the Non-Electing U.S. Holder’s successor would be ineligible
to receive a step-up in tax basis of such ordinary shares. Non-Electing U.S. Holders should consult their tax advisors regarding
the application of the “net investment income tax” (discussed below under “Medicare Tax on Investment Income”)
to their specific situation.
To the extent a distribution
on our ordinary shares does not constitute an excess distribution to a Non-Electing U.S. Holder, such Non-Electing U.S. Holder
generally will be required to include the amount of such distribution in gross income as a dividend to the extent of our current
and/or accumulated earnings and profits (as determined for U.S. federal income tax purposes) that are not allocated to excess distributions.
The tax consequences of such distributions are discussed above under “Taxation of U.S. Holders—Distributions.”
Each U.S. Holder is encouraged to consult its own tax advisor with respect to the appropriate U.S. federal income tax treatment
of any distribution on our ordinary shares.
If we are treated as
a PFIC for any taxable year during the holding period of a Non-Electing U.S. Holder, we will continue to be treated as a PFIC for
all succeeding years during which the Non-Electing U.S. Holder is treated as a direct or indirect Non-Electing U.S. Holder even
if we are not a PFIC in any such year. A U.S. Holder is encouraged to consult its tax advisor with respect to any available elections
that may be applicable in such a situation, including the “deemed sale” election of Code Section 1298(b)(1) (which
will be taxed under the adverse tax rules described above).
We may invest in the
equity of foreign corporations that are PFICs or may own subsidiaries that own PFICs. If we are classified as a PFIC, under attribution
rules, U.S. Holders will be subject to the PFIC rules with respect to their indirect ownership interests in such PFICs, such that
a disposition of the ordinary shares of the PFIC or receipt by us of a distribution from the PFIC generally will be treated as
a deemed disposition of such ordinary shares or the deemed receipt of such distribution by the U.S. Holder, subject to taxation
under the PFIC rules. There can be no assurance that a U.S. Holder will be able to make a QEF election or a mark-to-market election
with respect to PFICs in which we invest. Each U.S. Holder is encouraged to consult its own tax advisor with respect to tax consequences
of an investment by us in a corporation that is a PFIC.
QEF Election
.
Certain of the adverse consequences of PFIC status can be mitigated if a U.S. Holder makes a QEF election. A U.S. Holder who makes
a timely QEF election, referred to in this disclosure as an “Electing U.S. Holder,” with respect to us must report
for U.S. federal income tax purposes his pro rata share of our ordinary earnings and net capital gain, if any, for our taxable
year that ends with or within the taxable year of the Electing U.S. Holder. The “net capital gain” of a PFIC is the
excess, if any, of the PFIC’s net long-term capital gains over its net short-term capital losses. The amount so included
in income generally will be treated as ordinary income to the extent of such Electing U.S. Holder’s allocable share of the
PFIC’s ordinary earnings and as long-term capital gain to the extent of such Electing U.S. Holder’s allocable share
of the PFIC’s net capital gains. Such Electing U.S. Holder generally will be required to translate such income into U.S.
dollars based on the average exchange rate for the PFIC’s taxable year with respect to the PFIC’s functional currency.
Such income generally will be treated as income from sources outside the United States for U.S. foreign tax credit purposes. Amounts
previously included in income by such Electing U.S. Holder under the QEF rules generally will not be subject to tax when they are
distributed to such Electing U.S. Holder. The Electing U.S. Holder’s tax basis in our ordinary shares generally will increase
by any amounts so included under the QEF rules and decrease by any amounts not included in income when distributed.
An Electing U.S. Holder
will be subject to U.S. federal income tax on such amounts for each taxable year in which we are a PFIC, regardless of whether
such amounts are actually distributed to such Electing U.S. Holder. However, an Electing U.S. Holder may, subject to certain limitations,
elect to defer payment of current U.S. federal income tax on such amounts, subject to an interest charge. If an Electing U.S. Holder
is an individual, any such interest will be treated as non-deductible “personal interest.”
Any net operating losses
or net capital losses of a PFIC will not pass through to the Electing U.S. Holder and will not offset any ordinary earnings or
net capital gain of a PFIC recognized by the Electing U.S. Holder in subsequent years.
So long as an Electing
U.S. Holder’s QEF election with respect to us is in effect with respect to the entire holding period for our ordinary shares,
any gain or loss recognized by such Electing U.S. Holder on the sale, exchange or other disposition of such shares generally will
be long-term capital gain or loss if such Electing U.S. Holder has held such shares for more than one year at the time of such
sale, exchange or other disposition. Preferential tax rates for long-term capital gain (currently, a maximum rate of 20%) will
apply to individual U.S. Holders. The deductibility of capital losses is subject to limitations.
In general, a U.S.
Holder must make a QEF election on or before the due date for filing its income tax return for the first year to which the QEF
election is to apply. A U.S. Holder makes a QEF election by completing the relevant portions of and filing IRS Form 8621 in accordance
with the instructions thereto. Upon request, we will annually furnish U.S. Holders with information needed in order to complete
IRS Form 8621 (which form would be required to be filed with the IRS on an annual basis by the U.S. Holder) and to make and maintain
a valid QEF election for any year in which we or any of our subsidiaries that we control is a PFIC. There is no assurance, however,
that we will have timely knowledge of our status as a PFIC, or that the information that we provide will be adequate to allow U.S.
Holders to make a QEF election. A QEF election will not apply to any taxable year during which we are not a PFIC, but will remain
in effect with respect to any subsequent taxable year in which we become a PFIC. Each U.S. Holder should consult its own tax advisor
with respect to the advisability of, the tax consequences of, and the procedures for making a QEF election with respect to us.
Mark-to-Market Election
.
Alternatively, if our ordinary shares are treated as “marketable stock,” a U.S. Holder would be allowed to make a “mark-to-market”
election with respect to our ordinary shares, provided the U.S. Holder completes and files IRS Form 8621 in accordance with the
relevant instructions and related Treasury Regulations. If that election is made, the U.S. Holder generally would include as ordinary
income in each taxable year the excess, if any, of the fair market value of our ordinary shares at the end of the taxable year
over such holder’s adjusted tax basis in such ordinary shares. The U.S. Holder would also be permitted an ordinary loss in
respect of the excess, if any, of the U.S. Holder’s adjusted tax basis in our ordinary shares over their fair market value
at the end of the taxable year, but only to the extent of the net amount previously included in income as a result of the mark-to-
market election. A U.S. Holder’s tax basis in our ordinary shares would be adjusted to reflect any such income or loss amount.
Gain realized on the sale, exchange or other disposition of our ordinary shares would be treated as ordinary income, and any loss
realized on the sale, exchange or other disposition of our ordinary shares would be treated as ordinary loss to the extent that
such loss does not exceed the net mark-to-market gains previously included in income by the U.S. Holder, and any loss in excess
of such amount will be treated as capital loss. Amounts treated as ordinary income will not be eligible for the favorable tax rates
applicable to qualified dividend income or long-term capital gains.
Generally, stock will
be considered marketable stock if it is “regularly traded” on a “qualified exchange” within the meaning
of applicable Treasury Regulations. A class of stock is regularly traded on an exchange during any calendar year during which such
class of stock is traded, other than in de minimis quantities, on at least 15 days during each calendar quarter. To be marketable
stock, our ordinary shares must be regularly traded on a qualifying exchange (i) in the United States that is registered with the
SEC or a national market system established pursuant to the Exchange Act or (ii) outside the United States that is properly regulated
and meets certain trading, listing, financial disclosure and other requirements. Our ordinary shares are expected to constitute
“marketable stock” as long as they remain listed on the Nasdaq Capital Market and are regularly traded.
A mark-to-market election
will not apply to our ordinary shares held by a U.S. Holder for any taxable year during which we are not a PFIC, but will remain
in effect with respect to any subsequent taxable year in which we become a PFIC. Such election will not apply to any PFIC subsidiary
that we own. Each U.S. Holder is encouraged to consult its own tax advisor with respect to the availability and tax consequences
of a mark-to-market election with respect to our ordinary shares.
Each U.S. Holder should
consult its own tax adviser with respect to the applicability of the “net investment income tax” (discussed below under
“Medicare Tax on Investment Income”) where a mark-to-market election is in effect.
In addition, U.S. Holders
should consult their tax advisors regarding the IRS information reporting and filing obligations that may arise as a result of
the ownership of ordinary shares in a PFIC, including IRS Form 8621, Information Return by a Shareholder of a Passive Foreign Investment
Company or Qualified Electing Fund.
The U.S. federal
income tax rules relating to PFICs, QEF elections, and mark-to market elections are complex. U.S. Holders are urged to consult
their own tax advisors with respect to the purchase, ownership and disposition of our ordinary shares, any elections available
with respect to such ordinary shares and the IRS information reporting obligations with respect to the purchase, ownership and
disposition of our ordinary shares.
Certain Reporting Requirements
Certain U.S. Holders
may be required to file IRS Form 926, Return by U.S. Transferor of Property to a Foreign Corporation, and IRS Form 5471, Information
Return of U.S. Persons With Respect to Certain Foreign Corporations, reporting transfers of cash or other property to us and information
relating to the U.S. Holder and us. Substantial penalties may be imposed upon a U.S. Holder that fails to comply. See also the
discussion regarding Form 8621, Information Return by a Shareholder of a Passive Foreign Investment Company or Qualified Electing
Fund, above.
In addition, certain
U.S. Holders must report information on IRS Form 8938, Statement of Specified Foreign Financial Assets, with respect to their investments
in certain “specified foreign financial assets,” which may include an investment in our ordinary shares, if the aggregate
value of all of those assets exceeds $50,000 on the last day of the taxable year (and in some circumstances, a higher threshold).
This reporting requirement applies to individuals and certain U.S. entities.
U.S. Holders who fail
to report required information could become subject to substantial penalties. U.S. Holders should consult their tax advisors regarding
the possible implications of these reporting requirements arising from their investment in our ordinary shares.
Backup Withholding Tax and Information
Reporting Requirements
Generally, information
reporting requirements will apply to distributions on our ordinary shares or proceeds on the disposition of our ordinary shares
paid within the United States (and, in certain cases, outside the United States) to U.S. Holders other than certain exempt recipients,
such as corporations. Furthermore, backup withholding (currently at 24%) may apply to such amounts if the U.S. Holder fails to
(i) provide a correct taxpayer identification number, (ii) report interest and dividends required to be shown on its U.S. federal
income tax return, or (iii) make other appropriate certifications in the required manner. U.S. Holders who are required to establish
their exempt status generally must provide such certification on IRS Form W-9.
Backup withholding
is not an additional tax. Amounts withheld as backup withholding from a payment may be credited against a U.S. Holder’s U.S.
federal income tax liability and such U.S. Holder may obtain a refund of any excess amounts withheld by filing the appropriate
claim for refund with the IRS and furnishing any required information in a timely manner.
Medicare Tax on Investment Income
Certain U.S. persons,
including individuals, estates and trusts, will be subject to an additional 3.8% Medicare tax, or “net investment income
tax,” on unearned income. For individuals, the additional net investment income tax applies to the lesser of (i) “net
investment income” or (ii) the excess of “modified adjusted gross income” over $200,000 ($250,000 if married
and filing jointly or $125,000 if married and filing separately). “Net investment income” generally equals the taxpayer’s
gross investment income reduced by the deductions that are allocable to such income. Investment income generally includes, among
other things, passive income such as interest, dividends, annuities, royalties, rents, and capital gains. U.S. Holders are urged
to consult their own tax advisors regarding the implications of the additional net investment income tax resulting from their ownership
and disposition of our ordinary shares.
THE DISCUSSION ABOVE
IS A GENERAL SUMMARY. IT DOES NOT COVER ALL TAX MATTERS THAT MAY BE OF IMPORTANCE TO A PROSPECTIVE INVESTOR. EACH PROSPECTIVE INVESTOR
IS URGED TO CONSULT ITS OWN TAX ADVISOR ABOUT THE TAX CONSEQUENCES RELATING TO THE PURCHASE, OWNERSHIP AND DISPOSITION OF OUR ORDINARY
SHARES IN LIGHT OF THE INVESTOR’S OWN CIRCUMSTANCES, INCLUDING THE CONSEQUENCES OF ANY PROPOSED CHANGE IN APPLICABLE LAWS.
RESEARCH
GRANTS
We previously received
grants from the Government of the State of Israel through the Innovation Authority, or IIA (formerly known as the Office of the
Chief Scientist of the Israeli Ministry of Economy and Industry, or the OCS), for a research and development program (including
a follow-up program for the clinical development of the Accordion Pill) in the aggregate amount of approximately NIS 50.2 million.
However, in March 2018, we repaid a portion of the grant amounts received in 2016 in the amount of approximately NIS 8.1 million
(approximately $2.3 million), including interest and linkage differences, following a review and assessment by the IIA of the 2016
program. We have not yet paid royalties to the IIA for these programs as we currently have no revenues from sales of products whose
development was assisted by the governmental grants. As of February 27, 2019, the aggregate net amount of grants that we have received
from the IIA is approximately NIS 42.3 million (or approximately $11.3 million), which amount has accrued aggregate interest of
approximately $650,000 as of such date.
In February 2018, the
IIA approved our request to transfer all of the manufacturing rights of our AP-CD/LD product candidate that was developed under
one of the IIA funded programs to LTS. As a result, we will be required to pay the IIA royalties from revenue generated from our
AP-CD/LD product candidate at an increased rate and up to an increased cap amount. The IIA noted that the approval granted was
exceptional and that the IIA will not approve us manufacturing additional product candidates out of Israel. For a description of
our obligations in connection with the grants from IIA under the Encouragement of Industrial Research, Development and Technological
Innovation in the Industry Law, 5744-1984, see “Item 1. — Business — Research Grants — Grants Under the
Innovation Law” and “Item 1-A. Risk Factors — Risks Related to Our Operations in Israel” in our Annual
Report on Form 10-K for the year ended December 31, 2018.
PLAN OF DISTRIBUTION
We have entered into
a sales agreement with Cowen, under which we may issue and sell from time to time up to $75,000,000 of our ordinary shares through
Cowen as our sales agent. Sales of our ordinary shares, 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
the Nasdaq Capital Market or any other existing trading market for our ordinary shares. If authorized by us in writing, Cowen may
purchase shares of our ordinary shares as principal.
Cowen will offer our
ordinary shares subject to the terms and conditions of the sales agreement on a daily basis or as otherwise agreed upon by us and
Cowen. We will designate the maximum amount of ordinary shares to be sold through Cowen on a daily basis or otherwise determine
such maximum amount together with Cowen. Subject to the terms and conditions of the sales agreement, Cowen will use its commercially
reasonable efforts to sell on our behalf all of the ordinary shares requested to be sold by us. We may instruct Cowen not to sell
ordinary shares if the sales cannot be effected at or above the price designated by us in any such instruction. Cowen or we may
suspend the offering of our ordinary shares being made through Cowen under the sales agreement upon proper notice to the other
party. Cowen and we each have the right, by giving written notice as specified in the sales agreement, to terminate the sales agreement
in each party’s sole discretion at any time.
The aggregate compensation
payable to Cowen as sales agent will be an amount equal to up to 3.0% of the gross sales price of the shares sold through it pursuant
to the sales agreement. We have also agreed to reimburse up to an aggregate of $75,000 of Cowen’s actual outside legal expenses
incurred by Cowen in connection with this offering. We estimate that the total expenses of the offering payable by us, excluding
commissions payable to Cowen under the sales agreement, will be approximately $400,000.
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 ordinary shares.
Cowen will provide
written confirmation to us following the close of trading on the Nasdaq Capital Market on each day in which ordinary shares are
sold through it as sales agent under the sales agreement. Each confirmation will include the number of ordinary shares sold through
it as sales agent on that day, the volume weighted average price of the shares sold, the percentage of the daily trading volume
and the net proceeds to us.
We will report at least
quarterly the number of ordinary shares sold through Cowen under the sales agreement, the net proceeds to us and the compensation
paid by us to Cowen in connection with the sales of ordinary shares.
Settlement for sales
of ordinary shares will occur, unless the parties agree otherwise or as 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 ordinary shares on our behalf, Cowen will be deemed to be an “underwriter” within the meaning of the
Securities Act, and the compensation paid to Cowen will be deemed to be underwriting commissions or discounts. We have agreed in
the sales agreement to provide indemnification and contribution to Cowen against certain liabilities, including liabilities under
the Securities Act. As sales agent, Cowen will not engage in any transactions that stabilize our ordinary shares.
Our ordinary shares are listed on the Nasdaq
Capital Market and trade under the symbol “NTEC.” The transfer agent of our ordinary shares is VStock Transfer, LLC.
Cowen and/or its 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
with respect to U.S. law will be passed upon for us by McDermott Will & Emery LLP, New York, New York and certain legal matters
with respect to Israeli law will be passed upon for us by Meitar Liquornik Geva Leshem Tal, Law Offices, Ramat Gan, Israel. Cowen
and Company, LLC is being represented by Cooley LLP, New York, New York, with respect to U.S. law and by Gornitzky & Co., Tel-Aviv,
Israel, with respect to Israeli law in connection with this offering.
EXPERTS
The financial statements
incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2018 have been
so incorporated in reliance on the report (which contains an explanatory paragraph relating to the Company’s ability to
continue as a going concern as described in Note 1(2) to the financial statements) of Kesselman & Kesselman, Certified Public
Accountants (Isr.), an independent registered public accounting firm and a member firm of PricewaterhouseCoopers International
Limited, given on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
Prior to January 1,
2019, we were subject to the reporting requirements of the Exchange Act that are applicable to a foreign private issuer. In accordance
with the Exchange Act, we filed reports, including annual reports on Form 20-F, with the SEC. We also furnished to the SEC under
cover of Form 6-K material information required to be made public in Israel, filed with and made public by any stock exchange or
distributed by us to our shareholders. We were also exempt from the rules under the Exchange Act prescribing the furnishing and
content of proxy statements to shareholders and our officers, directors and principal shareholders were exempt from the “short-swing
profits” reporting and liability provisions contained in Section 16 of the Exchange Act and related Exchange Act rules.
Effective January 1,
2019, we are required to file periodic reports and registration statements on U.S. domestic issuer forms with the SEC, which are
more detailed and extensive in certain respects, and which must be filed more promptly, than the forms available to a foreign private
issuer. In addition, we are now required to comply with U.S. proxy requirements and Regulation FD (Fair Disclosure) and our officers,
directors and principal shareholders are subject to the beneficial ownership reporting and short-swing profit recovery requirements
in Section 16 of the Exchange Act.
We have filed a registration
statement on Form S-3 with the SEC under the Securities Act of 1933. This prospectus is part of the registration statement but
the registration statement includes and incorporates by reference additional information and exhibits. We file annual, quarterly
and current reports, proxy statements and other information with the SEC. The SEC maintains a web site that contains reports, proxy
and information statements and other information regarding companies, such as ours, that file documents electronically with the
SEC. The address of that site on the worldwide web is http://www.sec.gov. The information on the SEC’s web site is not part
of this prospectus, and any references to this web site or any other web site are inactive textual references only.
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE
The SEC allows us to
“incorporate by reference” information that we file with it into this prospectus, which means that we can disclose
important information to you by referring you to those documents. The information incorporated by reference is an important part
of this prospectus. The information incorporated by reference is considered to be a part of this prospectus, and information that
we file later with the SEC will automatically update and supersede information contained in this prospectus and any accompanying
prospectus supplement.
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our Annual Report on Form 10-K for the fiscal year ended on December 31, 2018, filed with the SEC on February 27, 2019;
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our
Current Reports on Form 8-K (other than the information furnished pursuant to Item 2.02 or 7.01 thereof or related exhibits
furnished pursuant to Item 9.01 thereof) filed with the SEC January 2, 2019, January 7, 2019, January 25, 2019, and February
27, 2019; and
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●
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the description of our ordinary shares contained in Item 1 of the Registration Statement on Form 8-A (File No. 001-37521), filed with the SEC on July 28, 2015, including any amendment or report filed for the purpose of updating such description.
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All filings filed by
us pursuant to the Exchange Act after the date of the initial filing of this registration statement of which this prospectus supplement
and the accompanying prospectus is a part and prior to the effectiveness of such registration statement (excluding information
furnished pursuant to Items 2.02 and 7.01 of Form 8-K) shall also be deemed to be incorporated by reference into the prospectus.
You should rely only
on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to provide you
with different information. Any statement contained in a document incorporated by reference into this prospectus will be deemed
to be modified or superseded for the purposes of this prospectus to the extent that a later statement contained in this prospectus
or in any other document incorporated by reference into this prospectus 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 not assume that the information in this prospectus is accurate as of any date other than the date of this prospectus or
the date of the documents incorporated by reference in this prospectus.
We will provide you
without charge, upon your written or oral request, a copy of any of the documents incorporated by reference in this prospectus,
other than exhibits to such documents which are not specifically incorporated by reference into such documents. Please direct your
written or telephone requests to 12 Hartom Street, Har Hotzvim, Jerusalem 9777512, Israel Attn: Chief Financial Officer, telephone
number +972 (2) 586 4657. You may also obtain information about us by visiting our website at
www.intecpharma.com
. Except
for the specific incorporated documents listed above, no information available on or through our website shall be deemed to be
incorporated in this prospectus or the registration statement of which it forms a part.
INTEC
PHARMA LTD.
Up
to $75,000,000
Ordinary
Shares
PROSPECTUS SUPPLEMENT
Cowen
,
2019
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The statement of estimated expenses in connection
with the issuance and distribution of the securities being registered, other than sales discounts and commissions:
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SEC registration fee
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$
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24,240
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Transfer agents’ fees
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*
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Printing and engraving costs
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*
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Legal fees and expenses
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*
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Accountants 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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These fees and expenses depend on the securities offered and the number of issuances and accordingly cannot be estimated at this
time.
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Item 15. Indemnification of Directors and Officers
Under the Israeli Companies
Law 5759-1999, or the Companies Law, a company may not exculpate an office holder from liability for a breach of the duty of loyalty.
An Israeli company may exculpate an office holder in advance from liability to the company, in whole or in part, for damages caused
to the company as a result of a breach of duty of care but only if a provision authorizing such exculpation is included in its
articles of association. Our articles of association include such a provision. Under the Companies Law, a company may not exculpate
in advance a director from liability arising out of a breach of the duty of care with respect to a dividend or distribution to
shareholders.
Under the Companies
Law and the Israeli Securities Law, 5728-1968, or the Israeli Securities Law, a company may indemnify an office holder in respect
of the following liabilities and expenses incurred for acts performed by him or her as an office holder, pursuant to an undertaking
made either in advance of an event or following an event, provided its articles of association include a provision authorizing
such indemnification:
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financial liability imposed on him or her in favor of another person pursuant to a judgment, including a settlement or arbitrator’s award approved by a court. However, if an undertaking to indemnify an office holder with respect to such liability is provided in advance, then such an undertaking must be limited to events which, in the opinion of the board of directors, can be foreseen based on the company’s activities when the undertaking to indemnify is given, and to an amount or according to criteria determined by the board of directors as reasonable under the circumstances, and such undertaking shall detail the abovementioned foreseen events and amount or criteria;
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reasonable litigation expenses, including attorneys’ fees, incurred by the office holder (i) as a result of an investigation or proceeding instituted against him or her by an authority authorized to conduct such investigation or proceeding, provided that (A) no indictment was filed against such office holder as a result of such investigation or proceeding; and (B) no financial liability, such as a criminal penalty, was imposed upon him or her as a substitute for the criminal proceeding as a result of such investigation or proceeding or, if such financial liability was imposed, it was imposed with respect to an offense that does not require proof of criminal intent; and (ii) in connection with a monetary sanction; and
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reasonable litigation expenses, including attorneys’ fees, incurred by the office holder or imposed by a court in proceedings instituted against him or her by the company, on its behalf, or by a third party, or in connection with criminal proceedings in which the office holder was acquitted, or as a result of a conviction for an offense that does not require proof of criminal intent; and
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expenses, including reasonable litigation expenses and legal fees, incurred by an office holder in relation to an administrative proceeding instituted against such office holder, or certain compensation payments made to an injured party imposed on an office holder by an administrative proceeding, pursuant to certain provisions of the Israeli Securities Law.
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Under the Companies
Law and the Israeli Securities Law, a company may insure an office holder against the following liabilities incurred for acts performed
by him or her as an office holder if and to the extent provided in the company’s articles of association:
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●
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a breach of the duty of loyalty to the company, provided that the office holder acted in good faith and had a reasonable basis to believe that the act would not harm the company;
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a breach of duty of care to the company or to a third party, to the extent such a breach arises out of the negligent conduct of the office holder; and
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a financial liability imposed on the office holder in favor of a third party.
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Under our articles
of association, we may insure and indemnify an office holder against the aforementioned liabilities as well as the following liabilities:
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any breach of duty of care to us or to a third party;
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any other action which is permitted by law to insure an office holder against;
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any financial liability in favor of a victim of a felony pursuant to Section 52 of the Israeli Securities Law.
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Under the Companies
Law, a company may not indemnify, exculpate or insure an office holder against any of the following:
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a breach of the duty of loyalty, except for indemnification and insurance for a breach of the duty of loyalty to the company to the extent that the office holder acted in good faith and had a reasonable basis to believe that the act would not harm the company;
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a breach of duty of care committed intentionally or recklessly, excluding a breach arising solely out of the negligent conduct of the office holder;
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an act or omission committed with intent to derive illegal personal benefit; or
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a civil or administrative fine or forfeit levied against the office holder.
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Under the Companies
Law, exculpation, indemnification and insurance of office holders in a public company must be approved by the compensation committee
and the board of directors and, with respect to certain office holders or under certain circumstances, also by the shareholders.
Our articles of association permit us to exculpate, indemnify and insure our office holders to the fullest extent permitted or
to be permitted by the Companies Law and the Israeli Securities Law.
We have entered into
agreements with each of our directors and executive officers exculpating them, to the fullest extent permitted by law and our articles
of association, and undertaking to indemnify them to the fullest extent permitted by law and our articles of association. This
indemnification is limited to events determined as foreseeable by the board of directors based on our activities, and to an amount
or according to criteria determined by the board of directors as reasonable under the circumstances.
The maximum indemnification
amount set forth in such agreements is limited to an amount which shall not exceed 25% of our shareholders equity based on our
most recently audited or reviewed financial statements prior to actual payment of the indemnification amount. Such maximum amount
is in addition to any amount paid (if paid) under insurance and/or by a third-party pursuant to an indemnification arrangement.
In the opinion of the
SEC, indemnification of directors and office holders for liabilities arising under the Securities Act, however, is against public
policy and therefore unenforceable.
We have obtained directors’
and officers’ liability insurance for the benefit of our office holders and intend to continue to maintain such coverage
and pay all premiums thereunder to the fullest extent permitted by the Companies Law. In addition, we have entered into agreements
with each of our office holders undertaking to indemnify them to the fullest extent permitted by the Companies Law, including with
respect to liabilities resulting from this offering to the extent that these liabilities are not covered by insurance.
Item 16. Exhibits
The index to exhibits
appears below on the page immediately before the signature pages of this Registration Statement.
Item 17. Undertakings
(a)
The undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided
,
however, that paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration
statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(5) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(6) That,
for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities:
The undersigned
Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule
424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to
by the undersigned Registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(b)
That, for the purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) The
undersigned Registrant hereby undertakes to supplement the prospectus, after the expiration of the subscription period (if any),
to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount
of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public
offering by the underwriters is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective
amendment will be filed to set forth the terms of such offering.
(h) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to any charter provision, by law or otherwise, the Registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than payment
by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of such issue.
(j) To
file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act (the “Act”) in accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
EXHIBIT INDEX
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Exhibit No.
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Document
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1.1
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Form of Underwriting Agreement.*
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1.2
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Sales Agreement, dated March 1, 2019, by and between Intec Pharma Ltd. And Cowen and Company, LLC
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4.1
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Specimen share certificate (filed as Exhibit 2.1 to the Registrant’s Annual Report on Form 20-F for the fiscal year ended December 31, 2017 filed with the SEC on March 9, 2018) (File No. 001-37521) and incorporated by reference herein).
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4.2
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Form of Warrant Agreement (including form of Warrant Certificate).*
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4.3
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Form of Subscription Right Agreement (including form of Right Certificate).*
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4.4
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Form of Debt Security.*
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4.5
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Form of Senior Indenture.
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4.6
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Form of Subordinated Indenture.
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4.7
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Form of Unit Agreement (including form of Unit Certificate).*
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5.1
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Opinion of Meitar Liquornik Geva Leshem Tal, Israeli legal counsel to the Registrant.
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5.2
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Opinion of McDermott Will & Emery LLP, U.S. legal counsel to the Registrant.
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23.1
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Consent of Kesselman & Kesselman, Certified Public Accountants (Isr.) independent registered public accounting firm, a member firm of PricewaterhouseCoopers International Limited.
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23.2
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Consent of Meitar Liquornik Geva Leshem Tal (included in Exhibit 5.1).
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23.3
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Consent of McDermott Will & Emery LLP (included in Exhibit 5.2).
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24.1
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Power of Attorney (included on signature page to Registration Statement).
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25.1
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Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of the Trusts under the Indenture**
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*
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To be filed, if applicable, by amendment, or as an exhibit to a report on Form 8-K and incorporated herein by reference.
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**
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To be filed by amendment to this registration statement
or by a report filed under the Securities Act of 1934, as amended, and incorporated herein by reference.
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SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Jerusalem, State of Israel on March 1, 2019.
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By:
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/s/ Jeffrey Meckler
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Name:
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Jeffrey Meckler
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Title:
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Chief Executive Officer
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KNOW ALL PERSONS BY
THESE PRESENTS, each director and officer whose signature appears below constitutes and appoints Jeffrey Meckler or Nir Sassi,
or either of these, his true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, to sign
in any and all capacities any and all amendments or post-effective amendments to this registration statement on Form S-3, and to
sign any and all additional registration statements relating to the same offering of securities of the Registration Statement that
are filed pursuant to Rule 462(b) of the Securities Act, and to file the same with all exhibits thereto and other documents in
connection therewith with the Securities and Exchange Commission, granting such attorney-in-fact and agent full power and authority
to do all such other acts and execute all such other documents as he may deem necessary or desirable in connection with the foregoing,
as fully as the undersigned may or could do in person, hereby ratifying and confirming all that such attorney-in-fact and agent
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the
dates indicated.
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Signature
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Title
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/s/
Dr. John W. Kozarich
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Chairman of the Board of Directors
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March 1, 2019
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Dr. John W. Kozarich
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/s/ Jeffrey A. Meckler
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Chief Executive Officer and Vice-Chairman of the Board of Directors
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March 1, 2019
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Jeffrey A. Meckler
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(Principal Executive Officer)
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/s/ Nir Sassi
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Chief Financial Officer
(Principal Financial and Accounting Officer)
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March 1, 2019
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Nir Sassi
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/s/
Gil Bianco
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Director
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March 1, 2019
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Gil Bianco
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/s/
Anthony J. Maddaluna
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Director
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March 1, 2019
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Anthony J. Maddaluna
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/s/
Hila Karah
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Director
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March 1, 2019
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Hila Karah
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/s/
Issac Silberman
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Director
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March 1, 2019
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Issac Silberman
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/s/
Roger J. Pomerantz, M.D.
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Director
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March 1, 2019
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Roger J. Promerantz, M.D.
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William B. Hayes
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Director
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March 1, 2019
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William B. Hayes
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Signature of authorized representative
in the United States
Pursuant to the requirements
of the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of Intec Pharma
Ltd. has signed this registration statement on the 1st day of March, 2019.
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INTEC PHARMA, INC.
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By:
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/s/ Nir
Sassi
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Name:
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Nir Sassi
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Title:
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Treasurer and Secretary
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II-7
Exhibit 1.2
INTEC PHARMA
LTD.
$75,000,000
ORDINARY
SHARES
SALES
AGREEMENT
March
1, 2019
Cowen and Company, LLC
599 Lexington Avenue
New York, NY 10022
Ladies and Gentlemen:
Intec Pharma Ltd.,
a company organized and existing under the laws of the State of Israel, public company number 513022780 (the “
Company
”),
confirms its agreement (this “
Agreement
”) with Cowen and Company, LLC (“
Cowen
”),
as follows:
1.
Issuance
and Sale of Shares
. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject
to the conditions set forth herein, it may issue and sell through Cowen, acting as agent and/or principal, shares (the “
Placement
Shares
”) of the Company’s ordinary shares, no par value per share (the “
Ordinary Shares
”),
having an aggregate offering price of up to $75,000,000. Notwithstanding anything to the contrary contained herein, the parties
hereto agree that compliance with the limitation set forth in this
Section 1
on the number of Ordinary Shares issued and
sold under this Agreement shall be the sole responsibility of the Company, and Cowen shall have no obligation in connection with
such compliance. The issuance and sale of Ordinary Shares through Cowen will be effected pursuant to the Registration Statement
(as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “
Commission
”),
although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement (as defined below)
to issue the Placement Shares.
The Company has filed
or will file, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the “
Securities Act
”), with the Commission a registration statement on Form S-3, including
a base prospectus, relating to certain securities, including the Ordinary Shares, to be issued from time to time by the Company,
and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the
Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “
Exchange
Act
”). The Company has prepared a prospectus supplement specifically relating to the Placement Shares (the “
Prospectus
Supplement
”) to the base prospectus included as part of such registration statement. The Company has furnished to
Cowen, for use by Cowen, copies of the base prospectus included as part of such registration statement, as supplemented by the
Prospectus Supplement, relating to the Placement Shares. Except where the context otherwise requires, such registration statement,
as amended when it became effective, including all documents filed as part thereof or incorporated by reference therein, and including
any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under
the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B or 462(b) of the Securities Act,
is herein called the “
Registration Statement.
” The base prospectus, including all documents incorporated
therein by reference, included in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form
in which such base prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant
to Rule 424(b) under the Securities Act, together with any “issuer free writing prospectus,” as defined in Rule 433
of the Securities Act regulations (“
Rule 433
”), relating to the Placement Shares that (i) is required
to be filed with the Commission by the Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i), in each case in the
form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g), is herein called the “
Prospectus
.” Any reference herein to the Registration
Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated
by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement”
with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution
hereof of any document with the Commission deemed to be incorporated by reference therein. For purposes of this Agreement, all
references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any
copy filed with the Commission pursuant to the Electronic Data Gathering, Analysis, and Retrieval system (“
EDGAR
”).
2.
Placements
.
Each time that the Company wishes to issue and sell any Placement Shares hereunder (each, a “
Placement
”),
it will notify Cowen by email notice (or other method mutually agreed to in writing by the parties) (a “
Placement Notice
”)
containing the parameters in accordance with which it desires the Placement Shares to be sold, which shall at a minimum include
the number or dollar amount of Placement Shares to be issued, the time period during which sales are requested to be made, any
limitation on the number of Placement Shares that may be sold in any one Trading Day (as defined in Section 3) and any minimum
price below which sales may not be made, a form of which containing such minimum sales parameters necessary is attached hereto
as
Schedule 1
. The Placement Notice shall originate from any of the individuals from the Company set forth on
Schedule
2
(with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each
of the individuals from Cowen set forth on
Schedule 2
, as such
Schedule 2
may be amended from time
to time. The Placement Notice shall be effective upon receipt by Cowen unless and until (i) in accordance with the notice requirements
set forth in Section 4, Cowen declines to accept the terms contained therein for any reason, in its sole discretion, (ii) the entire
amount of the Placement Shares thereunder have been sold, (iii) in accordance with the notice requirements set forth in Section
4, the Company suspends or terminates the Placement Notice, in its sole discretion, (iv) the Company issues a subsequent Placement
Notice, in its sole discretion, with parameters superseding those on the earlier dated Placement Notice, or (v) this Agreement
has been terminated under the provisions of
Section 11
. The amount of any discount, commission or other compensation
to be paid by the Company to Cowen in connection with the sale of the Placement Shares shall be calculated in accordance with the
terms set forth in
Schedule 3
.
It is expressly acknowledged and agreed that neither the Company nor Cowen will have
any obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers a Placement
Notice to Cowen and Cowen does not decline such Placement Notice pursuant to the terms set forth above, and then only upon the
terms specified therein and herein. In the event of a conflict between the terms of this Agreement and the terms of a Placement
Notice, the terms of the Placement Notice will control.
3.
Sale
of Placement Shares by Cowen.
Subject to the terms and conditions herein set forth, upon the Company’s delivery of a
Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated
in accordance with the terms of this Agreement, Cowen, for the period specified in the Placement Notice, will use its commercially
reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations
and the rules of the Nasdaq Stock Market, Inc. (“
Nasdaq
”) to sell such Placement Shares up to the amount
specified, and otherwise in accordance with the terms of such Placement Notice. Cowen will provide written confirmation to the
Company (including by email correspondence to each of the individuals of the Company set forth on Schedule 2, if receipt of such
correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) no later
than the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Placement
Shares hereunder setting forth the number of Placement Shares sold on such day, the volume-weighted average price of the Placement
Shares sold, and the Net Proceeds (as defined below) payable to the Company. Subject to the terms of the Placement Notice, Cowen
may sell Placement Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule
415(a)(4) of the Securities Act, including without limitation sales made through Nasdaq or on any other existing trading market
for the Ordinary Shares. Cowen shall not purchase Placement Shares for its own account as principal unless expressly authorized
to do so by the Company in a Placement Notice and permitted by applicable law. The Company acknowledges and agrees that (i) there
can be no assurance that Cowen will be successful in selling Placement Shares, and (ii) Cowen will incur no liability or obligation
to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by Cowen
to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares
as required under this
Section 3
. For the purposes hereof, “
Trading Day
” means any day on which
the Company’s Ordinary Shares are purchased and sold on the principal market on which the Ordinary Shares are listed or quoted.
4.
Suspension
of Sales
.
(a) The
Company or Cowen may, upon notice to the other party in writing (including by email correspondence to each of the individuals of
the other party set forth on
Schedule 2
, if receipt of such correspondence is actually acknowledged by any of the
individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile
transmission or email correspondence to each of the individuals of the other party set forth on
Schedule 2
), suspend
any sale of Placement Shares;
provided, however
, that such suspension shall not affect or impair either party’s obligations
with respect to any Placement Shares sold hereunder prior to the receipt of such notice. While a suspension is in effect any obligation
under Section 7(m), 7(n) and 7(o) with respect to delivery of certificates, opinion, or comfort letters to Cowen, shall be waived.
Each of the parties agrees that no such notice under this
Section 4
shall be effective against the other unless it is made
to one of the individuals named on
Schedule 2
hereto, as such schedule may be amended from time to time.
(b) Notwithstanding
any other provision of this Agreement, during any period in which the Company is in possession of material non-public information,
the Company and Cowen agree that (i) no sale of Placement Shares will take place, (ii) the Company shall not request the sale of
any Placement Shares, and (iii) Cowen shall not be obligated to sell or offer to sell any Placement Shares.
(c) If
either Cowen or the Company 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 Ordinary Shares, it shall promptly notify the other party, and Cowen may,
at its sole discretion, suspend sales of the Placement Shares under this Agreement.
(d) Notwithstanding
any other provision of this Agreement, during any period in which the Registration Statement is no longer effective under the Securities
Act, the Company shall promptly notify Cowen, the Company shall not request the sale of any Placement Shares, and Cowen shall not
be obligated to sell or offer to sell any Placement Shares.
5.
Settlement.
(a)
Settlement
of Placement Shares
. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares
will occur on the second (2
nd
) Trading Day (or such earlier day as is industry practice for regular-way trading) following
the date on which such sales are made (each, a “
Settlement Date
” and the first such settlement date,
the “
First Delivery Date
”). The amount of proceeds to be delivered to the Company on a Settlement Date
against receipt of the Placement Shares sold (the “
Net Proceeds
”) will be equal to the aggregate sales
price received by Cowen at which such Placement Shares were sold, after deduction for (i) Cowen’s commission, discount
or other compensation for such sales payable by the Company pursuant to
Section 2
hereof, (ii) any other amounts due and
payable by the Company to Cowen hereunder pursuant to
Section 7(g)
(Expenses) hereof, and (iii) any transaction fees imposed
by any governmental or self-regulatory organization in respect of such sales.
(b)
Delivery
of Placement Shares
. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Placement Shares being sold by crediting Cowen’s or its designee’s account (provided Cowen shall have
given the Company written notice of such designee prior to the Settlement Date) at The Depository Trust Company through its Deposit
and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto which
in all cases shall be freely tradeable, transferable, registered shares in good deliverable form. On each Settlement Date, Cowen
will deliver the related Net Proceeds in same day funds to an account designated by the Company on, or prior to, the Settlement
Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver duly
authorized Placement Shares on a Settlement Date through no fault of Cowen, the Company agrees that in addition to and in no way
limiting the rights and obligations set forth in
Section 9(a)
(Indemnification and Contribution) hereto, it will (i) hold
Cowen harmless against any loss, claim, damage, or reasonable documented expense (including reasonable legal fees and expenses),
as incurred, arising out of or in connection with such default by the Company and (ii) pay to Cowen, without duplication, any commission,
discount, or other compensation to which it would otherwise have been entitled absent such default.
6.
Representations
and Warranties of the Company
. The Company represents and warrants to, and agrees with, Cowen that, unless such representation
or warranty specifies a different time, as of the date of this Agreement, each Representation Date (as defined in Section 7(m)),
each date on which a Placement Notice is given, and any date on which Placement Shares are sold hereunder:
(a)
Compliance
with Registration Requirements
. The Registration Statement and any Rule 462(b) Registration Statement have been declared
effective by the Commission under the Securities Act. The Company has complied to the Commission’s satisfaction with all
requests of the Commission for additional or supplemental information. No stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement is in effect and no proceedings for such purpose have been instituted
or are pending or, to the knowledge of the Company, contemplated or threatened by the Commission. The Company meets the requirements
for use of Form S-3 under the Securities Act. The sale of the Placement Shares hereunder meets the requirements of General Instruction
I.B.1 of Form S-3.
(b)
No Misstatement
or Omission
. The Prospectus when filed complied and, as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act. Each of the Registration Statement, any Rule 462(b) Registration Statement, the Prospectus
and any post-effective amendments or supplements thereto, at the time it became effective or its date, as applicable, complied
and as of each of the Settlement Dates, if any, complied in all material respects with the Securities Act and did not and, as of
each Settlement Date, if any, did not and will not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, as amended or supplemented,
as of its date, did not and, as of each of the Settlement Dates, if any, will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The representations and warranties set forth in the two immediately preceding sentences do not
apply to statements in or omissions from the Registration Statement, any Rule 462(b) Registration Statement, or any post-effective
amendment thereto, or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with information
relating to Cowen furnished to the Company in writing by Cowen expressly for use therein. There are no contracts or other documents
required to be described in the Prospectus or to be filed as exhibits to the Registration Statement which have not been described
or filed as required.
(c)
Offering
Materials Furnished to Cowen
. The Company has delivered or made available to Cowen one complete copy of the Registration Statement
and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement
(without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as Cowen has reasonably
requested.
(d)
Emerging
Growth Company
. The Company is an “emerging growth company,” as defined in Section 2(a) of the Securities Act (an
“
Emerging Growth Company
”).
(e)
Distribution
of Offering Material By the Company
. The Company has not distributed and will not distribute, prior to the completion of Cowen’s
distribution of the Placement Shares, any offering material in connection with the offering and sale of the Placement Shares other
than the Prospectus or the Registration Statement.
(f)
The Sales
Agreement
. This Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the
Company, enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable law
and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general equitable principles.
(g)
Authorization
of the Ordinary Shares
. The Placement Shares will be duly authorized for issuance and sale pursuant to this Agreement and,
when issued and delivered by the Company against payment therefor pursuant to this Agreement, will be duly authorized, validly
issued, fully paid and nonassessable.
(h)
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.
(i)
Preparation
of the Financial Statements
. The financial statements of the Company (including all notes and schedules thereto) included or
incorporated by reference in the Registration Statement and Prospectus present fairly in all material respects the financial position
of the Company and its consolidated subsidiaries as of and at the dates indicated and the statement of operations, shareholders’
equity and cash flows of the Company and its consolidated subsidiaries for the periods specified; and such financial statements
and related schedules and notes thereto, and the unaudited financial information filed with the Commission or incorporated by reference
as part of the Registration Statement, have been prepared in conformity with generally accepted accounting principles in the United
States (“
U.S. GAAP
”), consistently applied throughout the periods involved, otherwise as noted therein. The
summary and selected financial data included or incorporated by reference in the Registration Statement and Prospectus present
fairly in all material respects the information shown therein as at the respective dates and for the respective periods specified
and have been presented on a basis consistent with the consolidated financial statements set forth in the Registration Statement
and Prospectus. The pro forma financial statements and the related notes thereto included or incorporated by reference in the Registration
Statement and the Prospectus present fairly in all material respects the information shown therein, have been prepared in accordance
in all material respects with the Commission’s rules and guidelines with respect to pro forma financial statements and have
been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. 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 all material respects in accordance with the Commission’s
rules and guidelines applicable thereto.
(j)
Independent
Accountants
. Kesselman & Kesselman, Certified Public Accountant (Israel), a member firm of PricewaterhouseCoopers
International Limited (the “
Auditor
”), whose reports are filed with the Commission or incorporated by
reference as a part of the Registration Statement and the Prospectus, are and, during the periods covered by their reports, were
independent public accountants as required by the Securities Act.
(k)
Incorporation
and Good Standing of the Company and its Subsidiaries
. The Company and each of its subsidiaries, including each entity (corporation,
partnership, joint venture, association or other business organization) controlled directly or indirectly by the Company (each,
a “subsidiary”), has been duly organized and is validly existing as a corporation in good standing (where such concept
is recognized in the relevant jurisdiction) under the laws of its jurisdiction of incorporation or formation. The Company has the
power and authority (corporate or otherwise) to carry on its business as is currently being conducted and as described in the Registration
Statement and the Prospectus, and to own, lease and operate its properties. All of the issued shares of capital stock of, or other
ownership interests in, each subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable
and are owned, directly or indirectly, by the Company, free and clear of any lien, charge, mortgage, pledge, security interest,
claim, limitation on voting rights, equity, trust or other encumbrance, preferential arrangement, defect or restriction of any
kind whatsoever. The Company and each of its subsidiaries is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which the nature of the business conducted by it or location of the assets or properties owned,
leased or licensed by it requires such qualification, except for such jurisdictions where the failure to so qualify individually
or in the aggregate would not have a material adverse effect on the assets, properties, condition, financial or otherwise, or in
the results of operations, business affairs or business prospects of the Company and its subsidiaries considered as a whole (a
“
Material Adverse Effect
”); and to the Company’s knowledge, no proceeding has been instituted in
any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification.
To the extent the Company has only one subsidiary, references to “subsidiaries” herein shall mean “subsidiary”.
(l)
Ineligible
Issuer
. The Company currently is not an “ineligible issuer,” as defined in Rule 405 of the rules and regulations
of the Commission. The Company agrees to notify Cowen promptly upon the Company becoming an “ineligible issuer.”
(m)
Intellectual
Property
. The Company and its subsidiaries own or possess the valid right to use all (i) patents, patent applications, trademarks,
trademark registrations, service marks, service mark registrations, Internet domain name registrations, copyrights, copyright
registrations, licenses, trade secret rights (“
Intellectual Property Rights
”) and (ii) inventions, software,
works of authorships, trademarks, service marks, trade names, databases, formulae, know how, Internet domain names and other intellectual
property (including trade secrets and other unpatented and/or unpatentable proprietary confidential information, systems, or procedures)
(collectively, "
Intellectual Property Assets
") necessary to conduct their respective businesses as currently
conducted, and as proposed to be conducted and described in the Prospectus. The Company and its subsidiaries have not received
any opinion from their legal counsel concluding that any activities of their respective businesses infringe, misappropriate, or
otherwise violate, valid and enforceable Intellectual Property Rights of any other person, and have not received written notice
of any challenge, which is to their knowledge still pending, by any other person to the rights of the Company and its subsidiaries
with respect to any Intellectual Property Rights or Intellectual Property Assets owned or used by the Company or its subsidiaries.
To the knowledge of the Company, the Company and its subsidiaries’ respective businesses as now conducted do not give rise
to any infringement of, any misappropriation of, or other violation of, any valid and enforceable Intellectual Property Rights
of any other person. All licenses for the use of the Intellectual Property Rights described in the Prospectus are valid, binding
upon, and enforceable by or against the parties thereto in accordance to its terms. The Company has complied in all material respects
with, and is not in breach nor has received any asserted or threatened claim of breach of any Intellectual Property license, and
the Company has no knowledge of any breach or anticipated breach by any other person to any Intellectual Property license. Except
as described in the Prospectus, no claim has been made against the Company alleging the infringement by the Company of any patent,
trademark, service mark, trade name, copyright, trade secret, license in or other intellectual property right or franchise right
of any person. The Company has taken all reasonable steps to protect, maintain and safeguard in all material respects its Intellectual
Property Rights, including the execution of appropriate nondisclosure and confidentiality agreements. The consummation of the
transactions contemplated by this Agreement will not result in the loss or impairment of or payment of any additional amounts
with respect to, nor require the consent of any other person in respect of, the Company's right to own, use, or hold for use any
of the Intellectual Property Rights as owned, used or held for use in the conduct of the business as currently conducted.
(n)
Consents
and Permits
. Except as disclosed in the Registration Statement and the Prospectus, and except with respect to the consent of
the Israeli Innovation Authority (“
IIA
”) to be obtained in connection with the offering of the Placement Shares
and the required filings with the Israeli Registrar of Companies, the Company and its Subsidiaries have made all filings, applications
and submissions required by, possesses and is operating in compliance with, all approvals, licenses, certificates, certifications,
clearances, consents, grants, exemptions, marks, notifications, orders, permits and other authorizations issued by, the appropriate
federal, state or foreign Governmental Authority (as defined in Section 21(b)) (including, without limitation, the United States
Food and Drug Administration (the “
FDA
”), the United States Drug Enforcement Administration or any other
foreign, federal, state, provincial, court or local government or regulatory authorities including self-regulatory organizations
engaged in the regulation of clinical trials, pharmaceuticals, biologics or biohazardous substances or materials) necessary for
the ownership or lease of their respective properties or to conduct its businesses as described in the Registration Statement and
the Prospectus (collectively, “
Permits
”), except for such Permits the failure of which to possess, obtain
or make the same would not have a Material Adverse Effect; the Company and its Subsidiaries are in compliance with the terms and
conditions of all such Permits, except where the failure to be in compliance would not have a Material Adverse Effect; all of the
Permits are valid and in full force and effect, except where any invalidity, individually or in the aggregate, would not be reasonably
expected to have a Material Adverse Effect; and neither the Company nor any of its Subsidiaries has received any written notice
relating to the limitation, revocation, cancellation, suspension, modification or non-renewal of any such Permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, or has
any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course. To
the extent required by applicable laws and regulations of the FDA, the Company or the applicable Subsidiary has submitted to the
FDA an Investigational New Drug Application or amendment or supplement thereto for each clinical trial it has conducted or sponsored
or is conducting or sponsoring; all such submissions were in material compliance with applicable laws and rules and regulations
when submitted and no material deficiencies have been asserted by the FDA with respect to any such submissions.
(o)
Regulatory
Filings
. Except as disclosed in the Registration Statement and the Prospectus, and except with respect to the consent of the
IIA to be obtained in connection with the offering of the Placement Shares, neither the Company nor any of its Subsidiaries has
failed to file with the applicable Governmental Authorities (including, without limitation, the FDA, or any foreign, federal, state,
provincial or local Governmental Authority performing functions similar to those performed by the FDA) any required filing, declaration,
listing, registration, report or submission, except for such failures that, individually or in the aggregate, would not have a
Material Adverse Effect; except as disclosed in the Registration Statement and the Prospectus, all such filings, declarations,
listings, registrations, reports or submissions were in compliance with applicable laws when filed and no deficiencies have been
asserted by any applicable regulatory authority with respect to any such filings, declarations, listings, registrations, reports
or submissions, except for any deficiencies that, individually or in the aggregate, would not have a Material Adverse Effect. The
Company has operated and currently is, in all material respects, in compliance with the United States Federal Food, Drug, and Cosmetic
Act, all applicable rules and regulations of the FDA and other federal, state, local and foreign Governmental Authority exercising
comparable authority. The Company has no knowledge of any studies, tests or trials not described in the Prospectus the results
of which reasonably call into question in any material respect the results of the studies, tests and trials described in the Prospectus.
(p)
Clinical
Studies
. The preclinical studies and tests and clinical trials described in the Prospectus were, and, if still pending, are
being conducted in all material respects in accordance with the experimental protocols, procedures and controls pursuant to, where
applicable, accepted professional and scientific standards for products or product candidates comparable to those being developed
by the Company; the descriptions of such studies, tests and trials, and the results thereof, contained in the Prospectus are accurate
and complete in all material respects; the Company is not aware of any tests, studies or trials not described in the Prospectus,
the results of which reasonably call into question the results of the tests, studies and trials described in the Prospectus; and
the Company has not received any written notice or correspondence from the FDA or any foreign, state or local Governmental Authority
exercising comparable authority or any institutional review board or comparable authority requiring the termination, suspension,
clinical hold or material modification of any tests, studies or trials.
(q)
Real Property
.
The Company and each of its subsidiaries has good and marketable title in fee simple to all real property, and good and marketable
title to all other property owned by it, in each case free and clear of all liens, encumbrances, claims, security interests and
defects, except such as would not reasonably be expected to have a Material Adverse Effect. All property held under lease by the
Company and its subsidiaries is held by it under valid, existing and enforceable leases, free and clear of all liens, encumbrances,
claims, security interests and defects, except such as would not reasonably be expected to have a Material Adverse Effect.
(r)
No Material
Adverse Change
. Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus,
(i) there has not been any event which could have a Material Adverse Effect; (ii) neither the Company nor any of its subsidiaries
has sustained any loss or interference with its assets, businesses or properties (whether owned or leased) from fire, explosion,
earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative
or other governmental action, order or decree which would have a Material Adverse Effect; and (iii) since the date of the latest
balance sheet included in the Registration Statement and the Prospectus, except as disclosed in the Registration Statement and
the Prospectus, neither the Company nor any of its subsidiaries has (A) issued any securities or incurred any liability or obligation,
direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (B)
entered into any transaction not in the ordinary course of business or (C) declared or paid any dividend or made any distribution
on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any
shares of its capital stock.
(s)
No Defaults
.
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 Securities 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 or incorporated by reference
is in full force and effect and is valid and enforceable by and against the Company or any subsidiary, as the case may be, in accordance
with its terms, except as enforceability thereof may be limited by (i) the application of bankruptcy, reorganization, insolvency
and other laws affecting creditors’ rights generally, (ii) equitable principles being applied at the discretion of a court
before which any proceeding may be brought, (iii) an implied covenant of good faith and fair dealing, (iv) the effects of the possible
judicial application of foreign laws or foreign governmental or judicial action affecting creditors’ rights, (v) consideration
of public policy, and (vi) by federal or state securities laws with respect to the provisions regarding indemnity and contribution
thereunder. Neither the Company, any of its subsidiaries, nor, to the Company’s knowledge, any other party, is in 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 default, in any such case which default or event, individually
or in the aggregate, would have a Material Adverse Effect. No default exists, and no event has occurred which with notice or lapse
of time or both would constitute a default, in the due performance and observance of any term, covenant or condition, by the Company
or any of its subsidiaries, of any other agreement or instrument to which the Company or any of its subsidiaries is a party or
by which the Company or its properties or business or a subsidiary or its properties or business may be bound or affected which
default or event, individually or in the aggregate, would have a Material Adverse Effect.
(t)
Statistical
and Market Related 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.
(u)
No Defaults
or Violations
. Neither the Company nor any of its subsidiaries (i) is in violation of its certificate or articles of incorporation,
articles of association, by-laws, certificate of formation, limited liability company agreement, partnership agreement or other
organizational documents, (ii) is in default under, and no event has occurred which, with notice or lapse of time, or both, would
constitute a default under, or result in the creation or imposition of any lien, charge, mortgage, pledge, security interest, claim,
limitation on voting rights, equity, trust or other encumbrance, preferential arrangement, defect or restriction of any kind whatsoever,
upon, any property or assets of the Company or any of its subsidiaries pursuant to any bond, debenture, note, indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of
its properties or assets are subject, including (A) any instrument of approval granted to any of them by the Israel Innovation
Authority (formerly the Office of the Chief Scientist) of the Israeli Ministry of Economy and Industry and (B) any instrument of
approval granted to any of them by the Authority for Investment and Development of Industry and the Economy (formerly known as
the Investment Center) of the Israeli Ministry of Economy and Industry, and (iii) is in violation of any statute, law, rule, regulation,
ordinance, directive, judgment, decree or order of any judicial, regulatory or other legal or governmental agency or body, foreign
or domestic, except (in the case of clauses (ii) and (iii) above) for violations or defaults that could not (individually or in
the aggregate) reasonably be expected to have a Material Adverse Effect.
(v)
Non-Contravention
.
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 Placement 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,
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 the Company or any of its subsidiaries or
any of 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 articles of association, charter, by-laws
or other organizational documents of the Company or any of its subsidiaries, except (i) to the extent that such breach, violation,
conflict, default, or failure to obtain consent is not reasonably likely to result in a Material Adverse Effect, and (ii) for such
consents or waivers which have already been obtained and are in full force and effect.
(w)
Capitalization.
The Company has authorized and outstanding capital stock as set forth under the caption “Capitalization” in the
Registration Statement and the Prospectus. All of the issued and outstanding Ordinary Shares have been duly and validly issued
and are fully paid and nonassessable. There are no statutory preemptive or other similar rights to subscribe for or to purchase
or acquire any shares of capital stock of the Company or any of its subsidiaries or any such rights pursuant to its articles of
association, charter, by-laws or other organizational documents or any agreement or instrument to or by which the Company or any
of its subsidiaries is a party or bound. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding
option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares
of the Company or any of its subsidiaries or any security convertible into, or exercisable or exchangeable for, such shares. Except
as disclosed in the Registration Statement or Prospectus, the exercise price of each option to acquire Ordinary Shares (each, a
“
Company Stock Option
”) is no less than the fair market value of an Ordinary Share as determined on the
date of grant of such Company Stock Option. All grants of Company Stock Options were validly issued and properly approved by the
Board of Directors of the Company (and, if required, by a committee of the Board of Directors of the Company, and the Company’s
shareholders) in material compliance with all applicable laws and the terms of the plans under which such Company Stock Options
were issued and were recorded on the Company’s financial statements, in accordance with U.S. GAAP and no such grants involved
any “back dating,” “forward dating,” “spring loading” or similar practices with respect to
the effective date of grant. The Ordinary Shares and the Placement Shares conform in all material respects to all statements in
relation thereto contained in the Registration Statement and the Prospectus.
(x)
No Material
Actions or Proceedings
. There are no legal or governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its subsidiaries is the subject which would reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect; and, to the knowledge of the Company, no such proceedings
are threatened or contemplated by Governmental Authorities or threatened by others.
(y)
Necessary
Corporate Action
. All necessary corporate action has been duly and validly taken by the Company to authorize the execution,
delivery and performance of this Agreement and the issuance and sale of the Placement Shares by the Company.
(z)
No Labor
Disputes
. Neither the Company nor any of its subsidiaries is involved in any labor dispute which reasonably be expected to
have a Material Adverse Effect and, to the knowledge of the Company, no such dispute is threatened. The Company is not aware of
any existing or imminent labor disturbance by the employees of any of its principal suppliers or contractors which would have a
Material Adverse Effect. The Company is not aware of any threatened or pending litigation between the Company or any of its subsidiaries
and any of its executive officers which, if adversely determined, could have a Material Adverse Effect and has no reason to believe
that such officers will not remain in the employment of the Company.
(aa)
Related
Party Transactions
. No transaction has occurred between or among the Company and any of its officers or directors, shareholders
or any affiliate or affiliates of any such officer or director or shareholder that is required to be described in and is not described
in the Registration Statement and the Prospectus.
(bb)
No Price
Stabilization or Manipulation
. The Company has not taken, nor will it take, directly or indirectly, any action designed to,
or which might reasonably be expected to cause or result in, or which has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the Ordinary Shares or any security of the Company to facilitate
the sale or resale of any of the Placement Shares. The Company has not engaged in any form of solicitation, advertising or other
action constituting an offer or a sale under the Israeli Securities Law, 5728-1968, as amended, and the regulations promulgated
thereunder in connection with the transactions contemplated hereby which would require the publication of a prospectus in the State
of Israel under the laws of the State of Israel.
(cc)
Tax Law
Compliance
. The Company and each of its subsidiaries has filed all federal, state, local and foreign tax returns which are
required to be filed through the date hereof except in any case in which the failure to so file would not have a Material Adverse
Effect, which returns are true and correct in all material respects or has received timely extensions thereof, and has paid all
taxes shown on such returns and all assessments received by it to the extent that the same are material and have become due. To
the Company’s knowledge, there are no tax audits or investigations pending, which if adversely determined would have a Material
Adverse Effect; nor, to the Company’s knowledge are there any material proposed additional tax assessments against the Company
or any of its subsidiaries.
(dd)
Listing
.
Prior to the sale of any Placement Shares hereunder, the Placement Shares will be approved for listing on the Nasdaq Capital Market,
subject to each body’s final approval and the payment of listing fees. The Company has taken no action designed to, or likely
to have the effect of, terminating the registration of the Ordinary Shares under the Exchange Act or the quotation of the Ordinary
Shares on the Nasdaq Capital Market, nor has the Company received any notification that the Commission or the Nasdaq Capital Market
is contemplating terminating such registration or quotation.
(ee)
Company’s
Accounting System
. The books, records and accounts of the Company and each of its subsidiaries accurately and fairly reflect
in all material respects, the transactions in, and dispositions of, the assets of, and the results of operations of, the Company
and each of its subsidiaries. The Company and each of its subsidiaries 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 authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial statements in accordance with U.S. GAAP and to maintain
asset accountability, (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 the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(ff)
Disclosure
Controls
. The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15
under the Exchange Act) that (i) are designed to ensure that material information relating to the Company is made known to the
Company’s principal executive officer and its principal financial officer by others within the Company, particularly during
the periods in which the periodic reports required under the Exchange Act are required to be prepared; (ii) provide for the periodic
evaluation of the effectiveness of such disclosure controls and procedures at the end of the periods in which the periodic reports
are required to be prepared; and (iii) are effective in all material respects to perform the functions for which they were established.
Based on the evaluation of its disclosure controls and procedures, the Company is not aware of (i) any material weakness or significant
deficiency in the design or operation of internal controls which could adversely affect the Company’s ability to record,
process, summarize and report financial data or any material weaknesses in internal controls; or (ii) any fraud, whether or not
material, that involves management or other employees who have a role in the Company’s internal controls.
(gg)
Prohibited
Activities
. Except as described in the Registration Statement and the Prospectus and as preapproved in accordance with the
requirements set forth in Section 10A of the Exchange Act, the Auditor has not been engaged by the Company to perform any “prohibited
activities” (as defined in Section 10A of the Exchange Act).
(hh)
Off-Balance
Sheet Arrangements
. Except as described in the Registration Statement and the Prospectus, there are no material off-balance
sheet arrangements (as defined in Item 303 of Regulation S-K) that have or are reasonably likely to have a material current or
future effect on the Company’s financial condition, revenues or expenses, changes in financial condition, results of operations,
liquidity, capital expenditures or capital resources.
(ii)
Audit
Committee
. The Company’s Board of Directors has validly appointed an audit committee whose composition satisfies the
requirements of Rule 5605 of the Nasdaq Stock Market and the Israeli Companies Law, 5759-1999, and the Board of Directors and/or
the audit committee has adopted a charter that satisfies the requirements of Rule 5605 of the Nasdaq Stock Market. The audit committee
has reviewed the adequacy of its charter within the past twelve months.
(jj)
Sarbanes-Oxley
.
The Company is in compliance with all applicable provisions of the Sarbanes-Oxley Act of 2002, as amended (the “
Sarbanes-Oxley
Act
”), any related rules and regulations promulgated by the Commission, and all corporate governance requirements
under applicable Nasdaq regulations, and has no reason to believe that it will not be able to comply with such provisions. There
is and has been no failure on the part of the Company or any of its directors or officers, in their capacities as such, to comply
with any provision of the Sarbanes-Oxley Act, including, without limitation, Section 402 related to loans and Sections 302 and
906 related to certifications.
(kk)
Insurance
.
The Company and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and
risks and in such amounts as are customary in the businesses in which it is engaged or proposes to engage after giving effect to
the transactions described in the Prospectus; all policies of insurance and fidelity or surety bonds insuring the Company or any
of its subsidiaries or the Company’s or its subsidiaries’ respective business, assets, employees, officers and directors
are in full force and effect in all material respects; the Company and each of its subsidiaries is in compliance with the terms
of such policies and instruments in all material respects; and the Company has no reason to believe that it and its subsidiaries
will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that is not materially greater than the current cost. Neither
the Company nor any of its subsidiaries has been denied any insurance coverage which it has sought or for which it has applied
in any material respect.
(ll)
Consents
.
Except for the consent of the IIA to be obtained in connection with the offering of the Placement Shares, each approval, consent,
order, authorization, designation, declaration or filing of, by or with any regulatory, administrative or other governmental body
necessary in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions
herein contemplated required to be obtained or performed by the Company (except such additional steps as may be required by the
Financial Industry Regulatory Authority (“
FINRA
”) or as may be necessary to qualify the Placement Shares
for public offering by Cowen under the state securities or Blue Sky laws and the approval by the Nasdaq Capital Market for the
listing of the Placement Shares on the Nasdaq Capital Market) has been obtained or made and is in full force and effect.
(mm)
FINRA
Matters
. There are no associations or affiliations with any members of FINRA among the Company’s officers, directors
or, to the knowledge of the Company, any five percent or greater shareholder of the Company, except as set forth in the Registration
Statement or otherwise disclosed in writing to the Representative.
(nn)
Transfer
Taxes and Duties.
No transaction, stamp or other issuance or transfer taxes or duties, and assuming that Cowen is not otherwise
subject to taxation in Israel due to Israeli tax residence or the existence of a permanent establishment in Israel, no capital
gain, income, transfer, withholding or other tax or duty is payable in the State of Israel by or on behalf of Cowen to any taxing
authority thereof or therein in connection with (i) the issuance, sale and delivery of the Placement Shares by the Company; (ii)
the purchase from the Company, and the initial sale and delivery by Cowen of the Placement Shares to purchasers thereof; (iii)
the holding or transfer of the Placement Shares; (iv) the execution and delivery of this Agreement or any other document to be
furnished hereunder; or (v) any combination of the foregoing clauses (i) through (iv).
(oo)
Compliance
with Environmental Laws
. Except as would not have a Material Adverse Effect, (i) the Company and each of its subsidiaries
is in compliance with all rules, laws and regulation relating to the use, treatment, storage and disposal of toxic substances and
protection of health or the environment (“
Environmental Laws
”) which are applicable to its business;
(ii) neither the Company nor any of its subsidiaries has received any notice from any Governmental Authority or third party of
an asserted claim under Environmental Laws; (iii) each of the Company and its subsidiaries has received all permits, licenses or
other approvals required of it under applicable Environmental Laws to conduct its business and is in compliance with all terms
and conditions of any such permit, license or approval; (iv) to the Company’s knowledge, no facts currently exist that will
require the Company or any of its subsidiaries to make future material capital expenditures to comply with Environmental Laws;
and (v) no property which is or has been owned, leased or occupied by the Company or its subsidiaries has been designated as a
Superfund site pursuant to the Comprehensive Environmental Response, Compensation of Liability Act of 1980, as amended (42 U.S.C.
Section 9601, et. seq.) or otherwise designated as a contaminated site under other applicable Environmental Laws. Neither the Company
nor any of its subsidiaries has been named as a “potentially responsible party” under the CER, CLA 1980.
(pp)
Company
Not an “Investment Company
”. The Company is not and, after giving effect to the offering and sale of the Placement
Shares and the application of proceeds thereof as described in the Prospectus, will not be an “investment company”
within the meaning of the Investment Company Act of 1940, as amended (the “
Investment Company Act
”).
(qq)
No Unlawful
Contributions or Other Payments
. Neither the Company nor any of its subsidiaries nor, to the Company’s knowledge, any
director, officer, employee, agent, affiliate or other person acting on behalf of the Company or any such subsidiary has (i) used
any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity;
(ii) made any direct or indirect unlawful payment to any foreign or domestic government officials or employees, political parties
or campaigns, political party officials, or candidates for political office from corporate funds; (iii) violated or is in violation
of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any applicable anti-corruption laws, rules,
or regulations of any other jurisdiction in which the Company or any such subsidiary conducts business; or (iv) made any other
unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any person.
(rr)
Compliance
with Money Laundering Laws
. The operations of the Company and its subsidiaries are and have been conducted at all times in
compliance with all applicable financial recordkeeping and reporting requirements, including those of the U.S. Bank Secrecy Act,
as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and
its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency (collectively, the “
Anti-Money Laundering Laws
”),
and no action, suit or proceeding by or before any court or governmental agency, authority, body or any arbitrator involving the
Company or any of its subsidiaries with respect to Anti-Money Laundering Laws is pending, or to the knowledge of the Company, threatened.
(ss)
Compliance
with OFAC
.
|
|
(A)
|
Neither the Company nor any of its subsidiaries, nor
any director, officer or employee thereof, nor to the Company’s knowledge, any agent, affiliate, representative, or other
person acting on behalf of the Company or any of its subsidiaries, is an individual or entity (“
Person
”)
that is, or is owned or controlled by a Person that is: (i) the subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control (“
OFAC
”), the United Nations Security
Council (“
UNSC
”), the European Union (“
EU
”), Her Majesty’s Treasury
(“
HMT
”), or other relevant sanctions authority (collectively, “
Sanctions
”),
nor (ii) located, organized, or resident in a country or territory that is the subject of a U.S. government embargo (including,
without limitation, Cuba, Iran, North Kora, Sudan, Syria and the Crimea).
|
|
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(B)
|
The Company will not, directly or indirectly, use the Net Proceeds, or lend, contribute or otherwise
make available such Net Proceeds to any subsidiary, joint venture partner or other Person: (i) to fund or facilitate any activities
or business of or with any Person that, at the time of such funding or facilitation, is the subject of Sanctions, or in any country
or territory that, at the time of such funding or facilitation, is the subject of a U.S. government embargo; or (ii) in any other
manner that will result in a violation of Sanctions by any Person (including Cowen).
|
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(C)
|
For the past five (5) years, the Company and its subsidiaries have not knowingly engaged in, are
not now knowingly engaged in, and will not knowingly engage in, any direct or indirect dealings or transactions with any Person
that at the time of the dealing or transaction is or was the subject of Sanctions or any country or territory that, at the time
of the dealing or transaction is or was the subject of a U.S. government embargo.
|
(tt)
Sales
of Ordinary Shares
. Except as described in the Prospectus, the Company has not sold or issued any Ordinary Shares during the
six-month period preceding the date of the Prospectus, including any sales pursuant to Rule 144A under, or Regulations D or S of,
the Securities Act, other than shares issued pursuant to employee benefit plans, qualified stock options plans or other employee
compensation plans or pursuant to outstanding options, rights or warrants.
(uu)
ERISA
.
Except as would not have a Material Adverse Effect, the Company has fulfilled its obligations, if any, under the minimum funding
standards of Section 302 of the U.S. Employee Retirement Income Security Act of 1974 (“
ERISA
”) and the
regulations and published interpretations thereunder with respect to each “plan” as defined in Section 3(3) of ERISA
and such regulations and published interpretations in which its employees are eligible to participate and each such plan is in
compliance with the presently applicable provisions of ERISA and such regulations and published interpretations. No “Reportable
Event” (as defined in 12 ERISA) has occurred with respect to any “Pension Plan” (as defined in ERISA) for which
the Company could have any liability.
(vv)
Jurisdiction
.
The Company has the power to submit, and pursuant to Section 16 of this Agreement, has legally, validly, effectively and irrevocably
submitted, to the personal jurisdiction of each United States federal court and New York state court located in the Borough of
Manhattan, in the City of New York, New York, U.S.A. (each, a “
New York Court
”), and the Company has
the power to designate, appoint and authorize, and pursuant to Section 16 of this Agreement, has legally, validly, effectively
and irrevocably designated, appointed and authorized an agent for service of process in any action arising out of or relating to
this Agreement in any New York Court, and service of process effected on such authorized agent will be effective to confer valid
personal jurisdiction over the Company as provided in Section 16 hereof.
(ww)
Exchange
Act Compliance
. The documents incorporated or deemed to be incorporated by reference in the Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange
Act, and, when read together with the other information in the Prospectus, at the Settlement Dates, 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 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.
(xx)
Brokers
.
Except for Cowen, there is no broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s
fee or other fee or commission as a result of any transactions contemplated by this Agreement.
(yy)
No Outstanding
Loans or Other Indebtedness
. Except as described in the Prospectus, there are no outstanding loans, advances (except normal
advances for business expenses in the ordinary course of business) or guarantees or indebtedness by the Company to or for the benefit
of any of the officers or directors of the Company or any of the members of any of them.
(zz)
No Reliance
.
The Company has not relied upon Cowen or legal counsel for Cowen for any legal, tax or accounting advice in connection with the
offering and sale of the Placement Shares.
(aaa)
FINRA
Exemption
. To enable Cowen to rely on Rule 5110(b)(7)(C)(i) of FINRA, the Company represents that the Company (i) has a non-affiliate,
public common equity float of at least $150 million or a non-affiliate, public common equity float of at least $100 million and
annual trading volume of at least three million shares and (ii) has been subject to the Exchange Act reporting requirements for
a period of at least 36 months.
(bbb)
Compliance
with Laws
. The Company has not been advised, and has no reason to believe, that it and each of its subsidiaries are not conducting
business in compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business,
except where failure to be so in compliance would not result in a Material Adverse Effect.
Any certificate signed by an officer of
the Company and delivered to Cowen or to counsel for Cowen shall be deemed to be a representation and warranty by the Company to
Cowen as to the matters set forth therein.
The Company acknowledges that Cowen and,
for purposes of the opinions to be delivered pursuant to
Section 7
hereof, counsel to the Company and counsel to Cowen,
will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
7.
Covenants
of the Company
. The Company covenants and agrees with Cowen that:
(a)
Registration
Statement Amendments
. After the date of this Agreement and during any period in which a Prospectus relating to any Placement
Shares is required to be delivered by Cowen under the Securities Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172 under the Securities Act or similar rule), (i) the Company will notify Cowen promptly
of the time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been
filed with the Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any
request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information,
(ii) the Company will prepare and file with the Commission, promptly upon Cowen’s request, any amendments or supplements
to the Registration Statement or Prospectus that, in Cowen’s reasonable opinion, may be necessary or advisable in connection
with the distribution of the Placement Shares by Cowen (
provided, however
, that the failure of Cowen to make such request
shall not relieve the Company of any obligation or liability hereunder, or affect Cowen’s right to rely on the representations
and warranties made by the Company in this Agreement); (iii) the Company will not file any amendment or supplement to the Registration
Statement or Prospectus, other than documents incorporated by reference, relating to the Placement Shares or a security convertible
into the Placement Shares unless a copy thereof has been submitted to Cowen within a reasonable period of time before the filing
and Cowen has not reasonably objected thereto (
provided, however
, that (i) the failure of Cowen to make such objection shall
not relieve the Company of any obligation or liability hereunder, or affect Cowen’s right to rely on the representations
and warranties made by the Company in this Agreement, (ii) the Company has no obligation to provide Cowen any advance copy of such
filing or to provide Cowen an opportunity to object to such filing if the filing does not name Cowen and does not relate to the
transaction herein, and (iii) the only remedy that Cowen shall have with respect to the failure by the Company to provide Cowen
with such copy or the filing of such amendment or supplement despite Cowen’s objection shall be to cease making sales under
this Agreement) and the Company will furnish to Cowen at the time of filing thereof a copy of any document that upon filing is
deemed to be incorporated by reference into the Registration Statement or Prospectus, except for those documents available via
EDGAR; (iv) the Company will cause each amendment or supplement to the Prospectus, other than documents incorporated by reference,
to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act, and (v)
during the term of this Agreement, the Company will notify Cowen if at any time the Registration Statement shall no longer be effective
as a result of the passage of time pursuant to Rule 415 under the Securities Act or otherwise. Prior to the initial sale of any
Placement Shares, the Company shall file a final Prospectus Supplement pursuant to Rule 424(b) relating to the Placement Shares.
(b)
Notice
of Commission Stop Orders
. The Company will advise Cowen, promptly after it receives notice or obtains knowledge thereof, of
the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement,
of the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such a stop order should be issued.
(c)
Delivery
of Prospectus; Subsequent Changes
. During any period in which a Prospectus relating to the Placement Shares is required to
be delivered by Cowen under the Securities Act with respect to a pending sale of the Placement Shares, (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act or similar rule), the Company will comply
with all requirements imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective
due dates (taking into account any extensions available under the Exchange Act) all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision
of or under the Exchange Act. If during such period any event occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend or supplement
the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly notify Cowen to suspend the
offering of Placement Shares during such period and the Company will promptly as practicable amend or supplement the Registration
Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance;
provided, that, the Company may delay the filing of any amendment or supplement, if in the judgment of the Company, it is in the
best interest of the Company, during which time of delay of Cowen shall be under no obligation to make any sales of Placement Shares
hereunder.
(d)
Listing
of Placement Shares
. During any period in which the Prospectus relating to the Placement Shares is required to be delivered
by Cowen under the Securities Act with respect to a pending sale of the Placement Shares (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will use its commercially reasonable efforts
to cause the Placement Shares to be listed on Nasdaq and to qualify the Placement Shares for sale under the securities laws of
such jurisdictions as Cowen reasonably designates and to continue such qualifications in effect so long as required for the distribution
of the Placement Shares;
provided, however,
that the Company shall not be required in connection therewith to qualify as
a foreign corporation or dealer in securities or file a general consent to service of process in any jurisdiction.
(e)
Delivery
of Registration Statement and Prospectus
. The Company will furnish to Cowen and its counsel (at the expense of the Company)
copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments
and supplements to the Registration Statement or Prospectus that are filed with the Commission during any period in which a Prospectus
relating to the Placement Shares is required to be delivered under the Securities Act (including all documents filed with the Commission
during such period that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and
in such quantities as Cowen may from time to time reasonably request and, at Cowen’s request, will also furnish copies of
the Prospectus to each exchange or market on which sales of the Placement Shares may be made;
provided, however,
that the
Company shall not be required to furnish any document (other than the Prospectus) to Cowen to the extent such document is available
on EDGAR.
(f)
Earnings
Statement
. The Company will make generally available to its security holders as soon as practicable, but in any event not later
than 15 months after the end of the Company’s current fiscal quarter, an earnings statement covering a 12-month period that
satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act.
(g)
Expenses
.
The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, in accordance
with the provisions of Section 11 hereunder, will pay the following expenses all incident to the performance of its obligations
hereunder, including, but not limited to, expenses relating to (i) the preparation, printing and filing of the Registration Statement
and each amendment and supplement thereto, and of each Prospectus and of each amendment and supplement thereto, (ii) the preparation,
issuance and delivery of the Placement Shares, (iii) the qualification of the Placement Shares under securities laws in accordance
with the provisions of
Section 7(d)
of this Agreement, including filing fees (provided, however, that any fees or disbursements
of counsel for Cowen in connection therewith shall be paid by Cowen except as set forth in (vii) below), (iv) the printing and
delivery to Cowen of copies of the Prospectus and any amendments or supplements thereto, and of this Agreement, (v) the fees and
expenses incurred in connection with the listing or qualification of the Placement Shares for trading on Nasdaq, (vi) the filing
fees and expenses, if any, of the Commission, (vii) the reasonable fees and disbursements of Cowen’s counsel in an amount
not to exceed $75,000.
(h)
Use of
Proceeds
. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(i)
Notice
of Other Sales
. During the pendency of any Placement Notice given hereunder, and for five (5) Trading Days following the termination
of any Placement Notice given hereunder, the Company shall provide Cowen notice as promptly as reasonably possible before it offers
to sell, contracts to sell, sells, grants any option to sell or otherwise disposes of any Ordinary Shares (other than Placement
Shares offered pursuant to the provisions of this Agreement) or securities convertible into or exchangeable for Ordinary Shares,
warrants or any rights to purchase or acquire Ordinary Shares;
provided
, that such notice shall not be required in connection
with (i) the issuance, grant or sale of Ordinary Shares, options to purchase Ordinary Shares or Ordinary Shares issuable upon the
exercise of options or other equity awards pursuant to any stock option, stock bonus or other stock plan or arrangement described
in the Prospectus, (ii) the issuance of securities in connection with an acquisition, merger or sale or purchase of assets, (iii)
the issuance or sale of Ordinary Shares pursuant to any dividend reinvestment plan that the Company may adopt from time to time
provided the implementation of such is disclosed to Cowen in advance, (iv) the issuance of any Ordinary Shares issuable upon the
exchange, conversion or redemption of securities or the exercise of warrants, options or other rights in effect or outstanding
or (v) Ordinary Shares or securities convertible into or exercisable for Ordinary Shares, offered and sold in a privately negotiated
transaction and not for capital raising purposes to vendors, customers, strategic partners or potential strategic partners and
otherwise conducted in a manner so as not to be integrated with the offering of Ordinary Shares hereby. Notwithstanding the foregoing
provisions, nothing herein shall be construed to restrict the Company’s ability to file a registration statement under the
Securities Act or require notice to Cowen with respect thereto.
(j)
Change
of Circumstances
. The Company will, at any time during the pendency of a Placement Notice, advise Cowen promptly after it shall
have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect
any opinion, certificate, letter or other document provided to Cowen pursuant to this Agreement.
(k)
Due Diligence
Cooperation
. During the term of this Agreement, the Company will reasonably cooperate with any reasonable due diligence review
conducted by Cowen or its agents in connection with the transactions contemplated hereby, including, without limitation, providing
information and making available documents and senior corporate officers, during regular business hours and at the Company’s
principal offices, as Cowen may reasonably request.
(l)
Required
Filings Relating to Placement of Placement Shares
. The Company agrees that on such dates as the Securities Act shall require,
the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under
the Securities Act (each and every filing under Rule 424(b), a “
Filing Date
”), which prospectus supplement
will set forth, within the relevant period, the amount of Placement Shares sold through Cowen, the Net Proceeds to the Company
and the compensation payable by the Company to Cowen with respect to such Placement Shares (provided that the Company may satisfy
this obligation by effecting a filing in accordance with the Exchange Act with respect to such information), 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.
(m)
Representation
Dates; Certificate
. On or prior to the First Delivery Date and each time the Company (i) files the Prospectus relating to the
Placement Shares or amends or supplements the Registration Statement or the Prospectus relating to the Placement Shares (other
than a prospectus supplement filed in accordance with Section 7(l) of this Agreement) by means of a post-effective amendment, sticker,
or supplement but not by means of incorporation of document(s) by reference to the Registration Statement or the Prospectus relating
to the Placement Shares; (ii) files an annual report on Form 10-K under the Exchange Act; (iii) files its quarterly reports on
Form 10-Q under the Exchange Act; or (iv) files a report on Form 8-K containing amended financial information (other than an earnings
release) under the Exchange Act (each date of filing of one or more of the documents referred to in clauses (i) through (iv) shall
be a
“
Representation Date
”
); the Company shall furnish Cowen with a certificate, in the form attached
hereto as
Exhibit 7(m)
within three (3) Trading Days of any Representation Date if requested by Cowen. The requirement to
provide a certificate under this Section 7(m) shall be waived for any Representation Date occurring at a time at which no Placement
Notice is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder
(which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date;
provided
,
however
, that such waiver shall not apply for any Representation Date on which the Company files its annual report on Form
10-K. Notwithstanding the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date
when the Company relied on such waiver and did not provide Cowen with a certificate under this
Section 7(m)
, then before
the Company delivers the Placement Notice or Cowen sells any Placement Shares, the Company shall provide Cowen with a certificate,
in the form attached hereto as
Exhibit 7(m)
, dated the date of the Placement Notice.
(n)
Legal Opinions
.
On or prior to the First Delivery Date and within three (3) Trading Days of each Representation Date with respect to which the
Company is obligated to deliver a certificate in the form attached hereto as
Exhibit 7(m)
for which no waiver is applicable,
the Company shall cause to be furnished to Cowen written opinions of McDermott Will & Emery LLP and Meitar Liquornik Geva Leshem
Tal (“
Company Counsel
”), or other counsel satisfactory to Cowen, in form and substance satisfactory to
Cowen and its counsel, dated the date that the opinions are required to be delivered, respectively, modified, as necessary, to
relate to the Registration Statement and the Prospectus as then amended or supplemented;
provided
,
however
, that
in lieu of such opinions for subsequent Representation Dates, each counsel may furnish Cowen with a letter (a “
Reliance
Letter
”) to the effect that Cowen may rely on a prior opinion delivered under this
Section 7(n)
to the same
extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(o)
Comfort
Letter
. On or prior to the First Delivery Date and within three (3) Trading Days of each Representation Date with respect to
which the Company is obligated to deliver a certificate in the form attached hereto as
Exhibit 7(m)
for which no waiver
is applicable, the Company shall cause its independent accountants to furnish Cowen letters (the
“
Comfort Letters
”
),
dated the date the Comfort Letter is delivered, in form and substance satisfactory to Cowen, (i) confirming that they are an independent
registered public accounting firm within the meaning of the Securities Act and the PCAOB, (ii) stating, as of such date, the conclusions
and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’
“comfort letters” to Cowen in connection with registered public offerings (the first such letter, the
“
Initial
Comfort Letter
”
) and (iii) updating the Initial Comfort Letter with any information that would have been included
in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement
and the Prospectus, as amended and supplemented to the date of such letter.
(p)
Market
Activities
. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes
or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Placement Shares or (ii) sell, bid for, or purchase the Ordinary Shares to be issued and sold
pursuant to this Agreement, or pay anyone any compensation for soliciting purchases of the Placement Shares other than Cowen; provided,
however, that the Company may bid for and purchase ordinary shares in accordance with Rule 10b-18 under the Exchange Act.
(q)
Insurance
.
The Company and its subsidiaries shall maintain, or cause to be maintained, insurance in such amounts and covering such risks as
is reasonable and customary for the business for which it is engaged.
(r)
Compliance
with Laws
. The Company and each of its subsidiaries shall maintain, or cause to be maintained, all material environmental permits,
licenses and other authorizations required by federal, state and local law in order to conduct their businesses as described in
the Prospectus, and the Company and each of its subsidiaries shall conduct their businesses, or cause their businesses to be conducted,
in substantial compliance with such permits, licenses and authorizations and with applicable Environmental Laws, except where the
failure to maintain or be in compliance with such permits, licenses and authorizations could not reasonably be expected to result
in a Material Adverse Effect.
(s)
Investment
Company Act
. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor its subsidiaries
will be or become, at any time prior to the termination of this Agreement, an “investment company,” as such term is
defined in the Investment Company Act, assuming no change in the Commission’s current interpretation as to entities that
are not considered an investment company.
(t)
Securities
Act and Exchange Act
. The Company will use its best efforts to comply with all requirements imposed upon it by the Securities
Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings
in, the Placement Shares as contemplated by the provisions hereof and the Prospectus.
(u)
No Offer
to Sell
. Other than the Prospectus, as supplemented, or a free writing prospectus (as defined in Rule 405 under the Securities
Act) approved in advance by the Company and Cowen in its capacity as principal or agent hereunder, neither Cowen nor the Company
(including its agents and representatives, other than Cowen in its capacity as such) will make, use, prepare, authorize, approve
or refer to any written communication (as defined in Rule 405 under the Securities Act), required to be filed with the Commission,
that constitutes an offer to sell or solicitation of an offer to buy Ordinary Shares hereunder.
(v)
Sarbanes-Oxley
Act
. The Company and its subsidiaries will use their best efforts to comply with all effective applicable provisions of the
Sarbanes-Oxley Act.
(w)
Emerging
Growth Company Status
. The Company will promptly notify Cowen if the Company ceases to be an Emerging Growth Company at any
time prior to December 31, 2020.
8.
Conditions
to Cowen’s Obligations
. The obligations of Cowen hereunder with respect to a Placement Notice will be subject to the
continuing accuracy and completeness of the representations and warranties made by the Company herein, to the due performance by
the Company of its obligations hereunder, to the completion by Cowen of a due diligence review satisfactory to Cowen in its reasonable
judgment, and to the continuing satisfaction (or waiver by Cowen in its sole discretion) of the following additional conditions:
(a)
Registration
Statement Effective
. The Registration Statement shall be effective and shall be available for the sale of all Placement Shares
contemplated to be issued by any Placement Notice.
(b)
No
Material Notices
. None of the following events shall have occurred and be continuing: (i) receipt by the Company or any of
its subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority
during the period of effectiveness of the Registration Statement, the response to which would require any post-effective amendments
or supplements to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or
state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; or (iv) the occurrence of any event that makes any material statement made in the Registration
Statement or the Prospectus or any material document incorporated or deemed to be incorporated therein by reference untrue in any
material respect or that requires the making of any changes in the Registration Statement, related Prospectus or such documents
so that, in the case of the Registration Statement, it will not contain any materially untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in
the case of the Prospectus, it will not contain any materially untrue statement of a material fact or omit to state any 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.
(c)
No
Misstatement or Material Omission
. Cowen shall not have advised the Company that the Registration Statement or Prospectus,
or any amendment or supplement thereto, contains an untrue statement of fact that in Cowen’s reasonable opinion is material,
or omits to state a fact that in Cowen’s opinion is material and is required to be stated therein or is necessary to make
the statements therein not misleading.
(d)
Material
Changes
. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there
shall not have been any material adverse change, on a consolidated basis, in the authorized capital stock of the Company or any
Material Adverse Effect or any development that could reasonably be expected to result in a Material Adverse Effect, or any downgrading
in or withdrawal of the rating assigned to any of the Company’s securities (other than asset backed securities) by any rating
organization or a public announcement by any rating organization that it has under surveillance or review its rating of any of
the Company’s securities (other than asset backed securities), the effect of which, in the case of any such action by a rating
organization described above, in the reasonable judgment of Cowen (without relieving the Company of any obligation or liability
it may otherwise have), is so material as to make it impracticable or inadvisable to proceed with the offering of the Placement
Shares on the terms and in the manner contemplated in the Prospectus.
(e)
Company
Counsel Legal Opinions
. Cowen shall have received the opinions of Company Counsel required to be delivered pursuant to
Section
7(n)
on or before the date on which such delivery of such opinions are required pursuant to
Section 7(n)
.
(f)
Cowen
Counsel Legal Opinion
. Cowen shall have received from Cooley LLP, counsel for Cowen, such opinion or opinions, on or before
the date on which the delivery of the Company Counsel legal opinions is required pursuant to
Section 7(n)
, with respect
to such matters as Cowen may reasonably require, and the Company shall have furnished to such counsel such documents as they request
for enabling them to pass upon such matters.
(g)
Comfort
Letter
. Cowen shall have received the Comfort Letter required to be delivered pursuant to
Section 7(o)
on or before
the date on which such delivery of such Comfort Letter is required pursuant to
Section 7(o)
.
(h)
Representation
Certificate
. Cowen shall have received the certificate required to be delivered pursuant to
Section 7(m)
on or
before the date on which delivery of such certificate is required pursuant to
Section 7(m)
.
(i)
Secretary’s
Certificate
. On or prior to the First Delivery Date, Cowen shall have received a certificate, signed on behalf of the Company
by its corporate Secretary, in form and substance satisfactory to Cowen and its counsel.
(j)
No
Suspension
. Trading in the Ordinary Shares shall not have been suspended on Nasdaq.
(k)
Other
Materials
. On each date on which the Company is required to deliver a certificate pursuant to
Section 7(m)
, the Company
shall have furnished to Cowen such appropriate further information, certificates and documents as Cowen may have reasonably requested.
All such opinions, certificates, letters and other documents shall have been in compliance with the provisions hereof. The Company
will furnish Cowen with such conformed copies of such opinions, certificates, letters and other documents as Cowen shall have reasonably
requested.
(l)
Securities
Act Filings Made
. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to
the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing
by Rule 424.
(m)
Approval
for Listing
. The Placement Shares shall either have been (i) approved for listing on Nasdaq, subject only to notice of issuance,
or (ii) the Company shall have filed an application for listing of the Placement Shares on Nasdaq at, or prior to, the issuance
of any Placement Notice.
(n)
No
Termination Event
. There shall not have occurred any event that would permit Cowen to terminate this Agreement pursuant to
Section 11(a)
.
(o)
IIA
Consent
. The Company shall have received the consent of the IIA in connection with the offering of the Placement Shares.
9.
Indemnification
and Contribution
.
(a)
Company
Indemnification
. The Company agrees to indemnify and hold harmless Cowen, the directors, officers, partners, employees and
agents of Cowen and each person, if any, who (i) controls Cowen within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, or (ii) is controlled by or is under common control with Cowen (a “
Cowen Affiliate
”)
from and against any and all losses, claims, liabilities, expenses and damages (including, but not limited to, any and all reasonable
investigative, legal and other expenses incurred in connection with, and any and all amounts paid in settlement (in accordance
with
Section 9(c)
) of, any action, suit or proceeding between any of the indemnified parties and any indemnifying parties
or between any indemnified party and any third party, or otherwise, or any claim asserted), as and when incurred, to which Cowen,
or any such person, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages arise out of or are based, directly
or indirectly, on (x) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement
or the Prospectus or any amendment or supplement to the Registration Statement or the Prospectus or in any free writing prospectus
or in any application or other document executed by or on behalf of the Company or based on written information furnished by or
on behalf of the Company filed in any jurisdiction in order to qualify the Placement Shares under the securities laws thereof or
filed with the Commission, or (y) the omission or alleged omission to state in any such document a material fact required to be
stated in it or necessary to make the statements in it not misleading;
provided
,
however
, that this indemnity agreement
shall not apply to the extent that such loss, claim, liability, expense or damage arises from the sale of the Placement Shares
pursuant to this Agreement and is caused directly or indirectly by an untrue statement or omission made in reliance upon and in
conformity with the Agent’s Information. This indemnity agreement will be in addition to any liability that the Company might
otherwise have.
(b)
Cowen
Indemnification
. Cowen agrees to indemnify and hold harmless the Company and its directors and each officer of the Company
that signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the
indemnity contained in
Section 9(a)
, as incurred, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendments thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with the Agent’s Information.
(c)
Procedure
.
Any party that proposes to assert the right to be indemnified under this
Section 9
will, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties
under this
Section 9
, notify in writing each such indemnifying party of the commencement of such action, enclosing a copy
of all papers served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any
liability that it might have to any indemnified party otherwise than under this
Section 9
and (ii) any liability that it
may have to any indemnified party under the foregoing provision of this
Section 9
unless, and only to the extent that, such
omission results in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought against
any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate
in and, to the extent that it elects by delivering written notice to the indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume
the defense of the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying
party to the indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified
party for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently
incurred by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel
in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict
exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which
case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party) or
(4) the indemnifying party has not in fact employed counsel to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges
of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or parties
shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all
such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying party
after they are incurred but no later than 30 days after the indemnifying party’s receipt of a written invoice of such expenses
detailing such fees, disbursements and other charges. An indemnifying party will not, in any event, be liable for any settlement
of any action or claim effected without its written consent. No indemnifying party shall, without the prior written consent of
each indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action
or proceeding relating to the matters contemplated by this
Section 9
(whether or not any indemnified party is a party thereto),
unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising
or that may arise out of such claim, action or proceeding.
(d)
Contribution
.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing
paragraphs of this
Section 9
is applicable in accordance with its terms but for any reason is held to be unavailable from
the Company or Cowen, the Company and Cowen will contribute to the total losses, claims, liabilities, expenses and damages (including
any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, but after deducting any contribution received by the Company from persons other than
Cowen, such as persons who control the Company within the meaning of the Securities Act, officers of the Company who signed the
Registration Statement and directors of the Company, who also may be liable for contribution) to which the Company and Cowen may
be subject in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand
and Cowen on the other. The relative benefits received by the Company on the one hand and Cowen on the other hand shall be deemed
to be in the same proportion as the total Net Proceeds from the sale of the Placement Shares (before deducting expenses) received
by the Company bear to the total compensation received by Cowen from the sale of Placement Shares on behalf of the Company. If,
but only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution
shall be made in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence
but also the relative fault of the Company, on the one hand, and Cowen, on the other, with respect to the statements or omission
that resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitable
considerations with respect to such offering. Such relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company or Cowen, the intent of the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and Cowen agree that it would not be just and equitable if contributions
pursuant to this
Section 9(d)
were to be determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred to above in this
Section 9(d)
shall be deemed to include, for the purpose of this
Section 9(d)
, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim to the extent consistent with
Section
9(c)
hereof. Notwithstanding the foregoing provisions of this
Section 9(d)
, Cowen shall not be required to contribute
any amount in excess of the commissions received by it under this Agreement and no person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this
Section 9(d)
, any person who controls a party to this Agreement
within the meaning of the Securities Act, and any officers, directors, partners, employees or agents of Cowen, will have the same
rights to contribution as that party, and each director of the Company and each officer of the Company who signed the Registration
Statement will have the same rights to contribution as the Company, subject in each case to the provisions hereof. Any party entitled
to contribution, promptly after receipt of notice of commencement of any action against such party in respect of which a claim
for contribution may be made under this
Section 9(d)
, will notify any such party or parties from whom contribution may be
sought, but the omission to so notify will not relieve that party or parties from whom contribution may be sought from any other
obligation it or they may have under this
Section 9(d)
except to the extent that the failure to so notify such other party
materially prejudiced the substantive rights or defenses of the party from whom contribution is sought. Except for a settlement
entered into pursuant to the last sentence of
Section 9(c)
hereof, no party will be liable for contribution with respect
to any action or claim settled without its written consent if such consent is required pursuant to
Section 9(c)
hereof.
10.
Representations
and Agreements to Survive Delivery
. The indemnity and contribution agreements contained in
Section 9
of this Agreement
and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of
their respective dates, regardless of (i) any investigation made by or on behalf of Cowen, any controlling persons, or the Company
(or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance of the Placement Shares and
payment therefor or (iii) any termination of this Agreement.
11.
Termination.
(a) Cowen
shall have the right by giving written notice as hereinafter specified at any time to terminate this 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 reasonable judgment of Cowen, may materially impair the ability of Cowen 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
Sections 7(m)
,
7(n)
, or
7(o)
, Cowen’s right to terminate shall not arise unless
such failure to deliver (or cause to be delivered) continues for more than thirty (30) days from the date such delivery was required;
or (iii) any other condition of Cowen’s obligations hereunder is not fulfilled, or (iv) any suspension or limitation
of trading in the Placement Shares or in securities generally on Nasdaq shall have occurred. Any such termination shall be without
liability of any party to any other party except that the provisions of
Section 7(g)
(Expenses),
Section 9
(Indemnification
and Contribution),
Section 10
(Representations and Agreements to Survive Delivery),
Section 16
(Applicable Law; Consent
to Jurisdiction),
Section 17
(Waiver of Jury Trial) and
Section 18
(Judgement Currency) hereof shall remain in full
force and effect notwithstanding such termination. If Cowen elects to terminate this Agreement as provided in this
Section 11(a)
,
Cowen shall provide the required notice as specified in
Section 12
(Notices).
(b) The Company
shall have the right, by giving five (5) days notice as hereinafter specified to terminate this Agreement in its 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 7(g)
,
Section 9
,
Section 10
,
Section
16
,
Section 17
and
Section 18
hereof shall remain in full force and effect notwithstanding such termination.
(c) Cowen
shall have the right, by giving five (5) days notice as hereinafter specified to terminate this Agreement in its 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 7(g)
,
Section 9
,
Section 10
,
Section
16
,
Section 17
and
Section 18
hereof shall remain in full force and effect notwithstanding such termination.
(d) Unless
earlier terminated pursuant to this
Section 11
, this Agreement shall automatically terminate upon the issuance and sale
of all of the Placement Shares through Cowen on the terms and subject to the conditions set forth herein;
provided
that
the provisions of
Section 7(g)
,
Section 9
,
Section 10
,
Section 16
,
Section 17
and
Section
18
hereof shall remain in full force and effect notwithstanding such termination.
(e) This Agreement
shall remain in full force and effect unless terminated pursuant to
Sections 11(a)
,
(b)
,
(c), or (d)
above
or otherwise by mutual agreement of the parties;
provided, however,
that any such termination by mutual agreement shall
in all cases be deemed to provide that
Section 7(g)
,
Section 9
,
Section 10
,
Section 16
,
Section
17
and
Section 18
shall remain in full force and effect.
(f) Any termination
of this Agreement shall be effective on the date specified in such notice of termination;
provided, however,
that such termination
shall not be effective until the close of business on the date of receipt of such notice by Cowen or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares shall
settle in accordance with the provisions of this Agreement.
12.
Notices
.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of
this Agreement shall be in writing, unless otherwise specified in this Agreement, and if sent to Cowen, shall be delivered to Cowen
at Cowen and Company, LLC, 599 Lexington Avenue, New York, NY 10022, fax no. 646-562-1124, Attention: General Counsel, with a copy
to Cooley LLP, 1114 Avenue of the Americas, New York, NY 10036, fax no. (212) 479-6275, Attention: Daniel I. Goldberg; or if sent
to the Company, shall be delivered to Intec Pharma Ltd., 12 Hartom St., Har Hotzvim, Jerusalem, Israel fax no. 972-77-4701797,
attention: Nir Sassi with a copy to McDermott Will & Emery LLP 340 Madison Avenue, New York, NY 10173-1922, fax no. 212 547
5444, attention: Gary Emmanuel. Each party to this Agreement may change such address for notices by sending to the parties to this
Agreement written notice of a new address for such purpose. Each such notice or other communication shall be deemed given (i) when
delivered personally or by verifiable facsimile transmission (with an original to follow) on or before 4:30 p.m., New York City
time, on a Business Day (as defined below), or, if such day is not a Business Day on the next succeeding Business Day, (ii) on
the next Business Day after timely delivery to a nationally-recognized overnight courier, (iii) on the Business Day actually received
if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid) and (iv) when delivered
by electronic communication (“
Electronic Notice
”), at the time the party sending Electronic Notice receives
written verification of receipt by the receiving party, other than via auto reply. For purposes of this Agreement, “
Business
Day
” shall mean any day on which the Nasdaq and commercial banks in the City of New York are open for business.
13.
Successors
and Assigns
. This Agreement shall inure to the benefit of and be binding upon the Company and Cowen and their respective successors
and the affiliates, controlling persons, officers and directors referred to in
Section 9
hereof. References to any of the
parties contained in this Agreement shall be deemed to include the successors and permitted assigns of such party. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors
and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement. Neither party may assign its rights or obligations under this Agreement without the prior written consent
of the other party;
provided
,
however
, that Cowen may assign its rights and obligations hereunder to an affiliate
of Cowen without obtaining the Company’s consent.
14.
Adjustments
for Share Splits
. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted
to take into account any share split, share dividend or similar event effected with respect to the Ordinary Shares.
15.
Entire
Agreement; Amendment; Severability
. This Agreement (including all schedules and exhibits attached hereto and Placement Notices
issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings,
both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor any term hereof
may be amended except pursuant to a written instrument executed by the Company and Cowen. In the event that any one or more of
the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written
by a court of competent jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that
it is valid, legal and enforceable, and the remainder of the terms and provisions herein shall be construed as if such invalid,
illegal or unenforceable term or provision was not contained herein, but only to the extent that giving effect to such provision
and the remainder of the terms and provisions hereof shall be in accordance with the intent of the parties as reflected in this
Agreement.
16.
Applicable
Law; Consent to Jurisdiction
. This Agreement shall be governed by and construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be performed in such state. Any legal suit, action or proceeding arising
out of or based upon this Agreement or the transactions contemplated hereby (“
Related Proceedings
”) may
be instituted in the federal courts of the United States of America located in the Borough of Manhattan in the City of New York
or the courts of the State of New York in each case located in the Borough of Manhattan in the City of New York (collectively,
the “
Specified Courts
”), and each party irrevocably submits to the exclusive jurisdiction (except for
proceedings instituted in regard to the enforcement of a judgment of any such court (a “Related Judgment”), as to which
such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice
or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or
other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue
of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead
or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient
forum. The Company has irrevocably appointed Intec Pharma, Inc., which currently maintains an office at 3 Columbus Circle, 15
th
Floor, New York, New York 10019, United States of America, as its agent to receive service of process or other legal summons for
purposes of any such suit, action or proceeding that may be instituted in any state or federal court in the Borough of Manhattan
in the City of New York, United States of America. With respect to any Related Proceeding, each party irrevocably waives, to the
fullest extent permitted by applicable law, all immunity (whether on the basis of sovereignty or otherwise) from jurisdiction,
service of process, attachment (both before and after judgment) and execution to which it might otherwise be entitled in the Specified
Courts, and with respect to any Related Judgment, each party waives any such immunity in the Specified Courts or any other court
of competent jurisdiction, and will not raise or claim or cause to be pleaded any such immunity at or in respect of any such Related
Proceeding or Related Judgment, including, without limitation, any immunity pursuant to the United States Foreign Sovereign Immunities
Act of 1976, as amended.
17.
Waiver
of Jury Trial
. The Company and Cowen each hereby irrevocably waives any right it may have to a trial by jury in respect of
any claim based upon or arising out of this Agreement or any transaction contemplated hereby.
18.
Judgement
Currency.
The obligations of the Company pursuant to this Agreement in respect of any sum due to the Cowen shall, notwithstanding
any judgment in a currency other than United States dollars, not be discharged until the first business day, following receipt
by Cowen of any sum adjudged to be so due in such other currency, on which Cowen may in accordance with normal banking procedures
purchase United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally
due to Cowen in United States dollars hereunder, the Company agrees as a separate obligation and notwithstanding any such judgment,
to indemnify Cowen against such loss. If the United States dollars so purchased are greater than the sum originally due to Cowen
hereunder, Cowen agrees to pay to the Company an amount equal to the excess of the dollars so purchased over the sum originally
due to Cowen hereunder. All payments made or deemed to be made by the Company under this Agreement, if any, will be made without
withholding or deduction for or on account of any present or future taxes, duties, assessments or governmental charges of whatever
nature (other than taxes on net income) imposed or levied by or on behalf of the State of Israel, any other jurisdiction from or
through which payment is made, or, in each case, any political subdivision or any taxing authority thereof or therein unless the
Company is or becomes required by law to withhold or deduct such taxes, duties, assessments or other governmental charges. In such
event, the Company will pay such additional amounts as will result, after such withholding or deduction, in the receipt Cowen,
its officers and employees and each person controlling Cowen, as the case may be, of the amounts that would otherwise have been
receivable in respect thereof.
19.
Absence
of Fiduciary Relationship
.
The Company acknowledges and agrees that:
(a) Cowen
has been retained solely to act as sales agent in connection with the sale of the Placement Shares and that no fiduciary, advisory
or agency relationship between the Company and Cowen has been created in respect of any of the transactions contemplated by this
Agreement, irrespective of whether Cowen has advised or is advising the Company on other matters;
(b) the Company
is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated
by this Agreement;
(c) the Company
has been advised that Cowen and its affiliates are engaged in a broad range of transactions which may involve interests that differ
from those of the Company and that Cowen has no obligation to disclose such interests and transactions to the Company by virtue
of any fiduciary, advisory or agency relationship; and
(d) the Company
waives, to the fullest extent permitted by law, any claims it may have against Cowen, for breach of fiduciary duty or alleged breach
of fiduciary duty and agrees that Cowen shall have no liability (whether direct or indirect) to the Company in respect of such
a fiduciary claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders,
partners, employees or creditors of the Company.
20.
Counterparts
.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile
transmission or other means of electronic transmission.
21.
Definitions
.
As used in this Agreement, the following term has the meaning set forth below:
(a) “
Agent’s
Information”
means, solely the following information in the Prospectus: the third sentence of the eighth paragraph under
the caption “Plan of Distribution” in the Prospectus.
(b) “
Governmental
Authority
” means (i) any federal, provincial, state, local, municipal, national or international government or governmental
authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality,
court, tribunal, arbitrator or arbitral body (public or private); (ii) any self-regulatory organization; or (iii) any political
subdivision of any of the foregoing.
[Remainder of Page Intentionally Blank]
If the foregoing correctly
sets forth the understanding between the Company and Cowen, please so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the Company and Cowen.
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Very truly yours,
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COWEN AND COMPANY, LLC
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By:
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/s/ Michael Murphy
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Name: Michael Murphy
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Title: Managing Director
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ACCEPTED as of the date
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first-above written:
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INTEC PHARMA LTD.
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By:
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/s/ Nir Sassi
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Name:
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Nir Sassi
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Title:
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Chief Financial Officer
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SCHEDULE 1
form
of PLACEMENT NOTICE
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From:
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[ ]
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Cc:
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[ ]
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To:
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[ ]
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Subject:
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Cowen at the Market Offering—Placement Notice
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Gentlemen:
Pursuant to the terms
and subject to the conditions contained in the Sales Agreement between Intec Pharma Ltd. (the “
Company
”), and
Cowen and Company, LLC (“
Cowen
”) dated [ ] (the “
Agreement
”), I hereby request on behalf
of the Company that Cowen sell up to [ ] of the Company’s ordinary shares, no par value per share, at a minimum market price
of $_______ per share. Sales should begin on the date of this Notice and shall continue until [DATE] [all shares are sold].
SCHEDULE 2
Placement Notice Individuals
The Company
Jeffrey Meckler, Chief Executive Officer
Nir Sassi, Chief Financial Officer
Cowen and Company, LLC
Michael Murphy
Sam Herzig
Bill Follis
SCHEDULE 3
Compensation
Cowen shall be paid compensation equal to
3.0 % of the gross proceeds from the sales of Ordinary Shares pursuant to the terms of this Agreement.
Exhibit 7(m)
OFFICER CERTIFICATE
The undersigned, the duly qualified and
elected _______________________, of Intec Pharma Ltd., a company organized and existing under the laws of the State of Israel,
public company number 513022780 (the “
Company
”), does hereby certify in such capacity and on behalf of
the Company, pursuant to
Section 7(m)
of the Sales Agreement dated February [__], 2019 (the “
Sales Agreement
”)
between the Company and Cowen and Company, LLC, that to the best of the knowledge of the undersigned.
(i) The
representations and warranties of the Company in
Section 6
of the Sales Agreement (A) to the extent such representations
and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect,
are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof,
except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such
date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and
correct in all material respects as of the date hereof as if made on and as of the date hereof with the same force and effect as
if expressly made on and as of the date hereof except for those representations and warranties that speak solely as of a specific
date and which were true and correct as of such date; and
(ii) The
Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the
Sales Agreement at or prior to the date hereof.
Date:________________________
Exhibit 4.5
INTEC PHARMA LTD.
TO
[_______________________],
as Trustee
GUARANTEED TO THE EXTENT SET FORTH HEREIN
BY THE GUARANTORS NAMED HEREIN
INDENTURE
Dated as of [_____________], 20[__]
SENIOR DEBT SECURITIES
TABLE OF CONTENTS
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Page
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Article One Definitions and Other Provisions of General Application
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1
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Section 101
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Definitions
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1
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Section 102
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Compliance Certificates and Opinions
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10
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Section 103
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Form of Documents Delivered to Trustee
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10
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Section 104
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Acts of Holders
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11
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Section 105
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Notices, etc., to the Trustee and Company
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13
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Section 106
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Notice to Holders; Waiver
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13
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Section 107
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Effect of Headings and Table of Contents
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14
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Section 108
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Successors and Assigns
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14
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Section 109
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Separability Clause
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14
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Section 110
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Benefits of Indenture
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14
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Section 111
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No Personal Liability
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14
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Section 112
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Governing Law
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15
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Section 113
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Legal Holidays
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15
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Section 114
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Waiver of Jury Trial
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15
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Section 115
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Counterparts
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15
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Section 116
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Force Majeure
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16
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Article Two Securities Forms
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16
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Section 201
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Forms of Securities
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16
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Section 202
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Form of Trustee’s Certificate of Authentication
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16
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Section 203
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Securities Issuable in Global Form
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17
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Section 204
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CUSIP, CINS or ISIN Numbers
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18
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Article Three The Securities
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18
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Section 301
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Amount Unlimited; Issuable in Series
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18
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Section 302
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Denominations
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22
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Section 303
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Execution, Authentication, Delivery and Dating
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22
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Section 304
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Temporary Securities
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24
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Section 305
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Registration, Registration of Transfer and Exchange
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26
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Section 306
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Mutilated, Destroyed, Lost and Stolen Securities
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30
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Section 307
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Payment of Interest; Interest Rights Preserved
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31
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Section 308
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Persons Deemed Owners
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33
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Section 309
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Cancellation
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33
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Section 310
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Computation of Interest
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34
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Article Four Satisfaction and Discharge
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34
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Section 401
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Satisfaction and Discharge of Indenture
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34
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Section 402
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Application of Trust Fund
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35
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Article Five Remedies
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36
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Section 501
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Events of Default
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36
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Section 502
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Acceleration of Maturity; Rescission and Annulment
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38
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Section 503
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Collection of Indebtedness and Suits for Enforcement by Trustee
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39
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Section 504
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Trustee May File Proofs of Claim
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39
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Section 505
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Trustee May Enforce Claims Without Possession of Securities or Coupons
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40
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Section 506
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Application of Money Collected
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40
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Section 507
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Limitation on Suits
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41
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Section 508
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Unconditional Right of Holders to Receive Principal, Premium or Make-Whole Amount, if any, Interest and Additional Amounts
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42
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Section 509
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Restoration of Rights and Remedies
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42
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Section 510
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Rights and Remedies Cumulative
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42
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Section 511
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Delay or Omission Not Waiver
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42
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Section 512
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Control by Holders of Securities
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43
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Section 513
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Waiver of Past Defaults
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43
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Section 514
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Waiver of Stay or Extension Laws
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44
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Section 515
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Undertaking for Costs
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44
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Article Six The Trustee
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44
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Section 601
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Notice of Defaults
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44
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Section 602
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Certain Rights of Trustee
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45
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Section 603
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Not Responsible for Recitals or Issuance of Securities
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46
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Section 604
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May Hold Securities
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47
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Section 605
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Money Held in Trust
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47
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Section 606
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Compensation and Reimbursement
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47
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Section 607
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Corporate Trustee Required; Eligibility; Conflicting Interests
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48
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Section 608
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Resignation and Removal; Appointment of Successor
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48
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Section 609
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Acceptance of Appointment By Successor
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49
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Section 610
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Merger, Conversion, Consolidation or Succession to Business
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50
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Section 611
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Appointment of Authenticating Agent
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51
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Article Seven Holders’ Lists and Reports by Trustee and Company
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53
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Section 701
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Disclosure of Names and Addresses of Holders
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53
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Section 702
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Reports by Trustee
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53
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Section 703
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Reports by Company
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53
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Section 704
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Company to Furnish Trustee Names and Addresses of Holders
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54
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Article Eight Consolidation, Merger, Sale, Lease or Conveyance
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55
|
|
|
|
|
|
Section 801
|
Consolidations and Mergers of Company and Sales, Leases and Conveyances Permitted Subject to Certain Conditions
|
55
|
|
Section 802
|
Rights and Duties of Successor Corporation
|
55
|
|
Section 803
|
Officers’ Certificate and Opinion of Counsel
|
56
|
|
|
|
|
|
Article Nine Supplemental Indentures
|
56
|
|
|
|
|
|
Section 901
|
Supplemental Indentures Without Consent of Holders
|
56
|
|
Section 902
|
Supplemental Indentures With Consent of Holders
|
58
|
|
Section 903
|
Execution of Supplemental Indentures
|
59
|
|
Section 904
|
Effect of Supplemental Indentures
|
59
|
|
Section 905
|
Conformity with Trust Indenture Act
|
59
|
|
Section 906
|
Reference in Securities to Supplemental Indentures
|
59
|
|
Section 907
|
Notice of Supplemental Indentures
|
60
|
|
|
|
|
|
Article Ten Covenants
|
60
|
|
|
|
|
|
Section 1001
|
Payment of Principal, Premium or Make-Whole Amount, if any, Interest and Additional Amounts
|
60
|
|
Section 1002
|
Maintenance of Office or Agency
|
60
|
|
Section 1003
|
Money for Securities Payments to Be Held in Trust
|
62
|
|
Section 1004
|
(Omitted)
|
63
|
|
Section 1005
|
Provision of Financial Information
|
63
|
|
Section 1006
|
Statement as to Compliance
|
64
|
|
Section 1007
|
Additional Amounts
|
64
|
|
Section 1008
|
Waiver of Certain Covenants
|
65
|
|
|
|
|
|
Article Eleven Redemption of Securities
|
65
|
|
|
|
|
|
Section 1101
|
Applicability of Article
|
65
|
|
Section 1102
|
Election to Redeem; Notice to Trustee
|
65
|
|
Section 1103
|
Selection by Trustee of Securities to Be Redeemed
|
66
|
|
Section 1104
|
Notice of Redemption
|
66
|
|
Section 1105
|
Deposit of Redemption Price
|
67
|
|
Section 1106
|
Securities Payable on Redemption Date
|
68
|
|
Section 1107
|
Securities Redeemed in Part
|
69
|
|
|
|
|
|
Article Twelve Sinking Funds
|
69
|
|
|
|
|
|
Section 1201
|
Applicability of Article
|
69
|
|
Section 1202
|
Satisfaction of Sinking Fund Payments with Securities
|
69
|
|
Section 1203
|
Redemption of Securities for Sinking Fund
|
70
|
|
|
|
|
|
Article Thirteen Repayment at the Option of Holders
|
70
|
|
|
|
|
|
Section 1301
|
Applicability of Article
|
70
|
|
Section 1302
|
Repayment of Securities
|
70
|
|
Section 1303
|
Exercise of Option
|
71
|
|
Section 1304
|
When Securities Presented for Repayment Become Due and Payable
|
71
|
|
Section 1305
|
Securities Repaid in Part
|
72
|
|
|
|
|
|
Article Fourteen Defeasance and Covenant Defeasance
|
72
|
|
|
|
|
|
Section 1401
|
Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance
|
72
|
|
Section 1402
|
Defeasance and Discharge
|
73
|
|
Section 1403
|
Covenant Defeasance
|
73
|
|
Section 1404
|
Conditions to Defeasance or Covenant Defeasance
|
74
|
|
Section 1405
|
Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions
|
75
|
|
Section 1406
|
Reinstatement
|
76
|
|
|
|
|
|
Article Fifteen Meetings of Holders of Securities
|
77
|
|
|
|
|
|
Section 1501
|
Purposes for Which Meetings May Be Called
|
77
|
|
Section 1502
|
Call, Notice and Place of Meetings
|
77
|
|
Section 1503
|
Persons Entitled to Vote at Meetings
|
77
|
|
Section 1504
|
Quorum; Action
|
78
|
|
Section 1505
|
Determination of Voting Rights; Conduct and Adjournment of Meetings
|
79
|
|
Section 1506
|
Counting Votes and Recording Action of Meetings
|
80
|
|
Section 1507
|
Evidence of Action Taken by Holders
|
80
|
|
Section 1508
|
Proof of Execution of Instruments
|
80
|
|
|
|
|
|
Article Sixteen Conversion or Exchange of Securities
|
80
|
|
|
|
|
|
Section 1601
|
Applicability of Article
|
80
|
|
Section 1602
|
Election to Exchange; Notice to Trustee and Holders
|
80
|
|
Section 1603
|
No Fractional Shares
|
81
|
|
Section 1604
|
Adjustment of Conversion Rate or Exchange Rate
|
81
|
|
Section 1605
|
Payment of Certain Taxes Upon Exchange
|
82
|
|
Section 1606
|
Shares Free and Clear
|
82
|
|
Section 1607
|
Cancellation of Security
|
82
|
|
Section 1608
|
Duties of Trustee Regarding Exchange and Conversion
|
82
|
|
Section 1609
|
Repayment of Certain Funds Upon Exchange or Conversion
|
83
|
|
Section 1610
|
Exercise of Conversion or Exchange Privilege
|
83
|
|
Section 1611
|
Effect of Consolidation or Merger on Exchange or Conversion Privilege
|
84
|
|
|
|
|
|
Article Seventeen Guarantees
|
85
|
|
|
|
|
|
Section 1701
|
Guarantee
|
85
|
Testimonium
Signatures and Seals
Acknowledgements
Exhibit A - Forms of Certification
Reconciliation and tie
between Trust Indenture Act of 1939, as amended (the “
TIA
”), and Indenture, dated as of [____________], 20[__].
|
Trust
Indenture Act Section
|
|
Indenture
Section
|
|
Section 310(a)(1)
|
|
607
|
|
(a)(2)
|
|
607
|
|
(b)
|
|
608
|
|
Section 312(c)
|
|
701
|
|
Section 314(a)
|
|
703
|
|
(a)(4)
|
|
1006
|
|
(c)(1)
|
|
102
|
|
(c)(2)
|
|
102
|
|
(e)
|
|
102
|
|
Section 315(b)
|
|
601
|
|
Section 316(a) (last sentence)
|
|
101 (“
Outstanding
”)
|
|
(a)(1)(A)
|
|
502, 512
|
|
Trust
Indenture Act Section
|
|
Indenture
Section
|
|
(a)(1)(B)
|
|
513
|
|
(b)
|
|
508
|
|
Section 317(a)(1)
|
|
503
|
|
(a)(2)
|
|
504
|
|
Section 318(a)
|
|
112
|
|
(c)
|
|
112
|
Note: This reconciliation
and tie shall not, for any purpose, be deemed to be a part of the Indenture.
Attention should also be
directed to Section 318(c) of the TIA, which provides that the provisions of Sections 310 to and including Section 317 of the TIA
are a part of and govern every qualified indenture, whether or not physically contained therein.
INDENTURE
INDENTURE
, dated
as of [_____________], 20[__], by and between INTEC PHARMA LTD., a corporation organized under the laws of the State of Israel
(hereinafter called the “
Company
”), the guarantors listed on Schedule I hereto, as such schedule may be amended
from time to time (the “
Guarantors
”), and [_______________], as Trustee hereunder (hereinafter called the “
Trustee
”).
RECITALS OF THE COMPANY
The Company deems it necessary
to issue from time to time for its lawful purposes senior debt securities (hereinafter called the “
Securities
”)
evidencing its unsecured and unsubordinated indebtedness, and has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of one or more series of Securities, unlimited as to principal amount, to bear interest
at the rates or formulas, to mature at such times and to have such other provisions as shall be fixed therefor as hereinafter provided.
This Indenture is subject
to the provisions of the Trust Indenture Act of 1939, as amended, that are required to be part of this Indenture, and shall be
governed by such provisions; provided that if any provision of this Indenture modifies any TIA (as defined herein) provision that
may be so modified, such TIA provision shall be deemed to apply to this Indenture as so modified; provided further that if any
provision of this Indenture excludes any TIA provision that may be so excluded, such TIA provision shall be excluded from this
Indenture.
All things necessary to
make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS
INDENTURE WITNESSETH:
For and in consideration
of the premises and the purchase of the Securities by the Holders (as defined herein) thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities or a series thereof and any coupons, as follows:
Article One
Definitions and Other Provisions of General application
Section 101
Definitions
.
For all purposes of this
Indenture, except as otherwise expressly provided or the context otherwise requires:
(a) the
terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;
(b) all
other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms “
cash transaction
” and “
self-liquidating paper,
”
as used in Trust Indenture Act Section 311, shall have the meanings assigned to them in the rules of the Commission adopted under
the Trust Indenture Act;
(c) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP; and
(d) the
words “
herein,
” “
hereof
” and “
hereunder
” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally
in
Article Three
,
Article Five
,
Article Six
and
Article Ten
, are defined in those
Articles. In addition, the following terms shall have the indicated respective meanings:
“
Act
”,
when used with respect to any Holder, has the meaning specified in
Section 104
.
“
Additional Amounts
”
means any additional amounts which are required by a Security, under circumstances specified therein, to be paid by the Company
in respect of certain taxes imposed on certain Holders and which are owing to such Holders.
“
Affiliate
”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition, “
control
” when used with respect
to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “
controlling
” and “
controlled
”
have meanings correlative to the foregoing.
“
Authenticating
Agent
” means any authenticating agent appointed by the Trustee to act on behalf of the Trustee pursuant to
Section 611
.
“
Authorized Newspaper
”
means a newspaper, printed in the English language or in an official language of the country of publication, customarily published
on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in each place in connection
with which the term is used or in the financial community of each such place. Whenever successive publications are required to
be made in Authorized Newspapers, the successive publications may be made in the same or in different Authorized Newspapers in
the same city meeting the foregoing requirements and in each case on any Business Day.
“
Bankruptcy Law
”
has the meaning specified in
Section 501
.
“
Bearer Security
”
means a Security which is payable to bearer.
“
Board of Directors
”
means either (i) the Board of Directors of the Company, the executive committee or any other committee or director of that board
duly authorized to act for it in respect hereof, or (ii) one or more duly authorized officers of the Company to whom the Board
of Directors of the Company or a committee thereof has delegated the authority to act with respect to the matters contemplated
by this Indenture.
“
Board Resolution
”
means (i) a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors or a committee thereof, and to be in full force and effect on the date of such certification, and delivered
to the Trustee or (ii) a certificate signed by the authorized officer or officers of the Company to whom the Board of Directors
of the Company or a committee thereof has delegated its authority (as described in the definition of Board of Directors), and in
each case, delivered to the Trustee.
“
Business Day
”
when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301
, any day, other than a Saturday
or Sunday, that is not (i) a legal holiday or a day on which banking institutions in that Place of Payment or particular location
are authorized or required by law, regulation or executive order to close, or (ii) a day on which the Corporate Trust Office of
the Trustee is closed for business.
“
Capital Stock
”
means, with respect to any Person, any capital stock (including preferred stock), shares, interest, participations or other ownership
interests (however designated) of such Person and any rights (other than debt securities convertible into or exchangeable for corporate
stock), warrants or options to purchase any thereof.
“
Clearstream
”
means Clearstream Banking, S.A., Luxembourg, or its successor.
“
Commission
”
means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at
any time after execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the
TIA, then the body performing such duties on such date.
“
Common Depository
”
has the meaning specified in
Section 304(b)
.
“
Company
”
means the Person named as the “
Company
” in the first paragraph of this Indenture until a successor corporation
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “
Company
” shall
mean such successor corporation.
“
Company Request
”
and “
Company Order
” mean, respectively, a written request or order signed in the name of the Company by the
President or a Vice President of the Company, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee.
“
Conversion Event
”
means the cessation of use of (i) a Foreign Currency (other than the ECU or other currency unit) both by the government of the
country which issued such currency and for the settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the European Monetary System and for the settlement of transactions
by public institutions of or within the European Communities or (iii) any currency unit (or composite currency) other than the
ECU for the purposes for which it was established.
“
Corporate Trust
Office
” means the office of the Trustee at which at any time its corporate trust business shall be administered, which
office at the date hereof is located at [_____________], [______________], or such other address as the Trustee may designate from
time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such
other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“
corporation
”
includes corporations, associations, companies and business or statutory trusts.
“c
oupon
”
means any interest coupon appertaining to a Bearer Security.
“
Custodian
”
has the meaning specified in
Section 501
.
“
Defaulted Interest
”
has the meaning specified in
Section 307
.
“
Dollar
”
or “
$
” means a dollar or other equivalent unit in such coin or currency of the United States of America as at
the time shall be legal tender for payment of public and private debts.
“
DTC
”
means The Depository Trust Company.
“
ECU
”
means the European Currency Unit as defined and revised from time to time by the Council of the European Communities.
“
Euroclear
”
means Morgan Guaranty Trust Company of New York, Brussels Office, or its successor as operator of the Euroclear System.
“
European Communities
”
means the European Economic Community, the European Coal and Steel Community and the European Atomic Energy Community.
“
European Monetary
System
” means the European Monetary System established by the Resolution of December 5, 1978 of the Council of the European
Communities.
“
Event of Default
”
has the meaning specified in
Section 501
.
“
Exchange Act
”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder by the Commission.
“
Exchange Date
”
has the meaning specified in
Section 304
.
“
Foreign Currency
”
means any currency, currency unit or composite currency, including, without limitation, the ECU, issued by the government of one
or more countries other than the United States of America or by any recognized confederation or association of such governments,
which currency shall be acceptable to the Trustee.
“
GAAP
”
means generally accepted accounting principles as used in the United States applied on a consistent basis as in effect from time
to time; provided that solely for purposes of any calculation required by the financial covenants contained herein, “
GAAP
”
shall mean generally accepted accounting principles as used in the United States on the date hereof, applied on a consistent basis.
“
Government Obligations
”
means securities which are (i) direct obligations of the United States of America or the government which issued the Foreign Currency
in which the Securities of a particular series are payable, for the payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America
or such government which issued the Foreign Currency in which the Securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of America or such other government, which,
in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest
on or principal of any such Government Obligation held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific
payment of interest on or principal of the Government Obligation evidenced by such depository receipt.
“
Guarantee
”
means a guarantee by any Guarantor of an obligation under this Indenture.
“
Holder
”
means, in the case of a Registered Security, the Person in whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect to any coupon, shall mean the bearer thereof.
“
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 pursuant to the applicable provisions hereof, and shall include the terms of particular series
of Securities established as contemplated by
Section 301
; provided, however, that, if at any time more than one Person
is acting as Trustee under this instrument, “
Indenture
” shall mean, with respect to any one or more series of
Securities for which such Person is Trustee, 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 pursuant to the applicable provisions hereof and shall include
the terms of the or those particular series of Securities for which such Person is Trustee established as contemplated by
Section 301
,
exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee,
regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more
indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which such Person, as such
Trustee, was not a party.
“
Indexed Security
”
means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
“
Interest
”
when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest
payable after Maturity, and, when used with respect to a Security which provides for the payment of Additional Amounts pursuant
to
Section 1007
, includes such Additional Amounts.
“
Interest Payment
Date
” means, when used with respect to any Security, the Stated Maturity of an installment of interest on such Security.
“
Make-Whole Amount
”
means the amount, if any, in addition to principal which is required by a Security, under the terms and conditions specified therein
or as otherwise specified as contemplated by
Section 301
, to be paid by the Company to the Holder thereof in connection
with any optional redemption or accelerated payment of such Security.
“
Maturity
”
means, when used with respect to any Security, the date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice
of redemption, notice of option to elect repayment, repurchase or otherwise.
“
Officers’
Certificate
” means a certificate signed by the President or a Vice President and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Company, delivered to the Trustee and meeting the requirements of
Section 102
,
to the extent applicable.
“
Opinion of Counsel
”
means a written opinion of counsel, who may be an employee of or counsel for the Company or other counsel satisfactory to the Trustee
and meeting the requirements of
Section 102
, to the extent applicable.
“
Original Issue
Discount Security
” means any Security which provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502
.
“
Outstanding
”
when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities
theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities,
or portions thereof, for whose payment or redemption or repayment at the option of the Holder money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities and any coupons appertaining
thereto; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture
or other provision therefor satisfactory to the Trustee has been made;
(iii) Securities,
except solely to the extent provided in
Section 1402
or
Section 1403
, as applicable, with respect to which
the Company has effected defeasance and/or covenant defeasance as provided in
Article Fourteen
;
(iv) Securities
which have been paid pursuant to
Section 306
or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company; and
(v) Securities that have been converted into Capital Stock of the Company pursuant to
or in accordance with this Indenture if the terms of such Securities provide for convertibility pursuant to
Section 301
;
provided, however, that in determining whether
the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (A) the principal amount of an Original Issue Discount Security that may be counted in
making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount
of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination, upon
a declaration of acceleration of the Maturity thereof pursuant to
Section 502
, (B) the principal amount of any Security
denominated in a Foreign Currency that may be counted in making such determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the Dollar equivalent, determined pursuant to
Section 301
as of the date such Security
is originally issued by the Company, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar
equivalent as of such date of original issuance of the amount determined as provided in clause (A) above) of such Security, (C)
the principal amount of any Indexed Security that may be counted in making such determination or calculation and that shall be
deemed Outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Indexed Security pursuant to
Section 301
, and (D) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation
or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act
with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor. Upon the written request of the Trustee, the Company shall furnish to the Trustee promptly
an Officers’ Certificate listing and identifying all Securities, if any, known by the Company to be owned by, held by or
for the account of the Company, or any other obligor on the Securities or any Affiliate of the Company or such obligor, and subject
to the provisions of
Section 602
, the Trustee shall be entitled to accept such Officers’ Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose
of any such determination.
“
Paying Agent
”
means any Person authorized by the Company to pay the principal of (and premium or Make-Whole Amount, if any) or interest, if any,
on any Securities, or coupons on behalf of the Company, or if no such Person is authorized, the Company.
“
Person
”
means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision thereof.
“
Place of Payment
”
means, when used with respect to the Securities of or within any series, the place or places (which, in the case of Bearer Securities,
shall be outside the United States) where the principal of (and premium or Make-Whole Amount, if any) and interest on such Securities
are payable as specified as contemplated by
Section 301
and
Section 1002
.
“
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 306
in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a mutilated, destroyed, lost
or stolen coupon appertains shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security or the
Security to which the mutilated, destroyed, lost or stolen coupon appertains.
“
Redemption Date
”
means, when used with respect to any Security to be redeemed in whole or in part, the date fixed for such redemption by or pursuant
to this Indenture.
“
Redemption Price
”
means, when used with respect to any Security to be redeemed, the price at which it is to be redeemed pursuant to this Indenture.
“
Registered Security
”
means any Security which is registered in the Security Register.
“
Regular Record
Date
” for the installment of interest payable on any Interest Payment Date on the Registered Securities of or within
any series means the date specified for that purpose as contemplated by
Section 301
, whether or not a Business Day.
“
Repayment Date
”
means, when used with respect to any Security to be repaid or repurchased at the option of the Holder, the date fixed for such
repayment or repurchase by or pursuant to this Indenture.
“
Responsible Officer
”
means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee (or any successor
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 is referred because of such person’s knowledge
of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“
Securities Act
”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder by the Commission.
“
Security
”
has the meaning stated in the first recital of this Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that if at any time there is more than one Person acting as Trustee under
this Indenture, “
Securities
” with respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered under
this Indenture, exclusive, however, of Securities of or within any series as to which such Person is not Trustee.
“
Security Register
”
and “
Security Registrar
” have the respective meanings specified in
Section 305
.
“
Significant Subsidiary
”
means any Subsidiary which is a “
significant subsidiary
” (within the meaning of Regulation S-X, promulgated
under the Securities Act) of the Company.
“
Special Record
Date
” for the payment of any Defaulted Interest on the Registered Securities of or within any series means a date fixed
by the Trustee pursuant to
Section 307
.
“
Stated Maturity
”
means, when used with respect to any Security or any installment of principal thereof or interest thereon, the date specified in
such Security or a coupon representing such installment of interest as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
“
Subsidiary
”
means, with respect to any Person, any corporation or other entity of which a majority of (a) the voting power of the voting equity
securities or (b) the outstanding equity interests of which are owned, directly or indirectly, by such Person. For the purposes
of this definition, “
voting equity securities
” means equity securities having voting power for the election
of directors, whether at all times or only so long as no senior class of security has such voting power by reason of any contingency.
“
Trust Indenture
Act
” or “
TIA
” means the U.S. Trust Indenture Act of 1939, as amended and as in force at the date as
of which this Indenture was executed, except as provided in
Section 905
.
“
Trustee
”
means the Person named as the “
Trustee
” in the first paragraph of this Indenture until a successor Trustee shall
have become such pursuant to the applicable provisions of this Indenture, and thereafter “
Trustee
” shall mean
or include each Person who is then a Trustee hereunder; provided, however, that if at any time there is more than one such Person,
“
Trustee
” as used with respect to the Securities of or within any series shall mean only the Trustee with respect
to the Securities of that series.
“
United States
”
means, unless otherwise specified with respect to any Securities pursuant to
Section 301
, the United States of America
(including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
“
United States
person
” means, unless otherwise specified with respect to any Securities pursuant to
Section 301
, an individual
who is a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under
the laws of the United States or of any state or the District of Columbia or an estate or trust the income of which is subject
to United States federal income taxation regardless of its source.
“
Yield to Maturity
”
means the yield to maturity, computed at the time of issuance of a Security (or, if applicable, at the most recent predetermination
of interest on such Security) and as set forth in such Security in accordance with generally accepted United States bond yield
computation principles.
Section 102
Compliance
Certificates and Opinions
.
Upon any application or
request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture (including
covenants, compliance with which constitute conditions precedent) relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need
be furnished.
Every certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture (excluding certificates delivered pursuant
to
Section 1006
) shall include:
(a) a
statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein
relating thereto;
(b) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a
statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition or covenant has been complied with; and
(d) a
statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 103
Form
of Documents Delivered to Trustee
.
In any case where several
matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion as to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion
of an officer of the Company may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a certificate
or representations by counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion,
certificate or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such
Opinion of Counsel or certificate or representations may be based, insofar as it relates to factual matters, upon a certificate
or opinion of, or representations by, an officer or officers of the Company stating that the information as to such factual matters
is in the possession of the Company, unless such counsel knows that the certificate or opinion or representations as to such matters
are erroneous.
Where any Person is required
to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 104
Acts
of Holders
.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken
by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing.
If Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, whether in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance with
the provisions of
Article Fifteen
, or a combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to as the “
Act
” of the Holders
signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Company and any agent of the Trustee or the Company, if made in the manner provided
in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in
Section 1506
.
(b) The
fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a
signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing
the same, may also be proved in any other reasonable manner which the Trustee deems sufficient.
(c) The
ownership of Registered Securities shall be proved by the Security Register or by a certificate of the Security Registrar.
(d) The
ownership of Bearer Securities may be proved by the production of such Bearer Securities or by a certificate executed, as depository,
by any trust company, bank, banker or other depository, wherever situated, if such certificate shall be deemed by the Trustee to
be satisfactory, showing that at the date therein mentioned such person had on deposit with such depository, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2) such Bearer Security is produced to the Trustee by some other Person,
or (3) such Bearer Security is surrendered in exchange for a Registered Security, or (4) such Bearer Security is no longer Outstanding.
The ownership of Bearer Securities may also be proved in any other manner which the Trustee deems sufficient.
(e) If
the Company shall solicit from the Holders of Registered Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation
of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date
is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(f) Any
request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, any Security Registrar,
any Paying Agent, any Authenticating Agent or the Company in reliance thereon, whether or not notation of such Act is made upon
such Security.
Section 105
Notices,
etc., to the Trustee and Company
.
Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon,
given or furnished to or filed with:
(a) the
Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(b) the
Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified
in the first paragraph of this Indenture or at any other address previously furnished in writing to the Trustee by the Company.
Section 106
Notice
to Holders; Waiver
.
Where this Indenture provides
for notice of any event to Holders of Registered Securities by the Company or the Trustee, such notice shall be sufficiently given
(unless otherwise herein expressly provided or otherwise specified with respect to any series of Securities pursuant to
Section 301
)
if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears
in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of
such notice. In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether
or not such Holder actually receives such notice.
If by reason of the suspension
of or irregularities in regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail,
then such notification to Holders of Registered Securities as shall be made with the approval of the Trustee shall constitute a
sufficient notification to such Holders for every purpose hereunder.
Except as otherwise expressly
provided herein or otherwise specified with respect to any series of Securities pursuant to
Section 301
, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such notice shall be sufficiently given if published
in an Authorized Newspaper in the City of New York and in such other city or cities as may be specified in such Securities, and
if the Securities of such series are listed on any stock exchange outside the United States, in any place at which such Securities
are listed on a securities exchange to the extent that such securities exchange so requires, on a Business Day, such publication
to be not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. Any such
notice shall be deemed to have been given on the date of such publication or, if published more than once, on the date of the first
such publication.
If by reason of the suspension
of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to
publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder.
Neither the failure to give notice by publication to any particular Holder of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of such notice with respect to other Holders of Bearer Securities or the
sufficiency of any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization,
direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any
published notice may be in an official language of the country of publication.
Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 107
Effect
of Headings and Table of Contents
.
The Article and Section
headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 108
Successors
and Assigns
.
All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 109
Separability
Clause
.
In case any provision in
this Indenture or in any Security or coupon shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.
Section 110
Benefits
of Indenture
.
Nothing in this Indenture
or in the Securities or coupons appertaining thereto, express or implied, shall give to any Person, other than the parties hereto,
any Security Registrar, any Paying Agent, any Authenticating Agent and their successors hereunder and the Holders any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 111
No
Personal Liability
.
No recourse under or upon
any obligation, covenant or agreement contained in this Indenture or any supplemental indenture, in any Security or coupon appertaining
thereto, or because of any indebtedness evidenced thereby, shall be had against any promoter, as such, or against any past, present
or future shareholder, officer, director or employee, as such, of the Company or of any successor, either directly or through the
Company or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of
the Securities by the Holders thereof and as part of the consideration for the execution of this Indenture and the issue of the
Securities.
Section 112
Governing
Law
.
This Indenture and the
Securities and coupons shall be governed by and construed in accordance with the laws of the State of New York without regard to
conflict of laws principles of such state other than New York General Obligations Law Section 5-1401. This Indenture is subject
to the provisions of the TIA that are required to be part of this Indenture and shall, to the extent applicable, be governed by
such provisions.
Section 113
Legal
Holidays
.
In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity of any Security shall not
be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or any Security or coupon
other than a provision in the Securities of any series which specifically states that such provision shall apply in lieu hereof),
payment of interest, if any, or any Additional Amounts or principal (and premium or Make-Whole Amount, if any) need not be made
at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on such Interest Payment Date, Redemption Date, Repayment Date or sinking fund payment date, or at
the Stated Maturity or Maturity, as the case may be, provided that no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity,
as the case may be, to such next succeeding Business Day.
Section 114
Waiver
of Jury Trial
.
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 NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 115
Counterparts
.
This Indenture may be executed
and delivered in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original, and
all such counterparts shall together constitute but one and the same instrument.
Section 116
Force
Majeure.
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.
Article Two
Securities Forms
Section 201
Forms
of Securities
.
The Registered Securities,
if any, of each series and the Bearer Securities, if any, and related coupons of each series, shall be in substantially the forms
as shall be established in or pursuant to one or more indentures supplemental hereto or Board Resolutions, shall have such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or any indenture supplemental
hereto, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements placed
thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required
to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange
on which the Securities may be listed, or to conform to usage.
Unless otherwise specified
as contemplated by
Section 301
, Bearer Securities shall have interest coupons attached.
The definitive Securities
and coupons shall be printed, lithographed or engraved or produced by any combination of these methods on a steel engraved border
or steel engraved borders or may be produced in any other manner, all as determined by the officers of the Company executing such
Securities or coupons, as evidenced by their execution of such Securities or coupons.
Section 202
Form
of Trustee’s Certificate of Authentication
.
Subject to
Section 611
,
the Trustee’s certificate of authentication shall be in substantially the following form:
This is one of the Securities
of the series designated therein referred to in the within-mentioned Indenture.
[_______________________],
as Trustee
By:
Name:
Title:
Section 203
Securities
Issuable in Global Form
.
If Securities of or within
a series are issuable in global form, as specified as contemplated by
Section 301
, then, notwithstanding clause
(h)
of
Section 301
and the provisions of
Section 302
, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities of such series
represented thereby may from time to time be increased or decreased to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made
by the Trustee in such manner and upon written instruction given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to
Section 303
or
Section 304
. Subject to the
provisions of
Section 303
and, if applicable,
Section 304
, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to
Section 303
or
Section 304
has been, or simultaneously
is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with
Section 102
and need not be accompanied by an Opinion of Counsel.
The provisions of the last
sentence of
Section 303
shall apply to any Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with written instructions
(which need not comply with
Section 102
and need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence
of
Section 303
.
Notwithstanding any provision
of
Section 307
, unless otherwise specified as contemplated by
Section 301
, payment of principal of and
any premium or Make-Whole Amount and interest, if any, on any Security in permanent global form shall be made to the Person or
Persons specified therein.
Notwithstanding the provisions
of
Section 308
and except as provided in the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a permanent global
Security (a) in the case of a permanent global Security in registered form, the Holder of such permanent global Security in registered
form, or (b) in the case of a permanent global Security in bearer form, Euroclear or Clearstream.
Section 204
CUSIP,
CINS or ISIN Numbers
.
The Company in issuing
any series of Securities may use “
CUSIP
”, “
CINS
” or “
ISIN
” numbers (if
then generally in use), and, if so, the Trustee shall use “
CUSIP
”, “
CINS
” or “
ISIN
”
numbers in notices as a convenience to Holders; provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on such Securities or as contained in any notice and that reliance may be placed
only on the other identification numbers printed on such Securities, and any such action relating to such notice shall not be affected
by any defect in or omission of such numbers in such notice. The Company shall promptly notify the Trustee, in writing, of any
change in the “
CUSIP
”, “
CINS
” or “
ISIN
” numbers.
Article Three
The Securities
Section 301
Amount
Unlimited; Issuable in Series
.
The aggregate principal
amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued
in one or more series. There shall be established in or pursuant to authority granted by one or more Board Resolutions, and, subject
to
Section 303
, set forth in, or determined in the manner provided in, an Officers’ Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, any or all of the following,
as applicable (each of which (except for the matters set forth in clauses
(a)
,
(b)
and
(o)
below), if so provided,
may be determined from time to time by the Company with respect to unissued Securities of or within the series when issued from
time to time):
(a) the
title of the Securities of or within the series (which shall distinguish the Securities of such series from all other series of
Securities);
(b) any
limit upon the aggregate principal amount of the Securities of or within the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of or within the series pursuant to
Section 304
,
Section 305
,
Section 306
,
Section 906
,
Section 1107
, or
Section 1305
);
(c) the
date or dates, or the method by which such date or dates will be determined, on which the principal of the Securities of or within
the series shall be payable and the amount of principal payable thereon;
(d) the
rate or rates (which may be fixed or variable) at which the Securities of or within the series shall bear interest, if any, or
the method by which such rate or rates shall be determined, the date or dates from which any such interest shall accrue or the
method by which such date or dates shall be determined, the Interest Payment Dates on which such interest will be payable and the
Regular Record Date, if any, for the interest payable on any Registered Security on any Interest Payment Date, or the method by
which such date shall be determined, and the basis upon which interest shall be calculated if other than that of a 360-day year
consisting of twelve 30-day months;
(e) the
place or places, if any, other than or in addition to the Borough of Manhattan, the City of New York, where the principal of (and
premium or Make-Whole Amount, if any), interest, if any, on, and Additional Amounts, if any, payable in respect of, Securities
of or within the series shall be payable (which, in the case of Bearer Securities, shall be payable outside the United States),
where any Registered Securities of or within the series may be surrendered for registration of transfer, exchange or conversion
and notices or demands to or upon the Company in respect of the Securities of or within the series and this Indenture may be served;
(f) the
period or periods within which, the price or prices (including the premium or Make-Whole Amount, if any) at which, the currency
or currencies, currency unit or units or composite currency or currencies (each of which currency shall be acceptable to the Trustee)
in which and other terms and conditions upon which Securities of or within the series may be redeemed in whole or in part, at the
option of the Company, if the Company is to have the option;
(g) the
obligation, if any, of the Company to redeem, repay or purchase Securities of or within the series pursuant to any sinking fund
or analogous provision or at the option of a Holder thereof, and the period or periods within which or the date or dates on which,
the price or prices at which, the currency or currencies, currency unit or units or composite currency or currencies (each of which
currency shall be acceptable to the Trustee) in which, and other terms and conditions upon which Securities of or within the series
shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(h) if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Registered Securities of or
within the series shall be issuable and, if other than the denomination of $5,000, the denomination or denominations in which any
Bearer Securities of or within the series shall be issuable;
(i) if
other than the Trustee, the identity of each Security Registrar and/or Paying Agent;
(j) if
other than the principal amount thereof, the portion of the principal amount of Securities of or within the series that shall be
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 502
or, if applicable, the portion
of the principal amount of Securities of or within the series that is convertible in accordance with the provisions of this Indenture,
or the method by which such portion shall be determined;
(k) if
other than Dollars, the Foreign Currency or Currencies in which payment of the principal of (and premium or Make-Whole Amount,
if any) or interest, if any, or Additional Amounts, if any, on the Securities of or within the series shall be payable or in which
the Securities of or within the series shall be denominated, each of which Foreign Currencies shall be acceptable to the Trustee;
(l) whether
the amount of payments of principal of (and premium or Make-Whole Amount, if any) or interest, if any, on the Securities of or
within the series may be determined with reference to an index, formula or other method (which index, formula or method may be
based, without limitation, on one or more currencies, currency units, composite currencies, commodities, equity indices or other
indices), and the manner in which such amounts shall be determined;
(m) whether
the principal of (and premium or Make-Whole Amount, if any) or interest, if any, or Additional Amounts, if any, on the Securities
of or within the series are to be payable, at the election of the Company or a Holder thereof, in a currency or currencies, currency
unit or units or composite currency or currencies (each of which currency shall be acceptable to the Trustee) other than that in
which such Securities are denominated or stated to be payable, the period or periods within which, and the terms and conditions
upon which, such election may be made, and the time and manner of, and identity of the exchange rate agent with responsibility
for, determining the exchange rate between the currency or currencies, currency unit or units or composite currency or currencies
in which such Securities are denominated or stated to be payable and the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are to be so payable;
(n) the
designation of the initial exchange rate agent, if any, or any depositories;
(o) provisions,
if any, granting special rights to the Holders of Securities of or within the series upon the occurrence of such events as may
be specified;
(p) any
deletions from, modifications of or additions to the Events of Default or covenants of the Company with respect to Securities of
or within the series, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants
set forth herein;
(q) whether
Securities of or within the series are to be issuable as Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of Bearer Securities and the terms upon which Bearer Securities
of or within the series may be exchanged for Registered Securities of or within the series and vice versa (if permitted by applicable
laws and regulations), whether any Securities of or within the series are to be issuable initially in temporary global form and
whether any Securities of or within the series are to be issuable in permanent global form (with or without coupons) and, if so,
whether beneficial owners of interests in any such permanent global Security may exchange such interests for Securities of such
series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur,
if other than in the manner provided in
Section 305
, and, if Registered Securities of or within the series are to be
issuable as a global Security, the identity of the depository for such series;
(r) the
date as of which any Bearer Securities of or within the series and any temporary global Security representing Outstanding Securities
of or within the series shall be dated if other than the date of original issuance of the first Security of the series to be issued;
(s) the
Person to whom any interest on any Registered Security of the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest,
the manner in which, or the Person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining thereto as they severally mature, and the extent to which, or the manner
in which, any interest payable on a temporary global Security on an Interest Payment Date will be paid if other than in the manner
provided in
Section 304
;
(t) the
applicability, if any, of
Section 1402
and/or
Section 1403
to the Securities of or within the series and
any provisions in modification of, in addition to or in lieu of any of the provisions of
Article Fourteen
;
(u) if
the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then
the form and/or terms of such certificates, documents or conditions;
(v) if
the Securities of or within the series are to be issued upon the exercise of debt warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(w) whether
and under what circumstances the Company will pay Additional Amounts as contemplated by
Section 1007
on the Securities
of or within the series to any Holder who is not a United States person (including any modification to the definition of such term)
in respect of any tax, assessment or governmental charge and, if so, whether the Company will have the option to redeem such Securities
rather than pay such Additional Amounts (and the terms of any such option);
(x) the
obligation, if any, of the Company to permit the conversion of the Securities of such series into shares of Capital Stock of the
Company and the terms and conditions upon which such conversion shall be effected (including, without limitation, the initial conversion
price or rate, the conversion period, any adjustment of the applicable conversion price or rate and any requirements relative to
the reservation of such shares for purposes of conversion);
(y) if
convertible, any applicable limitations on the ownership or transferability of the Capital Stock into which such Securities are
convertible; and
(z) any
other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture except as permitted by
Section 905
).
All Securities of any one
series and the coupons appertaining to any Bearer Securities of such series, if any, shall be substantially identical except, in
the case of Registered or Bearer Securities issued in global form, as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution or in any indenture supplemental hereto. All Securities of any one series need not be issued
at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
If any of the terms of
the Securities of any series are established by action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) 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 Company Order for authentication and delivery of such Securities.
Section 302
Denominations
.
The Securities of each
series shall be issuable in such denominations as shall be specified as contemplated by
Section 301
. With respect to
Securities of any series denominated in Dollars, in the absence of any such provisions with respect to the Securities of any series,
the Registered Securities of such series, other than Registered Securities issued in global form (which may be of any denomination),
shall be issuable in denominations of $1,000 and any integral multiple thereof and the Bearer Securities of such series other than
Bearer Securities issued in global form (which may be of any denomination), shall be issuable in denominations of $5,000.
Section 303
Execution,
Authentication, Delivery and Dating
.
The Securities and any
coupons appertaining thereto shall be executed on behalf of the Company by its President or a Vice President, under its corporate
seal reproduced thereon, and attested by its Secretary or an Assistant Secretary. The signature of any of these officers on the
Securities and coupons may be manual or facsimile signatures of the present or any future such authorized officer and may be imprinted
or otherwise reproduced on the Securities.
Securities or coupons appertaining
thereto bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at the date of such Securities or coupons.
At any time and from time
to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series, together with any
coupon appertaining thereto, executed by the Company to the Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities;
provided, however, that, in connection with its original issuance, no Bearer Security shall be mailed or otherwise delivered to
any location in the United States; and provided further that, unless otherwise specified with respect to any series of Securities
pursuant to
Section 301
a Bearer Security may be delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have furnished a certificate to Euroclear or Clearstream, as the case may be, in
the form set forth in Exhibit A-1 to this Indenture or such other certificate as may be specified with respect to any series of
Securities pursuant to
Section 301
, dated no earlier than 15 days prior to the earlier of the date on which such Bearer
Security is delivered and the date on which any temporary Security first becomes exchangeable for such Bearer Security in accordance
with the terms of such temporary Security and this Indenture. Except as permitted by
Section 306
, the Trustee shall
not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured have been detached and
canceled.
If all of the Securities
of any series are not to be issued at one time and if the Board Resolution, Officers’ Certificate pursuant to a Board Resolution
or supplemental indenture establishing such series shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of particular Securities of such series, such as interest
rate or formula, maturity date, date of issuance and date from which interest shall accrue. In authenticating such Securities,
and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled
to receive, and (subject to TIA Section 315(a) through 315(d)) shall be fully protected in relying upon:
(a) an
Opinion of Counsel complying with
Section 102
and stating that:
(1) the
form or forms of such Securities and any coupons have been, or will have been upon compliance with such procedures as may be specified
therein, established in conformity with the provisions of this Indenture;
(2) the
terms of such Securities and any coupons have been, or will have been upon compliance with such procedures as may be specified
therein, established in conformity with the provisions of this Indenture; and
(3) such
Securities, together with any coupons appertaining thereto, when completed pursuant to such procedures as may be specified therein,
and executed and delivered by the Company to the Trustee for authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legal, valid and binding obligations of the Company, enforceable in accordance
with their terms, subject to applicable bankruptcy, insolvency, reorganization and other similar laws of general applicability
relating to or affecting the enforcement of creditors’ rights generally and to general equitable principles and to such other
matters as may be specified therein; and
(b) an
Officers’ Certificate complying with
Section 102
and stating that all conditions precedent provided for in this
Indenture relating to the issuance of such Securities have been, or will have been upon compliance with such procedures as may
be specified therein, complied with and that, to the best of the knowledge of the signers of such certificate, no Event of Default
with respect to such Securities shall have occurred and be continuing.
Notwithstanding the provisions
of
Section 301
and of the preceding paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver a Company Order, an Opinion of Counsel or an Officers’ Certificate otherwise required
pursuant to the preceding paragraph at the time of issuance of each Security of such series, but such order, opinion and certificate,
with appropriate modifications to cover such future issuances, shall be delivered at or before the time of issuance of the first
Security of such series.
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, obligations or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Each Registered Security
shall be dated the date of its authentication and each Bearer Security shall be dated as of the date specified as contemplated
by
Section 301
.
No Security or coupon appertaining
thereto shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on
such Security or the Security to which such coupon appertains a certificate of authentication substantially in the form provided
for herein duly executed by the Trustee by manual signature of a Responsible Officer, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled
to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided
in
Section 309
together with a written statement (which need not comply with
Section 102
and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been issued or sold by the Company, for all purposes
of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
Section 304
Temporary
Securities
.
(a) Pending
the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form, or,
if authorized, in bearer form with one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions
and other variations as the officers of the Company executing such Securities may determine, as conclusively evidenced by their
execution of such Securities. In the case of Securities of any series, such temporary Securities may be in global form.
Except in the case of temporary
Securities in global form (which shall be exchanged in accordance with
Section 304(b)
or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are issued, the Company will cause definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series (accompanied by any non-matured coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount
of definitive Securities of the same series and of like tenor of authorized denominations; provided, however, that no definitive
Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided further that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in
Section 303
.
Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture
as definitive Securities of such series.
(b) Unless
otherwise provided as contemplated in
Section 301
, this
Section 304(b)
shall govern the exchange of temporary
Securities issued in global form other than through the facilities of DTC. If any such temporary Security is issued in global form,
then such temporary global Security shall, unless otherwise provided therein, be delivered to the London office of a depository
or common depository (the “
Common Depository
”), for the benefit of Euroclear and Clearstream.
Without unnecessary delay
but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary global Security
(the “
Exchange Date
”), the Company shall deliver to the Trustee definitive Securities, in an aggregate principal
amount equal to the principal amount of such temporary global Security, executed by the Company. On or after the Exchange Date,
such temporary global Security shall be surrendered by the Common Depository to the Trustee, as the Company’s agent for such
purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global Security, an equal aggregate principal amount of
definitive Securities of or within the same series of authorized denominations and of like tenor as the portion of such temporary
global Security to be exchanged. The definitive Securities to be delivered in exchange for any such temporary global Security shall
be in bearer form, registered form, permanent global bearer form or permanent global registered form, or any combination thereof,
as specified as contemplated by
Section 301
, and, if any combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, unless otherwise specified in such temporary global Security, upon such presentation by
the Common Depository, such temporary global Security is accompanied by a certificate dated the Exchange Date or a subsequent date
and signed by Euroclear as to the portion of such temporary global Security, if any, held for its account then to be exchanged
and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream as to the portion of such temporary global
Security, if any, held for its account then to be exchanged, each in the form set forth in Exhibit A-2 to this Indenture or in
such other form as may be established pursuant to
Section 301
; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only in compliance with the requirements of
Section 303
.
Unless otherwise specified
in such temporary global Security, the interest of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like tenor following the Exchange Date when the account
holder instructs Euroclear or Clearstream, as the case may be, to request such exchange on his behalf and delivers to Euroclear
or Clearstream, as the case may be, a certificate in the form set forth in Exhibit A-1 to this Indenture (or in such other form
as may be established pursuant to
Section 301
), dated no earlier than 15 days prior to the Exchange Date, copies of
which certificate shall be available from the offices of Euroclear or Clearstream, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise specified in such temporary global Security, any such exchange
shall be made free of charge to the beneficial owners of such temporary global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or Clearstream. Definitive Securities in bearer form to be delivered in exchange
for any portion of a temporary global Security shall be delivered only outside the United States.
Until exchanged in full
as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by
Section 301
, interest payable on a temporary global Security on an Interest
Payment Date for Securities of such series occurring prior to the applicable Exchange Date shall be payable to Euroclear or Clearstream
or the applicable Paying Agent on such Interest Payment Date upon delivery by Euroclear or Clearstream to the Trustee of a certificate
or certificates in the form set forth in Exhibit A-2 to this Indenture (or in such other forms as may be established pursuant to
Section 301
), for credit without further interest on or after such Interest Payment Date to the respective accounts
of Persons who are the beneficial owners of such temporary global Security on such Interest Payment Date and who have each delivered
to Euroclear or Clearstream, as the case may be, a certificate dated no earlier than 15 days prior to the Interest Payment Date
occurring prior to such Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such other forms as may be
established pursuant to
Section 301
). Notwithstanding anything to the contrary herein contained, the certifications
made pursuant to this paragraph shall satisfy the certification requirements of the preceding two paragraphs of this
Section 304(b)
and of the third paragraph of
Section 303
of this Indenture and the interests of the Persons who are the beneficial
owners of the temporary global Security with respect to which such certification was made will be exchanged for definitive Securities
of the same series and of like tenor on the Exchange Date or the date of certification if such date occurs after the Exchange Date,
without further act or deed by such beneficial owners. Except as otherwise provided in this paragraph, no payments of principal
or interest, if any, owing with respect to a beneficial interest in a temporary global Security will be made unless and until such
interest in such temporary global Security shall have been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear or Clearstream and not paid as herein provided shall be returned to the Trustee or the applicable Paying
Agent prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Company.
Section 305
Registration,
Registration of Transfer and Exchange
.
The Company shall cause
to be kept at the Corporate Trust Office of the Trustee or in any office or agency of the Company in a Place of Payment a register
for each series of Securities (the registers maintained in such office or in any such office or agency of the Company in a Place
of Payment being herein sometimes referred to collectively as the “
Security Register
”) in which, subject to
such reasonable regulations as it or the Security Registrar may prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities; provided, however, that there shall be only one Security Register per series
of Securities. The Security Register shall be in written form or any other form capable of being converted into written form within
a reasonable time. The Trustee, at its Corporate Trust Office, is hereby initially appointed “
Security Registrar
”
for the purpose of registering Registered Securities and transfers of Registered Securities on such Security Register as herein
provided. In the event that the Trustee shall cease to be Security Registrar, it shall have the right to examine the Security Register
at all reasonable times and to require that a copy of the Security Register in written form be delivered to it from time to time
as reasonably requested.
Subject to the provisions
of this
Section 305
, upon surrender for registration of transfer of any Registered Security of any series at any office
or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series, of
any authorized denominations and of a like aggregate principal amount and tenor, bearing a number not contemporaneously outstanding,
and containing identical terms and provisions.
Subject to the provisions
of this
Section 305
, at the option of the Holder, Registered Securities of any series may be exchanged for other Registered
Securities of the same series, of any authorized denomination or denominations and of a like aggregate principal amount, containing
identical terms and provisions, upon surrender of the Registered Securities to be exchanged at any such office or agency. Whenever
any such Registered Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is entitled to receive. Unless otherwise specified with
respect to any series of Securities as contemplated by
Section 301
, Bearer Securities may not be issued in exchange
for Registered Securities.
If (but only if) permitted
as contemplated by
Section 301
, at the option of the Holder, Bearer Securities of any series may be exchanged for Registered
Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon
or coupons in default, any such permitted exchange may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that, except as otherwise provided in
Section 1002
, interest
represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside
the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or
agency in a permitted exchange for a Registered Security of the same series and like tenor after the close of business at such
office or agency on (a) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest
Payment Date, or (b) any Special Record Date and before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date for payment, as the case may be, and interest or Defaulted Interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the holder making the exchange is entitled to receive.
Notwithstanding the foregoing,
except as otherwise specified as contemplated by
Section 301
, any permanent global Security shall be exchangeable only
as provided in this paragraph. If the depository for any permanent global Security is DTC, then, unless the terms of such global
Security expressly permit such global Security to be exchanged in whole or in part for definitive Securities, a global Security
may be transferred, in whole but not in part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC
for such global Security selected or approved by the Company or to a nominee of such successor to DTC. If at any time DTC notifies
the Company that it is unwilling or unable to continue as depository for the applicable global Security or Securities or if at
any time DTC ceases to be a clearing agency registered under the Exchange Act if so required by applicable law or regulation, the
Company shall appoint a successor depository with respect to such global Security or Securities. If (a) a successor depository
for such global Security or Securities is not appointed by the Company within 90 days after the Company receives such notice or
becomes aware of such unwillingness, inability or ineligibility, (b) an Event of Default has occurred and is continuing and the
beneficial owners representing a majority in principal amount of the applicable series of Securities represented by such global
Security or Securities advise DTC to cease acting as depository for such global Security or Securities or (c) the Company, in its
sole discretion, determines at any time that all Outstanding Securities (but not less than all) of any series issued or issuable
in the form of one or more global Securities shall no longer be represented by such global Security or Securities (provided, however,
the Company may not make such determination during the 40-day restricted period provided by Regulation S under the Securities Act
or during any other similar period during which the Securities must be held in global form as may be required by the Securities
Act), then the Company shall execute, and the Trustee shall authenticate and deliver definitive Securities of like series, rank,
tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of such global Security or Securities.
If any beneficial owner of an interest in a permanent global Security is otherwise entitled to exchange such an interest for Securities
of such series and of like tenor and principal amount of another authorized form and denomination, as specified as contemplated
by
Section 301
and provided that any applicable notice provided in the permanent global Security shall have been given,
then without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the
Company shall execute, and the Trustee shall authenticate and deliver definitive Securities in aggregate principal amount equal
to the principal amount of such beneficial owner’s interest in such permanent global Security. On or after the earliest date
on which such interests may be so exchanged, such permanent global Security shall be surrendered for exchange by DTC or such other
depository as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for such
purpose; provided, however, that no such exchanges may occur during a period beginning at the opening of business 15 days before
any selection of Securities to be redeemed and ending on the relevant Redemption Date if the Security for which exchange is requested
may be among those selected for redemption; and provided further that no Bearer Security delivered in exchange for a portion of
a permanent global Security shall be mailed or otherwise delivered to any location in the United States. If a Registered Security
is issued in exchange for any portion of a permanent global Security after the close of business at the office or agency where
such exchange occurs on (x) any Regular Record Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (y) any Special Record Date and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable
on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect
of such portion of such permanent global Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon
any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security
presented or surrendered for registration of transfer or for exchange or redemption shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall
be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to
Section 304
,
Section 906
,
Section 1107
or
Section 1305
not involving any transfer.
The Company or the Trustee,
as applicable, shall not be required (a) to issue, register the transfer of or exchange any Security if such Security may be among
those selected for redemption during a period beginning at the opening of business 15 days before selection of the Securities to
be redeemed under
Section 1103
and ending at the close of business on (1) if such Securities are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and (2) if such Securities are issuable as Bearer Securities,
the day of the first publication of the relevant notice of redemption or, if such Securities are also issuable as Registered Securities
and there is no publication, the mailing of the relevant notice of redemption, or (b) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except, in the case of any Registered Security to be redeemed
in part, the portion thereof not to be redeemed, or (c) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series and like tenor, provided that such Registered
Security shall be simultaneously surrendered for redemption, or (d) to issue or to register the transfer or exchange of any Security
which has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so
repaid.
Section 306
Mutilated,
Destroyed, Lost and Stolen Securities
.
If any mutilated Security
or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee or the Company, together with such security
or indemnity as may be required by the Company or the Trustee to save each of them or any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and
principal amount, containing identical terms and provisions and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered
to the Company and to the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security or coupon,
and (b) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then,
in the absence of actual notice to the Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser,
the Company shall execute and upon its written request the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same series and principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining
to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions
of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about
to become due and payable, the Company in its discretion may, instead of issuing a new Security, with coupons corresponding to
coupons, if any, appertaining to such mutilated, destroyed, lost or stolen Security or to the Security to which such mutilated,
destroyed, lost or stolen coupon appertains, pay such Security or coupon; provided, however, that payment of principal of (and
premium or Make-Whole Amount, if any), any interest on and any Additional Amounts with respect to Bearer Securities shall, except
as otherwise provided in
Section 1002
, be payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by
Section 301
, any interest on Bearer Securities shall be payable only
upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any
new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any
series with its coupons, if any, issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security,
or in exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains, shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of that series and their coupons, if any, duly issued
hereunder.
The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 307
Payment
of Interest; Interest Rights Preserved
.
Except as otherwise specified
with respect to a series of Securities in accordance with the provisions of
Section 301
, interest, if any, on any Registered
Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record
Date for such interest at the office or agency of the Company maintained for such purpose pursuant to
Section 1002
;
provided, however, that each installment of interest, if any, on any Registered Security may at the Company’s option be paid
by (a) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant to
Section 308
,
to the address of such Person as it appears on the Security Register or (b) transfer to an account maintained by the payee located
inside the United States.
Unless otherwise provided
as contemplated by
Section 301
with respect to the Securities of any series, payment of interest, if any, may be made,
in the case of a Bearer Security, by transfer to an account maintained by the payee with a bank located outside the United States.
Unless otherwise provided
as contemplated by
Section 301
, every permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or Clearstream, as the case may be, with respect to that portion of such
permanent global Security held for its account by DTC, Euroclear or Clearstream, as the case may be, for the purpose of permitting
such party to credit the interest, if any, received by it in respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security
of any series is surrendered in exchange for a Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any Regular Record Date and before the opening of business (at such office or
agency) on the next succeeding Interest Payment Date, such Bearer Security shall be surrendered without the coupon relating to
such Interest Payment Date and interest will not be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture.
Except as otherwise specified
with respect to a series of Securities in accordance with the provisions of
Section 301
, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith
cease to be payable to the registered Holder thereof on the relevant Regular Record Date by virtue of having been such Holder,
and such defaulted interest and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate or formula
specified in the Securities of such series (such defaulted interest and, if applicable, interest thereon herein collectively called
“
Defaulted Interest
”) may be paid by the Company, at its election in each case, as provided in
clause (a)
or
(b)
below:
(a) The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series
(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 Registered Security of such series and the date of the proposed payment (which
shall not be less than 20 days after such notice is received by the Trustee), and at the same time the Company shall deposit with
the Trustee an amount of money in the currency or currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified pursuant to
Section 301
for the Securities
of such series) 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 on or prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice (which notice shall be prepared by the Company) of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Registered Securities of such
series at his address as it appears in the Security Register 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 mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the
following clause
(b)
. In case a Bearer Security of any series is surrendered at the office or agency in a Place of Payment
for such series in exchange for a Registered Security of such series after the close of business at such office or agency on any
Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon relating to such proposed date of payment and Defaulted
Interest will not be payable on such proposed date of payment in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.
(b) The
Company may make payment of any Defaulted Interest on the Registered Securities of any series 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, in writing, to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing
provisions of this Section and
Section 305
, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Security.
Section 308
Persons
Deemed Owners
.
Prior to due presentment
of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Registered Security is registered as the owner of such Security for the purpose of receiving
payment of principal of (and premium or Make-Whole Amount, if any), and (subject to
Section 305
and
Section 307
)
interest on, such Registered Security and for all other purposes whatsoever, whether or not such Registered Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security
and any coupons appertaining thereto shall pass by delivery. The Company, the Trustee and any agent of the Company or the Trustee
may treat the Holder of any Bearer Security and the Holder of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security
or coupon be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the
Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing,
with respect to any global Security, nothing herein shall prevent the Company, the Trustee, or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or other authorization furnished by any depository, as a Holder,
with respect to such global Security or impair, as between such depository and owners of beneficial interests in such global Security,
the operation of customary practices governing the exercise of the rights of such depository (or its nominee) as Holder of such
global Security.
Section 309
Cancellation
.
All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any
such Securities and coupons and Securities and coupons surrendered directly to the Trustee for any such purpose shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other
Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly canceled by the Trustee. If the Company shall so 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 surrendered to the Trustee for cancellation. No Securities shall be authenticated
in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture.
Cancelled Securities and coupons held by the Trustee shall be destroyed by the Trustee and, if requested in writing by the Company,
the Trustee shall deliver a certificate of such destruction to the Company, unless by a Company Order the Company directs their
return to it.
Section 310
Computation
of Interest
.
Except as otherwise specified
as contemplated by
Section 301
with respect to Securities of any series, interest, if any, on the Securities of each
series shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
Article Four
Satisfaction and Discharge
Section 401
Satisfaction
and Discharge of Indenture
.
This Indenture shall upon
Company Request cease to be of further effect with respect to any series of Securities specified in such Company Request (except
as to any surviving rights of registration of transfer or exchange of Securities of such series herein expressly provided for and
any right to receive Additional Amounts, as provided in
Section 1007
), and the Trustee, upon receipt of a Company Order,
and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture
as to such series when:
(a) either:
(1) all
Securities of such series theretofore authenticated and delivered and all coupons, if any, appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered for exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived as provided in
Section 305
, (ii) Securities and coupons of such
series which have been destroyed, lost or stolen and which have been replaced or paid as provided in
Section 306
, (iii)
coupons appertaining to Securities called for redemption and maturing after the relevant Redemption Date, whose surrender has been
waived as provided in
Section 1106
, and (iv) Securities and coupons of such series for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in
Section 1003
) have been delivered to the Trustee for cancellation; or
(2) all Securities of such series and, in the case of (i) or (ii) below, any coupons
appertaining thereto not theretofore delivered to the Trustee for cancellation
(i) have
become due and payable; or
(ii) will
become due and payable at their Stated Maturity within one year; or
(iii) if
redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company,
in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount in the currency or currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities and such
coupons not theretofore delivered to the Trustee for cancellation, for principal (and premium or Make-Whole Amount, if any) and
interest, and any Additional Amounts with respect thereto, to the date of such deposit (in the case of Securities which have become
due and payable) or the Stated Maturity or Redemption Date, as the case may be;
(b) the
Company has paid or caused to be paid all or other sums payable hereunder by the Company; and
(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied
with.
Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Company to the Trustee and any predecessor Trustee under
Section 606
,
the obligations of the Company to any Authenticating Agent under
Section 611
and, if money shall have been deposited
with and held by the Trustee pursuant to subclause (2) of clause (a) of this Section, the obligations of the Trustee under
Section 402
and the last paragraph of
Section 1003
, shall survive.
In the event that there
are Securities of two or more series outstanding hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with respect to Securities of a particular series as to
which it is Trustee and if the other conditions thereto are met.
Section 402
Application
of Trust Fund
.
Subject to the provisions
of the last paragraph of
Section 1003
, all money deposited with the Trustee pursuant to
Section 401
shall
be held in trust and applied by it, in accordance with the provisions of the Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium or Make-Whole Amount, if any), and any interest and Additional
Amounts for whose payment such money has been deposited with or received by the Trustee, but such money need not be segregated
from other funds except to the extent required by law.
Article Five
Remedies
Section 501
Events
of Default
.
Subject to any modifications,
additions or deletions relating to any series of Securities as contemplated pursuant to
Section 301
, “
Event
of Default,
” wherever used herein with respect to any particular series of Securities, means any one of the following
events (whatever the reason for such Event of Default and whether or not it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative
or governmental body):
(a) default
in the payment of any interest upon or any Additional Amounts payable in respect of any Security of or within that series or of
any coupon appertaining thereto, when such interest, Additional Amounts or coupon becomes due and payable, and continuance of such
default for a period of 30 days; or
(b) default
in the payment of the principal of (or premium or Make-Whole Amount, if any, on) any Security of that series when it becomes due
and payable at its Maturity; or
(c) default
in the deposit of any sinking fund payment, when and as due by the terms of any Security of that series; or
(d) default
in the performance, or breach, of any covenant or warranty of the Company in this Indenture with respect to any Security of that
series (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating
that such notice is a “
Notice of Default
” hereunder; or
(e) default
under a bond, debenture, note, mortgage, indenture or instrument under which there may be issued or by which there may be secured
or evidenced any indebtedness for money borrowed by the Company (or by any Subsidiary, the repayment of which the Company has guaranteed
or for which the Company is directly responsible or liable as obligor or guarantor), having a principal amount outstanding in excess
of $20,000,000 (other than indebtedness which is non-recourse to the Company or the Subsidiaries), whether such indebtedness now
exists or shall hereafter be created, which default shall have resulted in such indebtedness being declared due and payable prior
to the date on which it would otherwise have become due and payable, without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within a period of 30 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that series a written notice specifying such default and requiring the Company to cause such indebtedness
to be discharged or cause such acceleration to be rescinded or annulled and stating that such notice is a “
Notice of Default
”
hereunder; or
(f) the
entry by a court of competent jurisdiction of one or more judgments, orders or decrees against the Company or any of its Subsidiaries
in an aggregate amount (excluding amounts covered by insurance) in excess of $20,000,000 and such judgments, orders or decrees
remain undischarged, unstayed and unsatisfied in an aggregate amount (excluding amounts covered by insurance) in excess of $20,000,000
for a period of 60 consecutive days; or
(g) the
Company or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(1) commences
a voluntary case,
(2) consents
to the entry of an order for relief against it in an involuntary case,
(3) consents
to the appointment of a Custodian of it or for all or substantially all of its property; or
(4) makes
a general assignment for the benefit of its creditors; or
(h) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(1) is
for relief against the Company or any Significant Subsidiary in an involuntary case,
(2) appoints
a Custodian of the Company or any Significant Subsidiary or for all or substantially all of either of its property; or
(3) orders
the liquidation of the Company or any Significant Subsidiary, and the order or decree remains unstayed and in effect for 90 days;
or
(i) any
other Event of Default provided with respect to Securities of that series.
As used in this
Section 501
,
the term “
Bankruptcy Law
” means Title 11, U.S. Code or any similar Federal or state law for the relief of debtors
and the term “
Custodian
” means any receiver, trustee, assignee, liquidator or other similar official under any
Bankruptcy Law.
Section 502
Acceleration
of Maturity; Rescission and Annulment
.
If an Event of Default
discussed in
clause (a)
,
(b)
,
(c)
,
(d)
,
(e)
,
(f)
or
(i)
of
Section 501
with respect to Securities of any series at the time Outstanding occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal
(or, if any Securities are Original Issue Discount Securities or Indexed Securities, such portion of the principal as may be specified
in the terms thereof) of, and the Make-Whole Amount, if any, on, all the Outstanding Securities of that series and any accrued
and unpaid cash interest through the date of such declaration to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such declaration such principal or specified portion thereof
shall become immediately due and payable.
At any time after such
a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment
of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(a) the
Company has paid or deposited with the Trustee a sum sufficient to pay in the currency, currency unit or composite currency in
which the Securities of such series is payable (except as otherwise specified pursuant to
Section 301
for the Securities
of such series):
(1) all
overdue installments of interest on and any Additional Amounts payable in respect of all Outstanding Securities of that series
and any related coupons;
(2) the
principal of (and premium or Make-Whole Amount, if any, on) any Outstanding Securities of that series which have become due otherwise
than by such declaration of acceleration and interest thereon at the rate or rates borne by or provided for in such Securities;
(3) to
the extent that payment of such interest is lawful, interest upon overdue installments of interest and any Additional Amounts at
the rate or rates borne by or provided for in such Securities; and
(4) all
sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(b) all
Events of Default with respect to Securities of that series, other than the nonpayment of the principal of (or premium or Make-Whole
Amount, if any) or interest, if any, on Securities of that series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in
Section 513
.
No such rescission shall
affect any subsequent default or impair any right consequent thereon.
If an Event of Default
described in
clause (g)
or
(h)
of
Section 501
occurs and is continuing, then the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such portion of the principal as may be specified in the
terms thereof) of, and the Make-Whole Amount, if any, on, all the Outstanding Securities of that series and any accrued interest
through the occurrence of such Event of Default, shall become due and payable immediately, without any declaration or other act
by the Trustee or any other Holder.
Section 503
Collection
of Indebtedness and Suits for Enforcement by Trustee
.
The Company covenants that
if:
(a) default
is made in the payment of any installment of interest or Additional Amounts, if any, on any Security of any series and any related
coupon when such interest or Additional Amount becomes due and payable and such default continues for a period of 30 days; or
(b) default
is made in the payment of the principal of (or premium or Make-Whole Amount, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities of such
series and coupons, the whole amount then due and payable on such Securities and coupons for principal (and premium or Make-Whole
Amount, if any) and interest and Additional Amounts, with interest upon any overdue principal (and premium or Make-Whole Amount,
if any) and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installments of interest
or Additional Amounts, if any, at the rate or rates borne by or provided for in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to
pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and
may enforce the same against the Company or any other obligor upon such Securities of such series and collect the moneys adjudged
or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities
of such series, wherever situated.
If an Event of Default
with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any related coupons by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504
Trustee
May File Proofs of Claim
.
In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the Securities of any series shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, premium or Make-Whole Amount, if any, or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise:
(a) to
file and prove a claim for the whole amount, or such lesser amount as may be provided for in the Securities of such series, of
principal (and premium or Make-Whole Amount, if any) and interest and Additional Amounts, if any, owing and unpaid in respect of
the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceeding; and
(b) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is
hereby authorized by each Holder of Securities of such series and coupons to make such payments to the Trustee, and in the event
that the Trustee shall consent, in writing, to the making of such payments directly to the Holders, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee and any predecessor Trustee, their
agents and counsel, and any other amounts due the Trustee or any predecessor Trustee under
Section 606
.
Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security or
coupon any plan of reorganization, arrangement, adjustment or composition affecting the Securities or coupons or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a Security or coupon in any such
proceeding.
Section 505
Trustee
May Enforce Claims Without Possession of Securities or Coupons
.
All rights of action and
claims under this Indenture or any of the Securities or coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect of which such judgment has been recovered.
Section 506
Application
of Money Collected
.
Any money collected by
the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such money on account of principal (or premium or Make-Whole Amount, if any) or any interest and any
Additional Amounts, upon presentation of the Securities or coupons, or both, as the case may be (such presentation, in the case
of Bearer Securities or coupons, to occur only outside the United States), and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment (such
payment, in the case of Bearer Securities or coupons, to occur only outside the United States) of all amounts due the Trustee and
any predecessor Trustee under
Section 606
;
SECOND: To the payment
of the amounts then due and unpaid upon the Securities and coupons for principal (and premium or Make-Whole Amount, if any) and
interest and any Additional Amounts payable, 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 aggregate amounts due and payable on such Securities and coupons for
principal (and premium or Make-Whole Amount, if any), interest and Additional Amounts, respectively; and
THIRD: To the payment of
the remainder, if any, to the Company.
Section 507
Limitation
on Suits
.
No Holder of any Security
of any series or any related coupon shall have any right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that
series;
(b) the
Holders of not less than 25% in principal amount of the Outstanding Securities of that series in the case of any Event of Default
described in
clause (a)
,
(b)
,
(c)
,
(d)
,
(e)
,
(f)
or
(i)
of
Section 501
,
or, in the case of any Event of Default described in
clause (g)
or
(h)
of
Section 501
, the Holders of
not less than 25% in principal amount of all Outstanding Securities, shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
(e) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series in the case of any Event of Default described in
clause (a)
,
(b)
,
(c)
,
(d)
,
(e)
,
(f)
or
(i)
of
Section 501
, or, in the case of any Event
of Default described in
clause (g)
or
(h)
of
Section 501
, the Holders of not less than 25% in principal
amount of all Outstanding Securities; it being understood and intended that no one or more of such Holders shall have any right
in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights
of any other of such Holders in the case of any Event of Default described in
clause (a)
,
(b)
,
(c)
,
(d)
,
(e)
,
(f)
or
(i)
of
Section 501
, or, in the case of any Event of Default described in
clause
(g)
or
(h)
of
Section 501
, the Holders of not less than 25% in principal amount of all Outstanding Securities(it
being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forebearance are
unduly prejudicial to such Holders), or to obtain or to seek to obtain priority or preference over any other of such Holders or
to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such
Holders of Securities of the same series, in the case of any Event of Default described in
clause (a)
,
(b)
,
(c)
,
(d)
,
(e)
,
(f)
or
(i)
of
Section 501
, or, of Holders of all Securities in the case of any
Event of Default described in
clause (g)
or
(h)
of
Section 501
.
Section 508
Unconditional
Right of Holders to Receive Principal, Premium or Make-Whole Amount, if any, Interest and Additional Amounts
.
Notwithstanding any other
provision in this Indenture, the Holder of any Security or coupon shall have the right which is absolute and unconditional to receive
payment of the principal of (and premium or Make-Whole Amount, if any) and (subject to
Section 305
and
Section 307
)
interest on, and any Additional Amounts in respect of, such Security or payment of such coupon on the respective due dates expressed
in such Security or coupon (or, in the case of redemption, on the Redemption Date) and to convert or exchange such Securities in
accordance with
Article Sixteen
to institute suit for the enforcement of any such payment, conversion or exchange and
such rights shall not be impaired without the consent of such Holder.
Section 509
Restoration
of Rights and Remedies
.
If the Trustee or any Holder
of a Security or coupon has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every
such case the Company, the Trustee and the Holders of Securities and coupons shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding has been instituted.
Section 510
Rights
and Remedies Cumulative
.
Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of
Section 306
, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities
or coupons is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511
Delay
or Omission Not Waiver
.
No delay or omission of
the Trustee or of any Holder of any Security or coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or any acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by the Holders of Securities or coupons, as the case may be.
Section 512
Control
by Holders of Securities
.
With respect to the Securities
of any series, the Holders of not less than a majority in principal amount of the Outstanding Securities of such series shall have
the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee relating to or arising under
clause (a)
,
(b)
,
(c)
,
(d)
,
(e)
,
(f)
or
(i)
of
Section 501
; and, with respect to all Securities, the Holders of a majority
in principal amount of all Outstanding Securities 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, not relating to or arising
under
clause (a)
,
(b)
,
(c)
,
(d)
,
(e)
,
(f)
or
(i)
of
Section 501
; provided
that:
(a) such
direction shall not be in conflict with any rule of law or with this Indenture;
(b) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(c) the
Trustee need not take any action which might involve it in personal liability or be unduly prejudicial to the Holders of Securities
of such series not joining therein (but the Trustee shall have no obligation as to the determination of such undue prejudice).
Section 513
Waiver
of Past Defaults
.
The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities
of such series and any related coupons consent to the waiver of any past default hereunder with respect to such series described
in
clause (a)
,
(b)
,
(c)
,
(d)
,
(e)
,
(f)
or
(i)
of
Section 501
(or,
in the case of a default described in
clause (g)
or
(h)
of
Section 501
, the Holders of a majority in
principal amount of all Outstanding Securities may waive any such past default with respect to all series) and its consequences,
except, in each case, a default:
(a) in
the payment of the principal of (or premium or Make-Whole Amount, if any) or interest on or Additional Amounts payable in respect
of any Security of such series or any related coupons; or
(b) in
respect of a covenant or provision hereof which under
Article Nine
cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such
default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent
thereon.
Section 514
Waiver
of Stay or Extension Laws
.
The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 515
Undertaking
for Costs
.
All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in such suit having due regard to the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities, or to any suit instituted
by any Holder for the enforcement of the payment of the principal of (or premium or Make-Whole Amount, if any) or interest on or
Additional Amounts payable with respect to any Security on or after the respective Stated Maturities expressed in such Security
(or in the case of redemption, on or after the Redemption Date).
Article Six
The Trustee
Section 601
Notice
of Defaults
.
Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall transmit in the manner and
to the extent provided in TIA Section 313(c), notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium
or Make-Whole Amount, if any) or interest on or any Additional Amounts with respect to any Security of such series, or in the payment
of any sinking fund installment with respect to the Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in
the interests of the Holders of the Securities and coupons of such series; and provided further that in the case of any default
or breach of the character specified in
Section 501(d)
with respect to the Securities and coupons of such series, no
such notice to Holders shall be given until at least 60 days after the occurrence thereof. For the purpose of this Section, the
term “
default
” means any event which is, or after notice or lapse of time or both would become, an Event of
Default with respect to the Securities of such series.
Section 602
Certain
Rights of Trustee
.
Subject to the provisions
of TIA Section 315(a) through 315(d):
(a) the
Trustee shall perform only such duties as are expressly undertaken by it to perform under this Indenture and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
(b) the
Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document
believed by it to be genuine and to have been signed or presented by the proper party or parties;
(c) any
request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order (other
than delivery of any Security, together with any coupons appertaining thereto, to the Trustee for authentication and delivery pursuant
to
Section 303
which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(d) whenever
in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, conclusively rely upon an Officers’ Certificate;
(e) the
Trustee may consult with counsel of its choice and as a condition to the taking, suffering or omission of any action hereunder
may demand an Opinion of Counsel, and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(f) the
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(g) the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation;
(h) 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;
(i) the
Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture. The Trustee shall not be required to expend or
risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it;
(j) in
no event shall the Trustee be responsible or liable for special, 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;
(k) the
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(l) the
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other
Person employed to act hereunder; and
(m) 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.
Section 603
Not
Responsible for Recitals or Issuance of Securities
.
The recitals contained
herein and in the Securities, except the Trustee’s certificate of authentication, and in any coupons shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or coupons, except
that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform
its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall
be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 604
May
Hold Securities
.
The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with the
Company with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar, Authenticating Agent or such
other agent.
Section 605
Money
Held in Trust
.
Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no
liability for interest on, or investment of, any money received by it hereunder.
Section 606
Compensation
and Reimbursement
.
The Company agrees:
(a) to
pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder, including extraordinary
services rendered in connection with or during the continuation of a default hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express trust);
(b) except
as otherwise expressly provided herein, to reimburse each of the Trustee and any predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by it in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), except to the extent any such expense, disbursement
or advance may be attributable to its gross negligence or bad faith; and
(c) to
indemnify each of the Trustee and any predecessor Trustee and each of their respective directors, officers, agents and employees
for, and to hold each of them harmless against, any loss, damage, claim, liability or expense, arising out of or in connection
with the acceptance or administration of the trust or trusts or the performance of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers
or duties hereunder, or in connection with the provisions of this Section, except to the extent any such loss, liability or expense
may be attributable to its own gross negligence or bad faith.
As security for the performance
of the obligations of the Company under this Section, the Trustee shall have a lien prior to the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (or premium or Make-Whole
Amount, if any) or interest on particular Securities or any coupons.
When the Trustee incurs
expenses or renders services in connection with an Event of Default specified in
Section 501(g)
or
(h)
, the
expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.
The provisions of this
Section shall survive the termination of this Indenture or the resignation or removal of the Trustee.
Section 607
Corporate
Trustee Required; Eligibility; Conflicting Interests
.
There shall at all times
be a Trustee hereunder which shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined capital
and surplus of at least $50,000,000 or is a subsidiary of a corporation which shall be a Person that has a combined capital and
surplus of at least $50,000,000 and which unconditionally guarantees the obligations of the Trustee hereunder. If such Trustee
or Person publishes reports of condition at least annually, pursuant to law or the requirements of Federal, State, Territorial
or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus
of such Trustee or Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 608
Resignation
and Removal; Appointment of Successor
.
(a) No
resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of
Section 609
.
(b) The
Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company.
If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The
Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee and to the Company if at any time:
(i) the
Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at least six months; or
(ii) the
Trustee shall cease to be eligible under
Section 607
and shall fail to resign after written request therefor by the
Company or by any Holder of a Security who has been a bona fide Holder of a Security for at least six months; or
(iii) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then, in any such case, (1) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all Securities, or (2) subject to TIA Section 315(e), any Holder
of a Security who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment
of a successor Trustee or Trustees.
(d) If
the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any
cause with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint
a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be
only one Trustee with respect to the Securities of any particular series). If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed
by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor
Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders
of Securities and accepted appointment in the manner hereinafter provided, any Holder of a Security who has been a bona fide Holder
of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee with respect to Securities of such series.
(e) The
Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any series in the manner provided for notices to the
Holders of Securities in
Section 106
. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 609
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 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 request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of any amounts due and owing to it, its agents or counsel
hereunder, 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, subject nevertheless to its claim, if any, provided for in
Section 606
.
(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, pursuant to
Article Nine
hereof, wherein each successor Trustee shall accept
such appointment and which (1) 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, (2) if the retiring Trustee is not retiring
with respect to all Securities, 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 (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees
of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust
or trusts hereunder administered by any other such Trustee; 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 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, upon payment of any amounts due and owing
to it, its agents or counsel hereunder duly assign, transfer and deliver to such successor Trustee all 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.
Section 610
Merger,
Conversion, Consolidation or Succession to Business
.
Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities or coupons 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
or coupons so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities or coupons.
In case any Securities or coupons shall not have been authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities or coupons, in either its own name or that of its predecessor Trustee, with the full force
and effect which this Indenture provides for the certificate of authentication of the Trustee.
Section 611
Appointment
of Authenticating Agent
.
At any time when any of
the Securities remain Outstanding, the Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption or repayment thereof or pursuant to
Section 306
, 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. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee,
a copy of which instrument shall be promptly furnished to the Company. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be reasonably acceptable to the Company
and, except as may otherwise be provided pursuant to
Section 301
, shall at all times be a bank or trust company or
corporation organized and doing business and in good standing under the laws of the United States of America or of any State or
the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not
less than $25,000,000 and subject to supervision or examination by Federal or State authorities. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. In case at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which
an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or filing of any paper or further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent
for any series of Securities may at any time resign by giving written notice of resignation to the Trustee for such series and
to the Company. The Trustee for any series of Securities may at any time terminate the agency of an Authenticating Agent by giving
written notice of termination to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions
of this Section, the Trustee for such series may appoint a successor Authenticating Agent which shall be reasonably acceptable
to the Company and shall give notice of such appointment to all Holders of Securities of or within the series with respect to which
such Authenticating Agent will serve in the manner set forth in
Section 106
. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent herein. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay
to each Authenticating Agent from time to time reasonable compensation including reimbursement of its reasonable expenses for its
services under this Section.
If an appointment with
respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition
to or in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication substantially in
the following form:
This is one of the Securities
of the series designated therein referred to in the within-mentioned Indenture.
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[_________________________], as Trustee
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By:
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as Authenticating Agent
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By:
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Name:
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Title:
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Article Seven
Holders’ Lists and Reports by Trustee and Company
Section 701
Disclosure
of Names and Addresses of Holders
.
Every Holder of Securities
or coupons, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any Authenticating Agent nor any Paying Agent nor any Security Registrar nor any director, officer, agent or employee of any
of them shall be held accountable by reason of the disclosure of any information as to the names and addresses of the Holders of
Securities or coupons in accordance with TIA Section 312, regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b).
Section 702
Reports
by Trustee
.
Within 60 days after March
15 of each year commencing with the first March 15 after the first issuance of Securities pursuant to this Indenture, the Trustee
shall transmit by mail to all Holders of Securities as provided in TIA Section 313(c) a brief report dated as of such March 15
if and to the extent required by TIA Section 313(a).
Section 703
Reports
by Company
.
(a) The
Company will:
(1) file
with the Trustee, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section
13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant
to either of such Sections, then it will file with the Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(2) file
with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations; and
(3) transmit
by mail to the Holders of Securities, within 30 days after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information, documents and reports required to be filed by the Company pursuant
to paragraphs (1) or (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.
(b) Delivery
of such reports, information and documents to the Trustee in accordance with
Section 703(a)
is for informational purposes
only, and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as
to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee is under no duty to examine
such reports, information or documents to ensure compliance with the provisions of this Indenture or to ascertain the correctness
or otherwise of the information or the statements contained therein. The Trustee is entitled to assume such compliance and correctness
unless a Responsible Officer of the Trustee is informed otherwise.
Section 704
Company
to Furnish Trustee Names and Addresses of Holders
.
The Company will furnish
or cause to be furnished to the Trustee:
(a) semi-annually,
not later than 15 days after the Regular Record Date for interest for each series of Securities, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Registered Securities of such series as of such Regular Record
Date, or if there is no Regular Record Date for interest for such series of Securities, semi-annually, upon such dates as are set
forth in the Board Resolution or indenture supplemental hereto authorizing such series; 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, so long as the Trustee is the Security Registrar, no such lists shall be required to be furnished.
Article Eight
Consolidation, Merger, Sale, Lease or Conveyance
Section 801
Consolidations
and Mergers of Company and Sales, Leases and Conveyances Permitted Subject to Certain Conditions
.
The Company may consolidate
with, or sell, lease or convey all or substantially all of its assets to, or merge with or into any other Person, provided that
in any such case, (a) either the Company shall be the continuing entity, or the successor (if other than the Company) entity shall
be a Person organized and existing under the laws of the United States or a State thereof, or the State of Israel, and such successor
entity shall expressly assume the due and punctual payment of the principal of (and premium or Make-Whole Amount, if any) and any
interest (including all Additional Amounts, if any, payable pursuant to
Section 1007
) on all of the Securities, according
to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to
be performed by the Company by supplemental indenture, complying with
Article Nine
hereof, satisfactory to the Trustee,
executed and delivered to the Trustee by such Person and (b) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as a result thereof as having been incurred by the Company
or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or the lapse of time,
or both, would become an Event of Default, shall have occurred and be continuing.
Section 802
Rights
and Duties of Successor Corporation
.
In case of any such consolidation,
merger, sale, lease or conveyance and upon any such assumption by the successor entity, such successor entity shall succeed to
and be substituted for the Company, with the same effect as if it had been named herein as the party of the first part, and the
predecessor entity, except in the event of a lease, shall be relieved of any further obligation under this Indenture and the Securities.
Such successor entity thereupon may cause to be signed, and may issue either in its own name or in the name of the Company, any
or all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee;
and, upon the order of such successor entity, instead of the Company, and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for authentication, and any Securities which such successor
entity thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Securities so issued shall in
all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation,
merger, sale, lease or conveyance, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter
to be issued as may be appropriate.
Section 803
Officers’
Certificate and Opinion of Counsel
.
Any consolidation, merger,
sale, lease or conveyance permitted under
Section 801
is also subject to the condition that the Trustee receive an
Officers’ Certificate and an Opinion of Counsel to the effect that any such consolidation, merger, sale, lease or conveyance,
and the assumption by any successor entity, complies with the provisions of this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Article Nine
Supplemental Indentures
Section 901
Supplemental
Indentures Without Consent of Holders
.
Without the consent of
any Holders of Securities or coupons, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(a) to
evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company
herein and in the Securities contained; or
(b) to
add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and, if such covenants are
to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred upon the Company; or
(c) to
add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating that such Events of Default are expressly being included
solely for the benefit of such series); provided, however, that in respect of any such additional Events of Default such supplemental
indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of a majority in aggregate principal amount of that or those
series of Securities to which such additional Events of Default apply to waive such default; or
(d) to
add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal of or any premium, Make-Whole Amount or Interest on Bearer
Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued
in exchange for Bearer Securities of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated
form, provided that any such action shall not adversely affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(e) to
add to, change or eliminate any of the provisions of this Indenture in respect of any series of Securities, provided that any such
addition, change or elimination shall (1) neither (i) apply to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision, nor (ii) modify the rights of the Holder of any such Security
with respect to such provision; or (2) become effective only when there is no Outstanding Security; or
(f) to
secure the Securities; or
(g) to
establish the form or terms of Securities of any series and any related coupons as permitted by
Section 201
and
Section 301
,
including (1) the provisions and procedures relating to Securities convertible into or exchangeable for other securities or property
of the Company or (2) the addition or modification of any of the provisions of this Indenture as shall be necessary or desirable
to provide for or facilitate the guarantee of such Securities by one or more Guarantors; or
(h) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee; or
(i) to
make provision for the subordination of Securities of a series or to make provision with respect to the conversion or exchange
rights of Holders pursuant to the requirements of
Article Sixteen
, including providing for the conversion or exchange
of the Securities into any security or property of the Company or any other issuer; or
(j) to
cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture or to make any other changes, provided that in each case, such provisions shall not adversely
affect the interests of the Holders of Securities of any series or any related coupons in any material respect; or
(k) to
close this Indenture with respect to the authentication and delivery of additional series of Securities or to qualify, or maintain
qualification of, this Indenture under the TIA; or
(l) to
amend Schedule I attached hereto to add and/or remove one or more Guarantors; provided, that no such amendment shall remove any
Guarantor that has guaranteed any Outstanding Securities hereunder; or
(m) to
supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of Securities pursuant to
Section 401
,
Section 1402
and
Section 1403
;
provided in each case that any such action shall not adversely affect the interests of the Holders of Securities of such series
and any related coupons or any other series of Securities in any material respect.
Section 902
Supplemental
Indentures With Consent of Holders
.
With the consent of the
Holders of not less than a majority in principal amount of all Outstanding Securities affected by such supplemental indenture,
by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by or pursuant to a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby:
(a) change
the Stated Maturity of the principal of (or premium or Make-Whole Amount, if any, on) or any installment of principal of or interest
on, any Security; or reduce the principal amount thereof or the rate or amount of interest thereon or any Additional Amounts payable
in respect thereof, or any premium or Make-Whole Amount payable upon the redemption thereof, or change any obligation of the Company
to pay Additional Amounts pursuant to
Section 1007
(except as contemplated by
Section 801
and permitted
by
Section 901(a)
), or reduce the amount of the principal of an Original Issue Discount Security or Make-Whole Amount,
if any, that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502
or the amount thereof provable in bankruptcy pursuant to
Section 504
, or adversely affect any right of repayment at
the option of the Holder of any Security, or change any Place of Payment where, or the currency or currencies, currency unit or
units or composite currency or currencies in which, the principal of any Security or any premium or Make-Whole Amount or any Additional
Amounts payable in respect thereof or the interest thereon is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment at the option of the Holder,
on or after the Redemption Date or the Repayment Date, as the case may be); or
(b) reduce
the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for any waiver with respect to such series (or compliance
with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture,
or reduce the requirements of
Section 1504
for quorum or voting; or
(c) modify
any of the provisions of this Section,
Section 513
or
Section 1008
, except to increase the required percentage
to effect such action or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby; or
(d) make
any change that adversely affects the right to convert or exchange any Security as provided in
Article Sixteen
or pursuant
to
Section 301
(except as permitted by
Section 901(i)
) or decrease the conversion or exchange rate or increase
the conversion or exchange price of any such Security; or
(e) modify
the Guarantees in any manner adverse to the Holders or make any amendment referred to in the proviso to
Section 901(l)
.
It shall not be necessary
for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
A supplemental indenture
which changes or eliminates any covenant or other provision of this Indenture which has expressly been included for the benefit
of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect
to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities
of any other series.
Section 903
Execution
of Supplemental Indentures
.
In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Officers’
Certificate and Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this
Indenture and that all conditions precedent to the execution of such supplemental indenture have been complied with. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise.
Section 904
Effect
of Supplemental Indentures
.
Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder and of any coupon appertaining thereto shall be bound thereby.
Section 905
Conformity
with Trust Indenture Act
.
Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 906
Reference
in Securities to Supplemental Indentures
.
Securities of any series
authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company,
to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered (which delivery,
in the case of Bearer Securities, shall occur only outside the United States) by the Trustee in exchange for Outstanding Securities
of such series.
Section 907
Notice
of Supplemental Indentures
.
Promptly after the execution
by the Company and the Trustee of any supplemental indenture pursuant to the provisions of
Section 902
, the Company
shall give notice thereof to the Holders of each Outstanding Security affected, in the manner provided for in
Section 106
,
setting forth in general terms the substance of such supplemental indenture.
Article Ten
Covenants
Section 1001
Payment
of Principal, Premium or Make-Whole Amount, if any, Interest and Additional Amounts
.
The Company covenants and
agrees for the benefit of the Holders of each series of Securities that it will duly and punctually pay the principal of (and premium
or Make-Whole Amount, if any) and interest on and any Additional Amounts payable in respect of the Securities of that series in
accordance with the terms of such series of Securities, any coupons appertaining thereto and this Indenture. Unless otherwise specified
as contemplated by
Section 301
with respect to any series of Securities, any interest due on and any Additional Amounts
payable in respect of Bearer Securities on or before Maturity, other than Additional Amounts, if any, payable as provided in
Section 1007
in respect of principal of (or premium or Make-Whole Amount, if any, on) such a Security, shall be payable only upon presentation
and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature. Unless otherwise
specified with respect to Securities of any series pursuant to
Section 301
, at the option of the Company, all payments
of principal may be paid by check to the registered Holder of the Registered Security or other person entitled thereto against
surrender of such Security.
Section 1002
Maintenance
of Office or Agency
.
If Securities of a series
are issuable only as Registered Securities, the Company shall maintain in each Place of Payment for any series of Securities an
office or agency where Securities of that series may be presented or surrendered for payment or conversion, where Securities of
that series may be surrendered for registration of transfer or exchange, where Securities of that series may be converted or exchanged
in accordance with
Article Sixteen
and where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company will
maintain: (a) in the Borough of Manhattan, the City of New York, an office or agency where any Registered Securities of that series
may be presented or surrendered for payment or conversion, where any Registered Securities of that series may be surrendered for
exchange, where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related coupons may be presented or surrendered for payment or conversion
in the circumstances described in the following paragraph (and not otherwise); (b) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment (including payment of any Additional Amounts payable
on Securities of that series pursuant to
Section 1007
) or conversion; provided, however, that if the Securities of
that series are listed on the Luxembourg Stock Exchange, The International Stock Exchange or any other stock exchange located outside
the United States and such stock exchange shall so require, the Company will maintain a Paying Agent for the Securities of that
series in Luxembourg, London or any other required city located outside the United States, as the case may be, so long as the Securities
of that series are listed on such exchange; and (c) subject to any laws or regulations applicable thereto, in each Place of Payment
for that series located outside the United States an office or agency where any Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of each such office or agency. 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,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, except that Bearer Securities
of that series and the related coupons may be presented and surrendered for payment (including payment of any Additional Amounts
payable on Bearer Securities of that series pursuant to
Section 1007
) at the offices specified in the Security, in
London, England, and the Company hereby appoints the same as its agent to receive such respective presentations, surrenders, notices
and demands.
Unless otherwise specified
with respect to any Securities pursuant to
Section 301
, no payment of principal, premium, Make-Whole Amount or interest
on or Additional Amounts in respect of Bearer Securities shall be made at any office or agency of the Company in the United States
or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United
States; provided, however, that, if the Securities of a series are payable in Dollars, payment of principal of and any premium
and interest on any Bearer Security (including any Additional Amounts or Make-Whole Amount payable on Securities of such series
pursuant to
Section 1007
) shall be made at the office of the Company’s Paying Agent in the Borough of Manhattan,
the City of New York, if (but only if) payment in Dollars of the full amount of such principal, premium, interest, Additional Amounts
or Make-Whole Amount, as the case may be, at all offices or agencies outside the United States maintained for the purpose by the
Company in accordance with this Indenture, is illegal or effectively precluded by exchange controls or other similar restrictions.
The Company may from time
to time designate one or more other offices or agencies where the Securities of one or more series and related coupons, if any,
may be presented or surrendered for any or all of such purposes, and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other
office or agency.
Unless otherwise specified
with respect to any Securities pursuant to
Section 301
, if and so long as the Securities of any series are denominated
in a Foreign Currency or may be payable in a Foreign Currency, or so long as it is required under any other provision of the Indenture,
then the Company will maintain with respect to each such series of Securities, or as so required, at least one exchange rate agent.
Section 1003
Money
for Securities Payments to Be Held in Trust
.
If the Company shall at
any time act as its own Paying Agent with respect to any series of any Securities and any related coupons, it will, on or before
each due date of the principal of (and premium or Make-Whole Amount, if any), or interest on or Additional Amounts in respect of,
any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the
currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to
Section 301
for the Securities of such series) sufficient to pay the principal
(and premium or Make-Whole Amount, if any) or interest or Additional Amounts so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee, in writing, of its action or failure
so to act.
Whenever the Company shall
have one or more Paying Agents for any series of Securities and any related coupons, it will, on or before each due date of the
principal of (and premium or Make-Whole Amount, if any), or interest on or Additional Amounts in respect of, any Securities of
that series, deposit with a Paying Agent a sum (in the currency or currencies, currency unit or units or composite currency or
currencies described in the preceding paragraph) sufficient to pay the principal (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal,
premium, Make-Whole Amount or interest or Additional Amounts and (unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee, in writing, of its action or failure so to act.
The Company will cause
each Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(a) hold
all sums held by it for the payment of principal of (and premium or Make-Whole Amount, if any) or interest on Securities or Additional
Amounts in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(b) give
the Trustee notice of any default by the Company (or any other obligor upon the Securities) in the making of any such payment of
principal (and premium or Make-Whole Amount, if any) or interest or Additional Amounts; and
(c) at
any time during the continuance of any such default upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
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 by Company
Order 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 trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided
in the Securities of any series, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust
for the payment of the principal of (and premium or Make-Whole Amount, if any) or interest on, or any Additional Amounts in respect
of, any Security of any series and remaining unclaimed for two years after such principal (and premium or Make-Whole Amount, if
any), interest or Additional Amounts has become due and payable shall be paid to the Company upon Company Request or (if then held
by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment of such principal of (and premium or Make-Whole Amount, if any) or interest on,
or any Additional Amounts in respect of, any Security, without interest thereon, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause
to be published once, in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will
be repaid to the Company.
Section 1004
(Omitted)
.
Section 1005
Provision
of Financial Information
.
Whether or not the Company
is subject to Section 13 or 15(d) of the Exchange Act, the Company will, to the extent permitted under the Exchange Act, file with
the Commission the annual reports and other documents which the Company would have been required to file with the Commission pursuant
to such Section 13 or 15(d) (the “
Financial Statements
”) if the Company were so subject, such documents to be
filed with the Commission on or prior to the respective dates (the “
Required Filing Dates
”) by which the Company
would have been required so to file such documents if the Company were so subject.
The Company will also in
any event (a) within 15 days of each Required Filing Date (1) transmit by mail to all Holders, as their names and addresses appear
in the Security Register, without cost to such Holders, copies of the annual reports which the Company would have been required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company were subject to such Sections, and
(2) file with the Trustee copies of annual reports and other documents which the Company would have been required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company were subject to such Sections, and (b) if filing
such documents by the Company with the Commission is not permitted under the Exchange Act, promptly upon written request and payment
of the reasonable cost of duplication and delivery, supply copies of such documents to any prospective Holder.
Section 1006
Statement
as to Compliance
.
The Company and the Guarantors
will deliver to the Trustee within 120 days after the end of each fiscal year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting officer of each of the Company and each Guarantor as to his or her
knowledge of the Company’s and each Guarantor’s compliance with all conditions and covenants under this Indenture and,
in the event of any noncompliance, specifying such noncompliance and the nature and status thereof. For purposes of this
Section 1006
,
such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.
Section 1007
Additional
Amounts
.
If any Securities of a
series provide for the payment of Additional Amounts, the Company will pay to the Holder of any Security of such series or any
coupon appertaining thereto Additional Amounts as may be specified as contemplated by
Section 301
. Whenever in this
Indenture there is mentioned, in any context except in the case of
Section 502(a)
, the payment of the principal of
or any premium, Make-Whole Amount or interest on, or in respect of, any Security of any series or payment of any related coupon
or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention
of the payment of Additional Amounts provided by the terms of such series established pursuant to
Section 301
to the
extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms and express
mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional
Amounts in those provisions hereof where such express mention is not made.
Except as otherwise specified
as contemplated by
Section 301
, if the Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least
10 days prior to each date of payment of principal and any premium or Make-Whole Amount or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company will furnish the Trustee
and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers’ Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and any premium or interest
on the Securities of that series shall be made to Holders of Securities of that series or any related coupons who are not United
States persons without withholding for or on account of any tax, assessment or other governmental charge described in the Securities
of or within the series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country
the amount, if any, required to be withheld on such payments to such Holders of Securities of that series or related coupons and
the Company will pay to the Trustee or such Paying Agent the Additional Amounts, if any, required by the terms of such Securities.
In the event that the Trustee or any Paying Agent, as the case may be, shall not so receive the abovementioned certificate, then
the Trustee or such Paying Agent shall be entitled (a) to assume that no such withholding or deduction is required with respect
to any payment of principal or interest with respect to any Securities of a series or related coupons until it shall have received
a certificate advising otherwise and (b) to make all payments of principal and interest with respect to the Securities of a series
or related coupons without withholding or deductions until otherwise advised. The Company covenants to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without gross negligence
or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’
Certificate furnished pursuant to this Section or in reliance on the Company’s not furnishing such an Officers’ Certificate.
Section 1008
Waiver
of Certain Covenants
.
The Company and the Guarantors
may omit in any particular instance to comply with any term, provision or condition set forth in
Section 1005
and with
any other term, provision or condition with respect to the Securities of any series specified in accordance with
Section 301
(except any such term, provision or condition which could not be amended without the consent of all Holders of Securities of such
series pursuant to
Section 902
), if before or after the time for such compliance the Holders of at least a majority
in principal amount of all Outstanding Securities of such series, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant
or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company,
the Guarantors and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and
effect.
Article Eleven
Redemption of Securities
Section 1101
Applicability
of Article
.
Securities of any series
which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified
as contemplated by
Section 301
for Securities of any series) in accordance with this Article.
Section 1102
Election
to Redeem; Notice to Trustee
.
The election of the Company
to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Securities of any series, the Company shall, at least 60 days prior to the giving of the notice
of redemption in
Section 1104
(unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series to be redeemed. The Company shall deliver an Officers’
Certificate and Opinion of Counsel to the Trustee on or prior to each Redemption Date.
Section 1103
Selection
by Trustee of Securities to Be Redeemed
.
If less than all the Securities
of any series issued on the same day with the same terms are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series issued
on such date with the same terms not previously called for redemption, by such method as the Trustee shall deem fair and appropriate,
subject to applicable law, and which may provide for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series
of a denomination larger than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly
notify the Company and the Security Registrar (if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
Section 1104
Notice
of Redemption
.
Notice of redemption shall
be given in the manner provided in
Section 106
, not less than 30 days nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified by the terms of such series established pursuant to
Section 301
, to each
Holder of Securities to be redeemed, but failure to give such notice in the manner herein provided to the Holder of any Security
designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity
of the proceedings for the redemption of any other such Security or portion thereof.
Any notice that is mailed
to the Holders of Registered Securities in the manner herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives the notice.
All notices of redemption
shall state:
(a) the
Redemption Date;
(b) the
Redemption Price, accrued interest to the Redemption Date payable as provided in
Section 1106
, if any, and Additional
Amounts, if any;
(c) if
less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Security or Securities to be redeemed;
(d) in
case any Security is to be redeemed in part only, that on and after the Redemption Date, upon surrender of such Security, the holder
will receive, without a charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining
unredeemed;
(e) that
on the Redemption Date the Redemption Price and accrued interest to the Redemption Date payable as provided in
Section 1106
,
if any, will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date;
(f) the
Place or Places of Payment (which, in the case of Bearer Securities, shall be outside the United States) where such Securities,
together in the case of Bearer Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment of the Redemption Price and accrued interest, if any, or for conversion;
(g) that
the redemption is for a sinking fund, if such is the case;
(h) that,
unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied
by all coupons maturing subsequent to the date fixed for redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity satisfactory to the Company, the Trustee for such series and any
Paying Agent is furnished;
(i) if
Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not subject to the redemption on this Redemption Date pursuant
to
Section 305
or otherwise, the last date, as determined by the Company, on which such exchanges may be made;
(j) the
CUSIP number of such Security, if any, provided that neither the Company nor the Trustee shall have any responsibility for any
such CUSIP number; and
(k) if
applicable, that a Holder of Securities who desires to convert Securities to be redeemed must satisfy the requirements for conversion
contained in such Securities, the then existing conversion price or rate and the date and time when the option to convert shall
expire.
Notice of redemption of
Securities to be redeemed shall be prepared by the Company and shall be given by the Company or, at the Company’s request,
by the Trustee in the name and at the expense of the Company.
Section 1105
Deposit
of Redemption Price
.
On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
which it may not do in the case of a sinking fund payment under
Article Twelve
, segregate and hold in trust as provided
in
Section 1003
) an amount of money in the currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as otherwise specified pursuant to
Section 301
for the Securities of such series) sufficient to pay on the Redemption Date the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities or portions thereof which are to be redeemed on
that date.
Section 1106
Securities
Payable on Redemption Date
.
Notice of redemption having
been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified in the currency or currencies, currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301
for the Securities of
such series) (together with accrued interest, if any, to the Redemption Date), and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued interest) such Securities shall, if the same were interest-bearing,
cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for redemption in accordance with said notice, together
with all coupons, if any, appertaining thereto maturing after the Redemption Date, such Security shall be paid by the Company at
the Redemption Price, together with accrued interest, if any, to the Redemption Date; provided, however, that installments of interest
on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in
Section 1002
) and, unless otherwise specified as contemplated
by
Section 301
, only upon presentation and surrender of coupons for such interest; and provided further that except
as otherwise provided with respect to Securities convertible into Capital Stock, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the relevant record dates according to their terms and the
provisions of
Section 307
.
If any Bearer Security
surrendered for redemption shall not be accompanied by all appurtenant coupons maturing after the Redemption Date, such Security
may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender
of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States (except as otherwise provided in
Section 1002
)
and, unless otherwise specified as contemplated by
Section 301
, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal, (and premium or
Make-Whole Amount, if any) shall, until paid, bear interest from the Redemption Date at the rate borne by the Security.
Section 1107
Securities
Redeemed in Part
.
Any Security which is to
be redeemed only in part (pursuant to the provisions of this Article or of
Article Twelve
) shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing)
and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security without service charge
a new Security or Securities of the same series, of any authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
Article Twelve
Sinking Funds
Section 1201
Applicability
of Article
.
The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated
by
Section 301
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 such Securities of any series
is herein referred to as an “
optional sinking fund payment.
” If provided for by the terms of any Securities
of any series, the cash amount of any mandatory sinking fund payment may be subject to reduction as provided in
Section 1202
.
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 1202
Satisfaction
of Sinking Fund Payments with Securities
.
The Company may, in satisfaction
of all or any part of any mandatory sinking fund payment with respect to the Securities of a series, (a) deliver Outstanding Securities
of such series (other than any previously called for redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto and (b) apply as a credit Securities of such series which 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, as provided for by the terms of such Securities, or which have otherwise
been acquired by the Company; provided that such Securities so delivered or applied as a credit have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee at the applicable Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall
be reduced accordingly.
Section 1203
Redemption
of Securities for Sinking Fund
.
Not less than 60 days prior
to each sinking fund payment date for Securities of any series, the Company will deliver to the Trustee an Officers’ Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series,
the portion thereof, if any, which is to be satisfied by payment of cash in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant
to
Section 301
for the Securities of such series) and the portion thereof, if any, which is to be satisfied by delivering
and crediting Securities of that series pursuant to
Section 1202
, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also deliver to the Trustee any Securities to be so delivered and
credited. If such Officers’ Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the amount therein specified. 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 1103
and cause notice of the redemption thereof, which shall be prepared by the
Company, to be given in the name of and at the expense of the Company in the manner provided in
Section 1104
. Such
notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in
Section 1106
and
Section 1107
.
Article Thirteen
Repayment at the Option of Holders
Section 1301
Applicability
of Article
.
Repayment of Securities
of any series before their Stated Maturity at the option of Holders thereof shall be made in accordance with the terms of such
Securities, if any, and (except as otherwise specified by the terms of such series established pursuant to
Section 301
)
in accordance with this Article.
Section 1302
Repayment
of Securities
.
Securities of any series
subject to repayment in whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms of such
Securities, be repaid at a price equal to the principal amount thereon, together with interest, if any, thereof accrued to the
Repayment Date specified in or pursuant to the terms of such Securities. The Company covenants that on or before the Repayment
Date it will deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and
hold in trust as provided in
Section 1003
) an amount of money in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant
to
Section 301
for the Securities of such series) sufficient to pay the principal (or, if so provided by the terms
of the Securities of any series, a percentage of the principal) of, and (except if the Repayment Date shall be an Interest Payment
Date) accrued interest on, all the Securities or portion thereof, as the case may be, to be repaid on such date.
Section 1303
Exercise
of Option
.
Securities of any series
subject to repayment at the option of the Holders thereof will contain an “
Option to Elect Repayment
” form on
the reverse of such Securities. In order for any Security to be repaid at the option of the Holder, the Trustee must receive at
the Place of Payment therefor specified in the terms of such Security (or at such other place or places of which the Company shall
from time to time notify the Holders of such Securities) not earlier than 60 days nor later than 30 days prior to the Repayment
Date (a) the Security so providing for such repayment together with the “
Option to Elect Repayment
” form on
the reverse thereof duly completed by the Holder (or by the Holder’ attorney duly authorized in writing) or (b) a telex,
facsimile transmission or a letter from a member of a national securities exchange, or the Financial Industry Regulatory Authority,
or a commercial bank or trust company in the United States setting forth the name of the Holder of the Security, the principal
amount of the Security, the principal amount of the Security to be repaid, the CUSIP number, if any, or a description of the tenor
and terms of the Security, a statement that the option to elect repayment is being exercised thereby and a guarantee that the Security
to be repaid, together with the duly completed form entitled “
Option to Elect Repayment
” on the reverse of the
Security, will be received by the Trustee not later than the fifth Business Day after the date of such telex, facsimile transmission
or letter; provided, however, that such telex, facsimile transmission or letter shall only be effective if such Security and form
duly completed are received by the Trustee by such fifth Business Day. If less than the entire principal amount of such Security
is to be repaid in accordance with the terms of such Security, the principal amount of such Security to be repaid, in increments
of the minimum denomination for Securities of such series, and the denomination or denominations of the Security or Securities
to be issued to the Holder for the portion of the principal amount of such Security surrendered that is not to be repaid, must
be specified. The principal amount of any Security providing for repayment at the option of the Holder thereof may not be repaid
in part if, following such repayment, the unpaid principal amount of such Security would be less than the minimum authorized denomination
of Securities of or within the series of which such Security to be repaid is a part. Except as otherwise may be provided by the
terms of any Security providing for repayment at the option of the Holder thereof, exercise of the repayment option by the Holder
shall be irrevocable unless waived by the Company.
Section 1304
When
Securities Presented for Repayment Become Due and Payable
.
If Securities of any series
providing for repayment at the option of the Holders thereof shall have been surrendered as provided in this Article and as provided
by or pursuant to the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date therein specified, and on and after such Repayment
Date (unless the Company shall default in the payment of such Securities on such Repayment Date) such Securities shall, if the
same were interest bearing, cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to
be repaid, except to the extent provided below, shall be void. Upon surrender of any such Security for repayment in accordance
with such provisions, together with all coupons, if any, appertaining thereto maturing after the Repayment Date, the principal
amount of such security so to be repaid shall be paid by the Company, together with accrued interest, if any, to the Repayment
Date; provided, however, that coupons whose Stated Maturity is on or prior to the Repayment Date shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002
) and, unless otherwise specified
pursuant to
Section 301
, only upon presentation and surrender of such coupons; and provided further that, in the case
of Registered Securities, installments of interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall be
payable (but without interest thereon, unless the Company shall default in the payment thereof) to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of business on the relevant record dates according to their
terms and the provisions of
Section 307
.
If any Bearer Security
surrendered for repayment shall not be accompanied by all appurtenant coupons maturing after the Repayment Date, such Security
may be paid after deducting from the amount payment therefor as provided in
Section 1302
an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee
if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless.
If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made as provided in the preceding sentence, such Holder shall be entitled to receive the amount
so deducted; provided, however, that interest represented by coupons shall be payable only at an office or agency located outside
the United States (except as otherwise provided in
Section 1002
) and, unless otherwise specified as contemplated by
Section 301
, only upon presentation and surrender of those coupons. If the principal amount of any Security surrendered
for repayment shall not be so repaid upon surrender thereof, such principal amount (together with interest, if any, thereon accrued
to such Repayment Date) shall, until paid, bear interest from the Repayment Date at the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) set forth in such Security.
Section 1305
Securities
Repaid in Part
.
Upon surrender of any Registered
Security which is to be repaid in part only, the Company shall execute and the Trustee shall authenticate and deliver to the Holder
of such Security, without service charge and at the expense of the Company, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an aggregate principal amount equal to and in exchange for the
portion of the principal of such Security so surrendered which is not to be repaid.
Article Fourteen
Defeasance and Covenant Defeasance
Section 1401
Applicability
of Article; Company’s Option to Effect Defeasance or Covenant Defeasance
.
If, pursuant to
Section 301
,
provision is made for either or both of (a) defeasance of the Securities of or within a series under
Section 1402
or
(b) covenant defeasance of the Securities of or within a series under
Section 1403
to be applicable to the Securities
of any series, then the provisions of such Section or Sections, as the case may be, together with the other provisions of this
Article (with such modifications thereto as may be specified pursuant to
Section 301
with respect to any Securities),
shall be applicable to such Securities and any coupons appertaining thereto, and the Company may at its option by Board Resolution
at any time, with respect to such Securities and any coupons appertaining thereto, elect to defease such Outstanding Securities
and any coupons appertaining thereto pursuant to
Section 1402
(if applicable) or
Section 1403
(if applicable)
upon compliance with the conditions set forth below in this Article.
Section 1402
Defeasance
and Discharge
.
Upon the Company’s
exercise of the above option applicable to this Section with respect to any Securities of or within a series, the Company and the
Guarantors shall be deemed to have been discharged from its obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in
Section 1404
are satisfied (hereinafter, “
defeasance
”).
For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented
by such Outstanding Securities and any coupons appertaining thereto, which shall thereafter be deemed to be “
Outstanding
”
only for the purposes of
Section 1405
and the other Sections of this Indenture referred to in clauses (A) and (B) below,
and to have satisfied all of its other obligations under such Securities and any coupons appertaining thereto and this Indenture
insofar as such Securities and any coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of such Outstanding Securities and any coupons appertaining thereto to receive,
solely from the trust fund described in
Section 1404
and as more fully set forth in such Section, payments in respect
of the principal of (and premium or Make-Whole Amount, if any) and interest, if any, on such Securities and any coupons appertaining
thereto when such payments are due, (B) the Company’s obligations with respect to such Securities under
Sections 305
,
306
,
1002
and
1003
and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated
by
Section 1007
, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (D) this Article.
Subject to compliance with this
Article Fourteen
, the Company may exercise its option under this Section notwithstanding
the prior exercise of its option under
Section 1403
with respect to such Securities and any coupons appertaining thereto.
Section 1403
Covenant
Defeasance
.
Upon the Company’s
exercise of the above option applicable to this Section with respect to any Securities of or within a series, the Company and the
Guarantors shall be released from its obligations under
Section 1005
and, if specified pursuant to
Section 301
,
its obligations under any other covenant, with respect to such Outstanding Securities and any coupons appertaining thereto on and
after the date the conditions set forth in
Section 1404
are satisfied (hereinafter, “
covenant defeasance
”),
and such Securities and any coupons appertaining thereto shall thereafter be deemed to be not “
Outstanding
”
for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection
with
Section 1005
or such other covenant, but shall continue to be deemed “
Outstanding
” for all
other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities and
any coupons appertaining thereto, the Company may omit to comply with and shall have no liability in respect of any term, condition
or limitation set forth in any such Section or such other covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant
to any other provision herein or in any other document and such omission to comply shall not constitute a default or an Event of
Default under
Section 501(d)
or
Section 501(i)
or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and such Securities and any coupons appertaining thereto shall be unaffected thereby.
Section 1404
Conditions
to Defeasance or Covenant Defeasance
.
The following shall be
the conditions to application of
Section 1402
or
Section 1403
to any Outstanding Securities of or within
a series and any coupons appertaining thereto:
(a) The
Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements
of
Section 607
who shall agree to comply with the provisions of this
Article Fourteen
applicable to it)
as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any coupons appertaining thereto, (1) an amount in such currency, currencies
or currency unit in which such Securities and any coupons appertaining thereto are then specified as payable at Stated Maturity,
or (2) Government Obligations applicable to such Securities and coupons appertaining thereto (determined on the basis of the currency,
currencies or currency unit in which such Securities and coupons appertaining thereto are then specified as payable at Stated Maturity)
which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment of principal of (and premium or Make-Whole Amount, if any) and interest,
if any, on such Securities and any coupons appertaining thereto, money in an amount, or (3) a combination thereof in an amount,
sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium
or Make-Whole Amount, if any) and interest, if any, on such Outstanding Securities and any coupons appertaining thereto on the
Stated Maturity of such principal or installment of principal or interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any coupons appertaining thereto on the day on which such payments are due
and payable in accordance with the terms of this Indenture and of such Securities and any coupons appertaining thereto; provided,
that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Obligations to said
payments with respect to such Securities. Before such a deposit, the Company may give to the Trustee, in accordance with
Section 1102
hereof, a notice of its election to redeem all or any portion of such Outstanding Securities at a future date in accordance with
the terms of the Securities of such series and
Article Eleven
hereof, which notice shall be irrevocable. Such irrevocable
redemption notice, if given, shall be given effect in applying the foregoing.
(b) Such
defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party or by which it is bound (and shall not cause the Trustee
to have a conflicting interest pursuant to Section 310(b) of the TIA with respect to any Security of the Company).
(c) No
Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing on the date of such deposit or, insofar as
Section 501(g)
and
Section 501(h)
are concerned, at any time during the period ending on the 91st day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(d) In
the case of an election under
Section 1402
, the Company shall have delivered to the Trustee an Opinion of Counsel stating
that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (2) since the
date of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance
had not occurred.
(e) In
the case of an election under
Section 1403
, the Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Outstanding Securities and any coupons appertaining thereto will not recognize income, gain
or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.
(f) The
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under
Section 1402
or the covenant defeasance under
Section 1403
(as the case
may be) have been complied with and an Opinion of Counsel to the effect that either (1) as a result of a deposit pursuant to subsection
(a) above and the related exercise of the Company’s option under
Section 1402
or
Section 1403
(as
the case may be) registration is not required under the Investment Company Act of 1940, as amended, by the Company, with respect
to the trust funds representing such deposit or by the Trustee for such trust funds or (2) all necessary registrations under said
Act have been effected.
(g) After
the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally.
(h) Notwithstanding
any other provisions of this Section, such defeasance or covenant defeasance shall be effected in compliance with any additional
or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to
Section 301
.
Section 1405
Deposited
Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions
.
Subject to the provisions
of the last paragraph of
Section 1003
, all money and Government Obligations (or other property as may be provided pursuant
to
Section 301
) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this
Section 1405
, the “
Trustee
”) pursuant to
Section 1404
in respect
of any Outstanding Securities of any series and any coupons appertaining thereto shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and any coupons appertaining thereto and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities and any coupons appertaining thereto of all sums due and to become due thereon in respect of principal
(and premium or Make-Whole Amount, if any) and interest and Additional Amounts, if any, but such money need not be segregated from
other funds except to the extent required by law.
Unless otherwise specified
with respect to any Security pursuant to
Section 301
, if, after a deposit referred to in
Section 1404(a)
has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant
to
Section 301
or the terms of such Security to receive payment in a currency or currency unit other than that in which
the deposit pursuant to
Section 1404(a)
has been made in respect of such Security, or (b) a Conversion Event occurs
in respect of the currency or currency unit in which the deposit pursuant to
Section 1404(a)
has been made, the indebtedness
represented by such Security and any coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium or Make-Whole Amount, if any), and interest, if any, on such Security
as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such
election) the amount or other property deposited in respect of such Security into the currency or currency unit in which such Security
becomes payable as a result of such election or Conversion Event based on the applicable market exchange rate for such currency
or currency unit in effect on the second Business Day prior to each payment date, except, with respect to a Conversion Event, for
such currency or currency unit in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited
pursuant to
Section 1404
or the principal and interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the Holders of such Outstanding Securities and any coupons appertaining thereto.
Anything in this Article
to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money
or Government Obligations (or other property and any proceeds therefrom) held by it as provided in
Section 1404
which,
in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered
to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant
defeasance, as applicable, in accordance with this Article.
Section 1406
Reinstatement
.
If the Trustee or Paying
Agent is unable to apply any money in accordance with
Section 1405
with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then
the Company’s obligations under this Indenture and such Securities and any related coupons shall be revived and reinstated
as though no deposit had occurred pursuant to
Section 1402
or
1403
, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 1405
; provided, however, that
if the Company makes any payment of principal of (or premium, if any) or interest, if any, on any such Security or any related
coupon following the reinstatement of its obligations, if any, on any such Security or any related coupon following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities and any related coupons to
receive such payment from the money held by the Trustee or Paying Agent.
Article Fifteen
Meetings of Holders of Securities
Section 1501
Purposes
for Which Meetings May Be Called
.
A meeting of Holders of
Securities of any series may be called at any time and from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken
by Holders of Securities of such series.
Section 1502
Call,
Notice and Place of Meetings
.
(a) The
Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in
Section 1501
,
to be held at such time and at such place in the Borough of Manhattan, the City of New York, or in London as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in
Section 106
,
not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In
case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any
purpose specified in
Section 1501
, by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or
the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place
in the Borough of Manhattan, the City of New York, or in London for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection
(a)
of this Section.
Section 1503
Persons
Entitled to Vote at Meetings
.
To be entitled to vote
at any meeting of Holders of Securities of any series, a Person shall be (a) a Holder of one or more Outstanding Securities of
such series, or (b) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding
Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its counsel.
Section 1504
Quorum;
Action
.
The Persons entitled to
vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders
of Securities of such series; provided, however, that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of not less than a specified percentage in principal
amount of the Outstanding Securities of a series, the Persons entitled to vote such specified percentage in principal amount of
the Outstanding Securities of such series shall constitute a quorum. In the absence of a quorum within 30 minutes after the time
appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment
of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1502(a)
,
except that such notice need be given only once not less than five (5) days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of any adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall constitute a quorum. Except as limited by the proviso
to
Section 902
, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities
of that series; provided, however, that, except as limited by the proviso to
Section 902
, any resolution with respect
to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding
Securities of that series.
Any resolution passed or
decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding
on all the Holders of Securities of such series and the related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing
provisions of this
Section 1504
, if any action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent, waiver or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified percentage in principal amount of all Outstanding Securities
affected thereby, or of the Holders of such series and one or more additional series:
(a) there
shall be no minimum quorum requirement for such meeting; and
(b) the
principal amount of the Outstanding Securities of such series that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or taken under this Indenture.
Section 1505
Determination
of Voting Rights; Conduct and Adjournment of Meetings
.
(a) Notwithstanding
any provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified
in
Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104
or by having the signature of the Person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized
by
Section 104
to certify to the holding of Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in
Section 104
or other proof.
(b) The
Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in
Section 1502(b)
, in which case the Company or the Holders
of Securities of or within the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series represented at the meeting.
(c) At
any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of
the Outstanding Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted
at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any
meeting of Holders of Securities of any series duly called pursuant to
Section 1502
at which a quorum is present may
be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such
series represented at the meeting, and the meeting may be held as so adjourned without further notice.
Section 1506
Counting
Votes and Recording Action of Meetings
.
The vote upon any resolution
submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of the fact, setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in
Section 1502
and, if applicable,
Section 1504
. Each copy
shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be
delivered to the Company and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
Section 1507
Evidence
of Action Taken by Holders
.
Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Holders of any or all series may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Holders in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee.
Proof of execution of any instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to
Article Six
) conclusive in favor of the Trustee and the Company, if made in the manner provided in
this Article.
Section 1508
Proof
of Execution of Instruments
.
Subject to
Article Six
,
the execution of any instrument by a Holder or his agent or proxy may be proved in accordance with such reasonable rules and regulations
as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee.
Article Sixteen
Conversion or Exchange of Securities
Section 1601
Applicability
of Article
.
The provisions of this
Article shall be applicable to the Securities of any series which are convertible or exchangeable for other securities or property
(including securities of other issuers) of the Company, except as otherwise specified as contemplated by
Section 301
for the Securities of such series.
Section 1602
Election
to Exchange; Notice to Trustee and Holders
.
The election of the Company
to exchange any Securities shall be evidenced by a Board Resolution or in another manner specified as contemplated by
Section 301
for such Securities. On or prior to the seventh Business Day prior to Maturity of the Securities, the Company shall provide written
notice to the Holders of record of the Securities and to the Trustee and will publish a notice in an Authorized Newspaper stating
whether the Company has made such election.
Section 1603
No
Fractional Shares
.
No fractional shares or
fractional securities shall be delivered upon conversions or exchanges of Securities of any series. If more than one Security shall
be surrendered for conversion or exchange at one time by the same Holder, the number of full shares or units which shall be delivered
upon conversion or exchange shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions
thereof to the extent permitted hereby) so surrendered. If, except for the provisions of this
Section 1603
, any Holder
of a Security or Securities would be entitled to a fractional share or unit of a security upon the conversion or exchange of such
Security or Securities, or specified portions thereof, the Company shall pay to such Holder an amount in cash equal to the current
market value of such fractional share or unit computed on the basis of the Closing Price of such security on the date preceding
the date on which the conversion or exchange shall be effected in accordance with
Section 1610
. The “
Closing
Price
” of any security on any date of determination means, (a) if such security is listed or admitted to unlisted trading
privileges on a national securities exchange, the last reported sales price on the composite tape on such exchange, or (b) if such
security is not at the time so listed or admitted to unlisted trading privileges on a national securities exchange, the average
of the bid and asked prices of such security in the over-the-counter market, as reported by the National Quotation Bureau, Incorporated
or similar organization if the National Quotation Bureau, Incorporated is no longer reporting such information, or if not so available,
the market price as determined by a nationally recognized independent investment banking firm retained for this purpose by the
Company.
Section 1604
Adjustment
of Conversion Rate or Exchange Rate
.
The exchange rate or conversion
rate of Securities of any series that are exchangeable for or convertible into other securities or property (including securities
of other issuers) shall be adjusted for any stock dividends, stock splits, reclassification, combinations or similar transactions
or any consolidation, merger or other reorganization event in accordance with the terms of the supplemental indenture or Board
Resolution setting forth the terms of the Securities of such series.
Whenever the exchange rate
or conversion rate is adjusted, the Company shall compute the adjusted exchange rate or conversion rate in accordance with terms
of the applicable Board Resolution or supplemental indenture and shall prepare an Officers’ Certificate setting forth the
adjusted exchange rate or conversion rate and showing in reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed at each office or agency maintained for the purpose of exchange or conversion of Securities
pursuant to
Section 1002
and, if different, with the Trustee. The Company shall forthwith cause a notice setting forth
the adjusted exchange rate or conversion rate to be mailed, first class postage prepaid, to each Holder of Securities of such series
at its address appearing on the Security Register and to any exchange agent or conversion agent other than the Trustee.
Section 1605
Payment
of Certain Taxes Upon Exchange
.
The Company will pay any
and all taxes that may be payable in respect of the transfer and delivery of shares of other securities or property (including
securities of other issuers) of the Company on exchange or conversion of Securities pursuant hereto. The Company shall not, however,
be required to pay any tax which may be payable in respect of any transfer involved in the delivery of shares of securities in
a name other than that of the Holder of the Security or Securities to be exchanged or converted, and no such transfer or delivery
shall be made unless and until the person requesting such transfer has paid to the Company the amount of any such tax, or has established,
to the satisfaction of the Company, that such tax has been paid.
Section 1606
Shares
Free and Clear
.
The Company hereby warrants
that upon exchange or conversion of Securities of any series, the Holder of a Security shall receive all rights held by the Company
in such security for which such Security is at such time exchangeable or convertible under this
Article Sixteen
, free
and clear of any and all liens, claims, charges and encumbrances other than any liens, claims, charges and encumbrances which may
have been placed on any such security by the prior owner thereof, prior to the time such security was acquired by the Company.
Except as provided in
Section 1605
, the Company will pay all taxes and charges with respect to the delivery of such
security delivered in exchange or conversion for Securities hereunder.
Section 1607
Cancellation
of Security
.
Upon receipt by the Trustee
of Securities of any series delivered to it for exchange or conversion under this
Article Sixteen
, the Trustee shall
cancel and dispose of the same as provided in
Section 309
.
Section 1608
Duties
of Trustee Regarding Exchange and Conversion
.
Neither the Trustee nor
any exchange agent or conversion agent shall at any time be under any duty or responsibility to any Holder of Securities of any
series that is exchangeable or convertible into other securities or property (including securities of other issuers) of the Company
to determine whether any facts exist which may require any adjustment of the exchange rate or conversion rate, or with respect
to the nature or extent of any such adjustment when made, or with respect to the method employed, whether herein or in any supplemental
indenture, any resolutions of the Board of Directors or written instrument executed by one or more officers of the Company provided
to be employed in making the same. Neither the Trustee nor any exchange agent or conversion agent shall be accountable with respect
to the validity or value (or the kind or amount) of any securities or property (including securities of other issuers, of the Company,
or of any Securities and neither the Trustee nor any exchange agent or any conversion agent makes any representation with respect
thereto. Subject to the provisions of TIA Sections 315(a) through 313(d), neither the Trustee nor any exchange agent or conversion
agent shall be responsible for any failure of the Company to issue, transfer or deliver any stock certificates or other securities
or property (including securities of other issuers) upon the surrender of any Security for the purpose of exchange or conversion
or to comply with any of the covenants of the Company contained in this
Article Sixteen
or in the applicable supplemental
indenture, resolutions of the Board of Directors or written instrument executed by one or more duly authorized officers of the
Company. The Trustee shall not be responsible for the Company’s failure to comply with this
Article Sixteen
.
Section 1609
Repayment
of Certain Funds Upon Exchange or Conversion
.
Any funds which at any
time shall have been deposited by the Company or on its behalf with the Trustee or any other paying agent for the purpose of paying
the principal of, and premium, if any, and interest, if any, on any of the Securities (including funds deposited for the sinking
fund referred to in
Article Twelve
hereof) and which shall not be required for such purposes because of the exchange
or conversion of such Securities as provided in this
Article Sixteen
shall after such exchange or conversion be repaid
to the Company by the Trustee upon Company Request.
Section 1610
Exercise
of Conversion or Exchange Privilege
.
In order to exercise a
conversion or exchange privilege, the Holder of a Security of a series with such a privilege shall surrender such Security to the
Company at the office or agency maintained for that purpose pursuant to
Section 1002
, accompanied by written notice
to the Company that the Holder elects to convert or exchange such Security or a specified portion thereof. In the case of Registered
Securities, such notice shall also state, if different from the name or names (with address) in which the Securities are registered,
the name or names in which the Securities or property (including securities of other issuers) of the Company which shall be issuable
on such conversion or exchange shall be issued. Registered Securities surrendered for conversion or exchange shall (if so required
by the Company or the Trustee) be duly endorsed by or accompanied by instruments of transfer in forms satisfactory to the Company
and the Trustee duly executed by the registered Holder or its attorney duly authorized in writing; and Registered Securities so
surrendered for conversion or exchange during the period from the close of business on any Regular Record Date to the opening of
business on the next succeeding Interest Payment Date (excluding Securities or portions thereof called for redemption during such
period) shall also be accompanied by payment in funds acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of such Security then being converted or exchanged, and such interest shall be payable
to such registered Holder notwithstanding the conversion or exchange of such Security, subject to the provisions of
Section 307
relating to the payment of Defaulted Interest by the Company. As promptly as practicable after the receipt of such notice and of
any payment required pursuant to a Board Resolution and, subject to
Section 303
, set forth, or determined in the manner
provided, in an Officers’ Certificate, or established in one or more indentures supplemental hereto setting forth the terms
of such series of Security, and the surrender of such Security in accordance with such reasonable regulations as the Company may
prescribe, the Company shall issue and shall deliver, at the office or agency at which such Security is surrendered, to such Holder
or on its written order, securities or property (including securities of other issuers) of the Company issuable or deliverable
upon the conversion or exchange of such Security (or specified portion thereof), in accordance with the provisions of such Board
Resolution, Officers’ Certificate or supplemental indenture, and cash as provided therein in respect of any fractional share
or unit otherwise issuable upon such conversion or exchange. Such conversion or exchange shall be deemed to have been effected
immediately prior to the close of business on the date on which such notice and such payment, if required, shall have been received
in proper order for conversion or exchange by the Company and such Security shall have been surrendered as aforesaid (unless such
Holder shall have so surrendered such Security and shall have instructed the Company to effect the conversion or exchange on a
particular date following such surrender and such Holder shall be entitled to convert or exchange such Security on such date, in
which case such conversion or exchange shall be deemed to be effected immediately prior to the close of business on such date)
and at such time the rights of the Holder of such Security as such Security Holder shall cease and the person or persons in whose
name or names any securities or property (including securities of other issuers) of the Company shall be issuable or deliverable
upon such conversion or exchange shall be deemed to have become the Holder or Holders of record of the shares represented thereby.
Except as set forth above and subject to the final paragraph of
Section 307
, no payment or adjustment shall be made
upon any conversion or exchange on account of any interest accrued on the Securities surrendered for conversion or exchange or
on account of any interest or dividends on the Securities or property (including securities of other issuers) of the Company issued
or delivered upon such conversion or exchange.
In the case of any Security
which is converted or exchanged in part only, upon such conversion or exchange the Company shall execute and the Trustee shall
authenticate and deliver to or on the order of the Holder thereof, at the expense of the Company, a new Security or Securities
of the same series, of authorized denominations, in aggregate principal amount equal to the unconverted or unexchanged portion
of such Security.
Section 1611
Effect
of Consolidation or Merger on Exchange or Conversion Privilege
.
In case of any consolidation
of the Company with, or merger of the Company into or with any other Person, or in case of any sale of all or substantially all
of the assets of the Company, the Company or the Person formed by such consolidation or the Person into which the Company shall
have been merged or the Person which shall have acquired such assets, as the case may be, shall execute and deliver to the Trustee
a supplemental indenture providing that the Holder of each Security then Outstanding of any series that is exchangeable for or
convertible into securities of the Company shall have the right, which right shall be the exclusive exchange or conversion right
thereafter available to said Holder (until the expiration of the exchange or conversion right of such Security), to exchange or
convert such Security into the kind and amount of shares of stock or other securities or property (including cash) receivable upon
such consolidation, merger or sale by a holder of the number of shares or units of securities of the Company for which such Security
might have been exchanged or converted immediately prior to such consolidation, merger or sale, subject to compliance with the
other provisions of this Indenture, such Security and such supplemental indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in such Security. The above
provisions of this Section shall similarly apply to successive consolidations, mergers or sales. It is expressly agreed and understood
that anything in this Indenture to the contrary notwithstanding, if, pursuant to such merger, consolidation or sale, holders of
outstanding shares of common stock of the Company or other securities, into which the Security is exchangeable or convertible do
not receive shares of common stock or corresponding other securities of the surviving corporation, but receive other securities,
cash or other property or any combination thereof, Holders of Securities shall not have the right to thereafter exchange their
Securities for or convert their Securities into common stock or other securities having substantially identical terms as the Company
securities, for which the Security was originally exchangeable or into which the Security was originally convertible, of the surviving
corporation or the corporation which shall have acquired such assets, but rather, shall have the right upon such exchange or conversion
to receive the other securities, cash or other property receivable by a holder of the number of shares of common stock or such
or other securities of the Company for or into which the Securities held by such holder might have been exchanged or converted
immediately prior to such consolidation, merger or sale, all as more fully provided in the first sentence of this
Section 1611
.
Anything in this
Section 1611
to the contrary notwithstanding, the provisions of this
Section 1611
shall
not apply to a merger or consolidation of another corporation with or into the Company pursuant to which both of the following
conditions are applicable: (a) the Company is the surviving corporation and (b) the outstanding shares of Company common stock
or other securities of the Company for which the Security was originally exchangeable or into which the Security was originally
convertible are not changed or converted into any other securities or property (including cash) or reclassified pursuant to the
terms of such merger or consolidation.
As evidence of the kind
and amount of shares of stock or other securities or property (including cash) into which Securities may properly be exchangeable
or convertible after any such consolidation, merger or sale, or as to the appropriate adjustments of the conversion prices or exchange
rates applicable with respect thereto, the Trustee shall be furnished with and may accept the certificate or opinion of an independent
certified public accountant with respect thereto; and, in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely thereon, and shall not be responsible or accountable to any Holder of Securities for any provision in conformity
therewith or approved by such independent certified accountant which may be contained in said supplemental indenture.
Article Seventeen
Guarantees
Section 1701
Guarantee
.
Any series of Securities
may be guaranteed by one or more of the Guarantors. The terms and the form of any such Guarantee will be established in the manner
contemplated by
Section 301
for that particular series of Securities.
[Signatures to follow.]
IN WITNESS WHEREOF
,
the parties hereto have caused this Indenture to be duly executed by their respective officers hereunto duly authorized, all as
of the day and year first above written.
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COMPANY
:
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Intec Pharma Ltd.
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By:
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Name:
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Title:
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[GUARANTORS:
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By:
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Name:
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Title:]
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TRUSTEE:
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By:
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Name:
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Title:
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SCHEDULE I
GUARANTORS
EXHIBIT A-1
FORM OF CERTIFICATE TO
BE GIVEN BY PERSON ENTITLED TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE CERTIFICATE
[Insert title or sufficient
description of Securities to be delivered]
This is to certify that,
as of the date hereof, and except as set forth below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate
or trust the income of which is subject to United States federal income taxation regardless of its source (“United States
person(s)”), (ii) are owned by United States person(s) that are (a) foreign branches of United States financial institutions
(financial institutions, as defined in United States Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as “financial
institutions”) purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities
through foreign branches of United States financial institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, on
its own behalf or through its agent, that you may advise [__________________] or its agent that such financial institution will
provide a certificate within a reasonable time stating that it agrees to comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are owned
by a financial institution for purposes of resale during the restricted period (as defined in United States Treasury Regulations
Section 1.1635(c)(2)(i)(D)(7)), and, such financial institution described in clause (iii) above (whether or not also described
in clause (i) or (ii)), certifies that it has not acquired the Securities for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
As used herein, “United
States” means the United States of America (including the States and the District of Columbia); and its “possessions”
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise
you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your operating procedures if any applicable statement herein is not correct
on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date. This
certificate excepts and does not relate to [U.S.$] of such interest in the above-captioned Securities in respect of which we are
not able to certify and as to which we understand an exchange for an interest in a permanent global Security or an exchange for
and delivery of definitive Securities (or, if relevant, collection of any interest) cannot be made until we do so certify.
We understand that this
certificate may be required in connection with certain tax legislation in the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such proceedings.
Dated:_________________,
____.
[To be dated no earlier
than the 15th day prior to the earlier of (i) the Exchange Date or (ii) the relevant Interest Payment Date occurring prior to the
Exchange Date, as applicable.]
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[Name of Person Making Certification]
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(Authorized Signatory)
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Name:
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Title:
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EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CLEARSTREAM BANKING S.A. IN CONNECTION WITH THE EXCHANGE OF A PORTION OF A TEMPORARY
GLOBAL SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE CERTIFICATE
[Insert title or sufficient description of Securities
to be delivered]
This is to certify that,
based solely on written certifications that we have received in writing, by tested telex or by electronic transmission from each
of the persons appearing in our records as persons entitled to a portion of the principal amount set forth below (our “Member
Organizations”) substantially in the form attached hereto, as of the date hereof, (U.S.$) principal amount of the above-captioned
Securities (i) is owned by persons(s) that are not citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source
(“United States person(s)”), (ii) is owned by United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in United States Treasury Regulations Section 1.165-12(c)(1)(v) are
herein referred to as “financial institutions”) purchasing for their own account or for resale, or (b) United States
person(s) who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in either case (a) or (b), each such financial institution
has agreed, on its own behalf or through its agent, that we may advise [_________________________] or its agent that such financial
institution will provide a certificate within a reasonable time stating that it agrees to comply with the requirements of Section
165(j)(3)(A), (B), or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned
by a financial institution for purposes of resale during the restricted period (as defined in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and that such financial institutions described in clause (iii) above (whether or not also described
in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its possessions.
As used herein, “United
States” means the United States of America (including the States and the District of Columbia); and its “possessions”
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that
(i) we are not making available herewith for exchange (or, if relevant, collection of any interest) any portion of the temporary
global Security representing the above-captioned Securities excepted in the above-referenced certificates of Member Organizations
and (ii) as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the part submitted herewith for exchange (or, if relevant,
collection of any interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this
certification is required in connection with certain tax legislation in the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such proceedings.
Dated:__________________
, _____.
[To be dated no earlier
than the earlier of the Exchange Date or the relevant Interest Payment Date occurring prior to the Exchange Date, as applicable.]
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____________________________,
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as _________________
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By:
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Name:
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Title:
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2
Exhibit 4.6
INTEC PHARMA LTD.
TO
[_______________________],
as Trustee
GUARANTEED TO THE EXTENT SET FORTH
HEREIN BY THE GUARANTORS NAMED HEREIN
INDENTURE
Dated as of [_____________], 20[__]
SUBORDINATED DEBT SECURITIES
TABLE OF CONTENTS
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Page
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Article One Definitions and Other Provisions of General Application
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1
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Section 101
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Definitions
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1
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Section 102
|
Compliance Certificates and Opinions
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11
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Section 103
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Form of Documents Delivered to Trustee
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12
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Section 104
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Acts of Holders
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13
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Section 105
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Notices, etc., to the Trustee and Company
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14
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Section 106
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Notice to Holders; Waiver
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15
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Section 107
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Effect of Headings and Table of Contents
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16
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Section 108
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Successors and Assigns
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16
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Section 109
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Separability Clause
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16
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Section 110
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Benefits of Indenture
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16
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Section 111
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No Personal Liability
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16
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Section 112
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Governing Law
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16
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Section 113
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Legal Holidays
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17
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Section 114
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Waiver of Jury Trial
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17
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Section 115
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Counterparts
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17
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Section 116
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Force Majeure
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17
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Article Two Securities Forms
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17
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Section 201
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Forms of Securities.
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17
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Section 202
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Form of Trustee’s Certificate of Authentication
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18
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Section 203
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Securities Issuable in Global Form
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18
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Section 204
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CUSIP, CINS or ISIN Numbers
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19
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Article Three The Securities
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20
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Section 301
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Amount Unlimited; Issuable in Series
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20
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Section 302
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Denominations
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23
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Section 303
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Execution, Authentication, Delivery and Dating
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24
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Section 304
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Temporary Securities
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26
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Section 305
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Registration, Registration of Transfer and Exchange
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28
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Section 306
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Mutilated, Destroyed, Lost and Stolen Securities
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31
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Section 307
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Payment of Interest; Interest Rights Preserved
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32
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Section 308
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Persons Deemed Owners
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34
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Section 309
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Cancellation
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35
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Section 310
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Computation of Interest
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35
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Article Four Satisfaction and Discharge
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36
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Section 401
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Satisfaction and Discharge of Indenture
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36
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Section 402
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Application of Trust Fund
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37
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Article Five Remedies
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37
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Section 501
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Events of Default
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37
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Section 502
|
Acceleration of Maturity; Rescission and Annulment
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39
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Section 503
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
40
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Section 504
|
Trustee May File Proofs of Claim
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41
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Section 505
|
Trustee May Enforce Claims Without Possession of Securities or Coupons
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42
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Section 506
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Application of Money Collected
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42
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Section 507
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Limitation on Suits
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42
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Section 508
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Unconditional Right of Holders to Receive Principal, Premium or Make-Whole Amount, if any, Interest and Additional Amounts
|
43
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Section 509
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Restoration of Rights and Remedies
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44
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Section 510
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Rights and Remedies Cumulative
|
44
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Section 511
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Delay or Omission Not Waiver
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44
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Section 512
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Control by Holders of Securities
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44
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Section 513
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Waiver of Past Defaults
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45
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Section 514
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Waiver of Stay or Extension Laws
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45
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Section 515
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Undertaking for Costs
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45
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Article Six The Trustee
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46
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Section 601
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Notice of Defaults
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46
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Section 602
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Certain Rights of Trustee
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46
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Section 603
|
Not Responsible for Recitals or Issuance of Securities
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48
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Section 604
|
May Hold Securities
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48
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Section 605
|
Money Held in Trust
|
48
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Section 606
|
Compensation and Reimbursement
|
48
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Section 607
|
Corporate Trustee Required; Eligibility; Conflicting Interests
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49
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Section 608
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Resignation and Removal; Appointment of Successor
|
50
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Section 609
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Acceptance of Appointment By Successor
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51
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Section 610
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Merger, Conversion, Consolidation or Succession to Business
|
52
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Section 611
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Appointment of Authenticating Agent
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53
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Article Seven Holders’ Lists and Reports by Trustee and Company
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54
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Section 701
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Disclosure of Names and Addresses of Holders
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54
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Section 702
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Reports by Trustee
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54
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Section 703
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Reports by Company
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55
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Section 704
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Company to Furnish Trustee Names and Addresses of Holders
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55
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Article Eight Consolidation, Merger, Sale, Lease or Conveyance
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56
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Section 801
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Consolidations and Mergers of Company and Sales, Leases and Conveyances Permitted Subject to Certain Conditions
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56
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Section 802
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Rights and Duties of Successor Corporation
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56
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Section 803
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Officers’ Certificate and Opinion of Counsel
|
57
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Article Nine Supplemental Indentures
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57
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Section 901
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Supplemental Indentures Without Consent of Holders
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57
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Section 902
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Supplemental Indentures With Consent of Holders
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59
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Section 903
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Execution of Supplemental Indentures
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60
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Section 904
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Effect of Supplemental Indentures
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60
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Section 905
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Conformity with Trust Indenture Act
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60
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Section 906
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Reference in Securities to Supplemental Indentures
|
60
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Section 907
|
Notice of Supplemental Indentures
|
61
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Article Ten Covenants
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61
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Section 1001
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Payment of Principal, Premium or Make-Whole Amount, if any, Interest and Additional Amounts
|
61
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Section 1002
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Maintenance of Office or Agency
|
62
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Section 1003
|
Money for Securities Payments to Be Held in Trust
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63
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Section 1004
|
(Omitted)
|
64
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Section 1005
|
Provision of Financial Information
|
64
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Section 1006
|
Statement as to Compliance
|
65
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Section 1007
|
Additional Amounts
|
65
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Section 1008
|
Waiver of Certain Covenants
|
66
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Article Eleven Redemption of Securities
|
66
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Section 1101
|
Applicability of Article
|
66
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Section 1102
|
Election to Redeem; Notice to Trustee
|
66
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Section 1103
|
Selection by Trustee of Securities to Be Redeemed
|
67
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Section 1104
|
Notice of Redemption
|
67
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Section 1105
|
Deposit of Redemption Price
|
68
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Section 1106
|
Securities Payable on Redemption Date
|
69
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Section 1107
|
Securities Redeemed in Part
|
70
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Article Twelve Sinking Funds
|
70
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Section 1201
|
Applicability of Article
|
70
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Section 1202
|
Satisfaction of Sinking Fund Payments with Securities
|
70
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Section 1203
|
Redemption of Securities for Sinking Fund
|
71
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Article Thirteen Repayment at the Option of Holders
|
71
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Section 1301
|
Applicability of Article
|
71
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Section 1302
|
Repayment of Securities
|
71
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Section 1303
|
Exercise of Option
|
72
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Section 1304
|
When Securities Presented for Repayment Become Due and Payable
|
72
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Section 1305
|
Securities Repaid in Part
|
73
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Article Fourteen Defeasance and Covenant Defeasance
|
73
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Section 1401
|
Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance
|
73
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Section 1402
|
Defeasance and Discharge
|
74
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Section 1403
|
Covenant Defeasance
|
74
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Section 1404
|
Conditions to Defeasance or Covenant Defeasance
|
75
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Section 1405
|
Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions
|
76
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Section 1406
|
Reinstatement
|
77
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Article Fifteen Meetings of Holders of Securities
|
78
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Section 1501
|
Purposes for Which Meetings May Be Called
|
78
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Section 1502
|
Call, Notice and Place of Meetings
|
78
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Section 1503
|
Persons Entitled to Vote at Meetings
|
78
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Section 1504
|
Quorum; Action
|
79
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Section 1505
|
Determination of Voting Rights; Conduct and Adjournment of Meetings
|
80
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Section 1506
|
Counting Votes and Recording Action of Meetings
|
81
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Section 1507
|
Evidence of Action Taken by Holders
|
81
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Section 1508
|
Proof of Execution of Instruments
|
81
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Article Sixteen Conversion or Exchange of Securities
|
81
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|
Section 1601
|
Applicability of Article
|
81
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Section 1602
|
Election to Exchange; Notice to Trustee and Holders
|
81
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Section 1603
|
No Fractional Shares
|
82
|
|
Section 1604
|
Adjustment of Conversion Rate or Exchange Rate
|
82
|
|
Section 1605
|
Payment of Certain Taxes Upon Exchange
|
83
|
|
Section 1606
|
Shares Free and Clear
|
83
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|
Section 1607
|
Cancellation of Security
|
83
|
|
Section 1608
|
Duties of Trustee Regarding Exchange and Conversion
|
83
|
|
Section 1609
|
Repayment of Certain Funds Upon Exchange or Conversion
|
84
|
|
Section 1610
|
Exercise of Conversion or Exchange Privilege
|
84
|
|
Section 1611
|
Effect of Consolidation or Merger on Exchange or Conversion Privilege
|
85
|
|
|
|
|
|
Article Seventeen Subordination
|
86
|
|
|
|
|
|
Section 1701
|
Agreement to Subordinate
|
86
|
|
Section 1702
|
Liquidation; Dissolution; Bankruptcy
|
86
|
|
Section 1703
|
Default on Senior Debt
|
87
|
|
Section 1704
|
Acceleration of Securities
|
87
|
|
Section 1705
|
When Distribution Must Be Paid Over
|
87
|
|
Section 1706
|
Notice by Company
|
87
|
|
Section 1707
|
Subrogation
|
88
|
|
Section 1708
|
Relative Rights
|
88
|
|
Section 1709
|
Subordination May Not Be Impaired by Company
|
88
|
|
Section 1710
|
Distribution or Notice to Representative
|
88
|
|
Section 1711
|
Notice to Trustee
|
89
|
|
Section 1712
|
Reliance on Judicial Order or Certificate of Liquidating Agent
|
89
|
|
Section 1713
|
Trustee Not Fiduciary for Holders of Senior Debt
|
89
|
|
Section 1714
|
Rights of Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights
|
90
|
|
|
|
|
|
Article Eighteen Guarantees
|
90
|
|
|
|
|
Section 1801
|
Guarantee
|
90
|
Testimonium
Signatures and Seals
Acknowledgements
Exhibit A - Forms of Certification
Reconciliation and
tie between Trust Indenture Act of 1939, as amended (the “
TIA
”), and Indenture, dated as of [____________],
20[__].
|
Trust Indenture Act Section
|
|
Indenture Section
|
|
Section 310(a)(1)
|
|
607
|
|
(a)(2)
|
|
607
|
|
(b)
|
|
608
|
|
Section 312(c)
|
|
701
|
|
Section 314(a)
|
|
703
|
|
(a)(4)
|
|
1006
|
|
(c)(1)
|
|
102
|
|
(c)(2)
|
|
102
|
|
(e)
|
|
102
|
|
Section 315(b)
|
|
601
|
|
Section 316(a) (last sentence)
|
|
101 (“
Outstanding
”)
|
|
(a)(1)(A)
|
|
502, 512
|
|
(a)(1)(B)
|
|
513
|
|
(b)
|
|
508
|
|
Section 317(a)(1)
|
|
503
|
|
(a)(2)
|
|
504
|
|
Section 318(a)
|
|
112
|
|
(c)
|
|
112
|
Note: This reconciliation
and tie shall not, for any purpose, be deemed to be a part of the Indenture.
Attention should also
be directed to Section 318(c) of the TIA, which provides that the provisions of Sections 310 to and including Section 317 of the
TIA are a part of and govern every qualified indenture, whether or not physically contained therein.
INDENTURE
INDENTURE
, dated
as of [_____________], 20[__], by and between INTEC PHARMA LTD., a corporation organized under the laws of the State of Israel
(hereinafter called the “
Company
”), the guarantors listed on Schedule I hereto, as such schedule may be amended
from time to time (the “
Guarantors
”), and [__________________],as Trustee hereunder (hereinafter called the
“
Trustee
”).
RECITALS OF THE COMPANY
The Company deems it
necessary to issue from time to time for its lawful purposes subordinated debt securities (hereinafter called the “
Securities
”)
evidencing its unsecured indebtedness, and has duly authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of one or more series of Securities, unlimited as to principal amount, to bear interest at the rates
or formulas, to mature at such times and to have such other provisions as shall be fixed therefor as hereinafter provided.
This Indenture is subject
to the provisions of the Trust Indenture Act of 1939, as amended, that are required to be part of this Indenture, and shall be
governed by such provisions; provided that if any provision of this Indenture modifies any TIA (as defined herein) provision that
may be so modified, such TIA provision shall be deemed to apply to this Indenture as so modified; provided further that if any
provision of this Indenture excludes any TIA provision that may be so excluded, such TIA provision shall be excluded from this
Indenture.
All things necessary
to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE,
THIS INDENTURE WITNESSETH:
For and in consideration
of the premises and the purchase of the Securities by the Holders (as defined herein) thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities or a series thereof and any coupons, as follows:
Article One
Definitions and Other Provisions of General Application
Section 101
Definitions
.
For all purposes of
this Indenture, except as otherwise expressly provided or the context otherwise requires:
(a) the
terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;
(b) all
other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms “
cash transaction
” and “
self-liquidating paper,
”
as used in Trust Indenture Act Section 311, shall have the meanings assigned to them in the rules of the Commission adopted under
the Trust Indenture Act;
(c) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP; and
(d) the
words “
herein,
” “
hereof
” and “
hereunder
” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used
principally in
Article Three
,
Article Five
,
Article Six
and
Article Ten
, are defined
in those Articles. In addition, the following terms shall have the indicated respective meanings:
“
Act
”,
when used with regard to any Holder, has the meaning specified in
Section 104
.
“
Additional
Amounts
” means any additional amounts which are required by a Security, under circumstances specified therein, to be
paid by the Company in respect of certain taxes imposed on certain Holders and which are owing to such Holders.
“
Affiliate
”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition, “
control
” when used with respect
to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “
controlling
” and “
controlled
”
have meanings correlative to the foregoing.
“
Authenticating
Agent
” means any authenticating agent appointed by the Trustee to act on behalf of the Trustee pursuant to
Section 611
.
“
Authorized
Newspaper
” means a newspaper, printed in the English language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation
in each place in connection with which the term is used or in the financial community of each such place. Whenever successive publications
are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case on any Business Day.
“
Bankruptcy
Law
” has the meaning specified in
Section 501
.
“
Bearer Security
”
means a Security which is payable to bearer.
“
Board of
Directors
” means either (i) the Board of Directors of the Company, the executive committee or any other committee or
director of that board duly authorized to act for it in respect hereof, or (ii) one or more duly authorized officers of the Company
to whom the Board of Directors of the Company or a committee thereof has delegated the authority to act with respect to the matters
contemplated by this Indenture.
“
Board Resolution
”
means (i) a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors or a committee thereof, and to be in full force and effect on the date of such certification, and delivered
to the Trustee or (ii) a certificate signed by the authorized officer or officers of the Company to whom the Board of Directors
of the Company or a committee thereof has delegated its authority (as described in the definition of Board of Directors), and in
each case, delivered to the Trustee.
“
Business
Day
” when used with respect to any Place of Payment or any other particular location referred to in this Indenture or
in the Securities, means, unless otherwise specified with respect to any Securities pursuant to
Section 301
, any day,
other than a Saturday or Sunday, that is not (i) a legal holiday or a day on which banking institutions in that Place of Payment
or particular location are authorized or required by law, regulation or executive order to close, or (ii) a day on which the Corporate
Trust Office of the Trustee is closed for business.
“
Capital Stock
”
means, with respect to any Person, any capital stock (including preferred stock), shares, interest, participations or other ownership
interests (however designated) of such Person and any rights (other than debt securities convertible into or exchangeable for corporate
stock), warrants or options to purchase any thereof.
“
Clearstream
”
means Clearstream Banking, S.A., Luxembourg, or its successor.
“
Commission
”
means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at
any time after execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the
TIA, then the body performing such duties on such date.
“
Common Depository
”
has the meaning specified in
Section 304(b)
.
“
Company
”
means the Person named as the “
Company
” in the first paragraph of this Indenture until a successor corporation
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “
Company
” shall
mean such successor corporation.
“
Company Request
”
and “
Company Order
” mean, respectively, a written request or order signed in the name of the Company by the
President or a Vice President of the Company, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee.
“
Conversion
Event
” means the cessation of use of (i) a Foreign Currency (other than the ECU or other currency unit) both by the government
of the country which issued such currency and for the settlement of transactions by a central bank or other public institutions
of or within the international banking community, (ii) the ECU both within the European Monetary System and for the settlement
of transactions by public institutions of or within the European Communities or (iii) any currency unit (or composite currency)
other than the ECU for the purposes for which it was established.
“
Corporate
Trust Office
” means the office of the Trustee at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at [_________________], [_________________], or such other address as the Trustee may
designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“
corporation
”
includes corporations, associations, companies and business or statutory trusts.
“
coupon
”
means any interest coupon appertaining to a Bearer Security.
“
Custodian
”
has the meaning specified in
Section 501
.
“
Debt
”
means the principal, premium, if any, unpaid interest (including interest accruing on or after the filing of any petition in bankruptcy
or for reorganization relating to the Company whether or not a claim for post-filing interest is allowed in such proceeding), fees,
charges, expenses, reimbursement and indemnification obligations, and all other amounts payable under or in respect of the following
indebtedness of the Company for money borrowed, whether any such indebtedness exists as of the date of the Indenture or is created,
incurred, assumed or guaranteed after such date:
(i) any
debt (a) for money borrowed, or (b) evidenced by a bond, note, debenture, or similar instrument (including purchase money obligations)
given in connection with the acquisition of any business, property or assets, whether by purchase, merger, consolidation or otherwise,
but shall not include any account payable or other obligation created or assumed in the ordinary course of business in connection
with the obtaining of materials or services, or (c) which is a direct or indirect obligation which arises as a result of banker’s
acceptances or bank letters of credit issued to secure obligations of the Company, or to secure the payment of revenue bonds issued
for the benefit of the Company, whether contingent or otherwise;
(ii) any
debt of others described in the preceding clause (i) which the Company has guaranteed or for which it is otherwise liable;
(iii) the
obligation of the Company, as lessee under any lease of property which is reflected on the Company’s balance sheet as a capitalized
lease; and
(iv) any
deferral, amendment, renewal, extension, supplement or refunding of any liability of the kind described in any of the preceding
clauses (i), (ii), and (iii); provided, however, that, in computing indebtedness of the Company, there shall be excluded any particular
indebtedness if, upon or prior to the maturity thereof, there shall have been deposited with a depository in trust money (or evidence
of indebtedness if permitted by the instrument creating such indebtedness) in the necessary amount to pay, redeem or satisfy such
indebtedness as it becomes due, and the amount so deposited shall not be included in any computation of the assets of the Company.
“
Defaulted
Interest
” has the meaning specified in
Section 307
.
“
Dollar
”
or “
$
” means a dollar or other equivalent unit in such coin or currency of the United States of America as at
the time shall be legal tender for payment of public and private debts.
“
DTC
”
means The Depository Trust Company.
“
ECU
”
means the European Currency Unit as defined and revised from time to time by the Council of the European Communities.
“
Euroclear
”
means Morgan Guaranty Trust Company of New York, Brussels Office, or its successor as operator of the Euroclear System.
“
European
Communities
” means the European Economic Community, the European Coal and Steel Community and the European Atomic Energy
Community.
“
European
Monetary System
” means the European Monetary System established by the Resolution of December 5, 1978 of the Council
of the European Communities.
“
Event of
Default
” has the meaning specified in
Section 501
.
“
Exchange
Act
” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder by the
Commission.
“
Exchange
Date
” has the meaning specified in
Section 304
.
“
Foreign Currency
”
means any currency, currency unit or composite currency, including, without limitation, the ECU, issued by the government of one
or more countries other than the United States of America or by any recognized confederation or association of such governments,
which currency shall be acceptable to the Trustee.
“
GAAP
”
means generally accepted accounting principles as used in the United States applied on a consistent basis as in effect from time
to time; provided that solely for purposes of any calculation required by the financial covenants contained herein, “
GAAP
”
shall mean generally accepted accounting principles as used in the United States on the date hereof, applied on a consistent basis.
“
Government
Obligations
” means securities which are (i) direct obligations of the United States of America or the government which
issued the Foreign Currency in which the Securities of a particular series are payable, for the payment of which its full faith
and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America or such government which issued the Foreign Currency in which the Securities of such series are payable,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America or such
other government, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include
a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific
payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation
or the specific payment of interest on or principal of the Government Obligation evidenced by such depository receipt.
“
Guarantee
”
means a guarantee by any Guarantor of an obligation under this Indenture.
“
Holder
”
means, in the case of a Registered Security, the Person in whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect to any coupon, shall mean the bearer thereof.
“
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 pursuant to the applicable provisions hereof, and shall include the terms of particular series
of Securities established as contemplated by
Section 301
; provided, however, that, if at any time more than one Person
is acting as Trustee under this instrument, “
Indenture
” shall mean, with respect to any one or more series of
Securities for which such Person is Trustee, 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 pursuant to the applicable provisions hereof and shall include
the terms of the or those particular series of Securities for which such Person is Trustee established as contemplated by
Section 301
,
exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee,
regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more
indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which such Person, as such
Trustee, was not a party.
“
Indexed Security
”
means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
“
Interest
”
when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest
payable after Maturity, and, when used with respect to a Security which provides for the payment of Additional Amounts pursuant
to
Section 1007
, includes such Additional Amounts.
“
Interest
Payment Date
” means, when used with respect to any Security, the Stated Maturity of an installment of interest on such
Security.
“
Make-Whole
Amount
” means the amount, if any, in addition to principal which is required by a Security, under the terms and conditions
specified therein or as otherwise specified as contemplated by
Section 301
, to be paid by the Company to the Holder
thereof in connection with any optional redemption or accelerated payment of such Security.
“
Maturity
”
means, when used with respect to any Security, the date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice
of redemption, notice of option to elect repayment, repurchase or otherwise.
“
Officers’
Certificate
” means a certificate signed by the President or a Vice President and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Company, delivered to the Trustee and meeting the requirements of
Section 102
,
to the extent applicable.
“
Opinion of
Counsel
” means a written opinion of counsel, who may be an employee of or counsel for the Company or other counsel satisfactory
to the Trustee and meeting the requirements of
Section 102
, to the extent applicable.
“
Original
Issue Discount Security
” means any Security which provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502
.
“
Outstanding
”
when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities
theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities,
or portions thereof, for whose payment or redemption or repayment at the option of the Holder money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities and any coupons appertaining
thereto; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture
or other provision therefor satisfactory to the Trustee has been made;
(c) Securities,
except solely to the extent provided in
Section 1402
or
Section 1403
, as applicable, with respect to which
the Company has effected defeasance and/or covenant defeasance as provided in
Article Fourteen
;
(d) Securities
which have been paid pursuant to
Section 306
or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company; and
(e) Securities
that have been converted into Capital Stock of the Company pursuant to or in accordance with this Indenture if the terms of such
Securities provide for convertibility pursuant to
Section 301
;
provided, however,
that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes,
and for the purpose of making the calculations required by TIA Section 313, (A) the principal amount of an Original Issue Discount
Security that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose
shall be equal to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time
of such determination, upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502
, (B) the
principal amount of any Security denominated in a Foreign Currency that may be counted in making such determination or calculation
and that shall be deemed Outstanding for such purpose shall be equal to the Dollar equivalent, determined pursuant to
Section 301
as of the date such Security is originally issued by the Company, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent as of such date of original issuance of the amount determined as provided in clause (A)
above) of such Security, (C) the principal amount of any Indexed Security that may be counted in making such determination or calculation
and that shall be deemed Outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Indexed Security pursuant to
Section 301
, and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which
a Responsible Officer of the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s
right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor. Upon the written request of the Trustee, the Company shall furnish to
the Trustee promptly an Officers’ Certificate listing and identifying all Securities, if any, known by the Company to be
owned by, held by or for the account of the Company, or any other obligor on the Securities or any Affiliate of the Company or
such obligor, and subject to the provisions of
Section 602
, the Trustee shall be entitled to accept such Officers’
Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding
for the purpose of any such determination.
“
Paying Agent
”
means any Person authorized by the Company to pay the principal of (and premium or Make-Whole Amount, if any) or interest, if any,
on any Securities, or coupons on behalf of the Company, or if no such Person is authorized, the Company.
“
Person
”
means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision thereof.
“
Place of
Payment
” means, when used with respect to the Securities of or within any series, the place or places (which, in the
case of Bearer Securities, shall be outside the United States) where the principal of (and premium or Make-Whole Amount, if any)
and interest on such Securities are payable as specified as contemplated by
Section 301
and
Section 1002
.
“
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 306
in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security or the Security to which the mutilated, destroyed, lost or stolen coupon appertains.
“
Redemption
Date
” means, when used with respect to any Security to be redeemed in whole or in part, the date fixed for such redemption
by or pursuant to this Indenture.
“
Registered
Security
” means any Security which is registered in the Security Register.
“
Regular Record
Date
” for the installment of interest payable on any Interest Payment Date on the Registered Securities of or within
any series means the date specified for that purpose as contemplated by
Section 301
, whether or not a Business Day.
“
Repayment
Date
” means, when used with respect to any Security to be repaid or repurchased at the option of the Holder, the date
fixed for such repayment or repurchase by or pursuant to this Indenture.
“
Repayment
Price
” means, when used with respect to any Security to be repaid or purchased at the option of the Holder, the price
at which it is to be repaid or repurchased pursuant to this Indenture.
“
Representative
”
means the indenture trustee or other trustee, agent or representative for an issuance of Senior Debt.
“
Responsible
Officer
” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee
(or any successor 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 is referred because of such person’s
knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this
Indenture.
“
Securities
Act
” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder by the Commission.
“
Security
”
has the meaning stated in the first recital of this Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that if at any time there is more than one Person acting as Trustee under
this Indenture, “
Securities
” with respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered under
this Indenture, exclusive, however, of Securities of or within any series as to which such Person is not Trustee.
“
Security
Register
” and “
Security Registrar
” have the respective meanings specified in
Section 305
.
“
Senior Debt
”
means the principal, premium, if any, unpaid interest (including interest accruing on or after the filing of any petition in bankruptcy
or for reorganization relating to the Company whether or not a claim for post-filing interest is allowed in such proceeding), fees,
charges, expenses, reimbursement and indemnification obligations, and all other amounts payable under or in respect of the following
indebtedness of the Company for money borrowed, whether any such indebtedness exists as of the date of the Indenture or is created,
incurred, assumed or guaranteed after such date:
(a) any
debt (1) for money borrowed, or (2) evidenced by a bond, note, debenture, or similar instrument (including purchase money obligations)
given in connection with the acquisition of any business, property or assets, whether by purchase, merger, consolidation or otherwise,
but shall not include any account payable or other obligation created or assumed in the ordinary course of business in connection
with the obtaining of materials or services, or (3) which is a direct or indirect obligation which arises as a result of banker’s
acceptances or bank letters of credit issued to secure obligations of the Company, or to secure the payment of revenue bonds issued
for the benefit of the Company whether contingent or otherwise;
(b) any
debt of others described in the preceding clause (a) which the Company has guaranteed or for which it is otherwise liable;
(c) the
obligation of the Company as lessee under any lease of property which is reflected on the Company’s balance sheet as a capitalized
lease; and
(d) any
deferral, amendment, renewal, extension, supplement or refunding of any liability of the kind described in any of the preceding
clauses (a), (b), and (c); provided, however, that, in computing indebtedness of the Company, there shall be excluded any particular
indebtedness if, upon or prior to the maturity thereof, there shall have been deposited with a depository in trust money (or evidence
of indebtedness if permitted by the instrument creating such indebtedness) in the necessary amount to pay, redeem or satisfy such
indebtedness as it becomes due, and the amount so deposited shall not be included in any computation of the assets of the Company;
provided, further, that in computing the indebtedness of the Company hereunder, there shall be excluded (1) any such indebtedness,
obligation or liability referred to in clauses (a) through (c) above as to which, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such indebtedness, obligation or liability is not superior
in right of payment to the Securities, or ranks pari passu with the Securities, (2) any such indebtedness, obligation or liability
which is subordinated to indebtedness of the Company to substantially the same extent as or to a greater extent than the Securities
are subordinated and (3) the Securities. There is no limit on the amount of Senior Debt that the Company may incur.
“
Significant
Subsidiary
” means any Subsidiary which is a “
significant subsidiary
” (within the meaning of Regulation
S-X, promulgated under the Securities Act) of the Company.
“
Special Record
Date
” for the payment of any Defaulted Interest on the Registered Securities of or within any series means a date fixed
by the Trustee pursuant to
Section 307
.
“
Stated Maturity
”
means, when used with respect to any Security or any installment of principal thereof or interest thereon, the date specified in
such Security or a coupon representing such installment of interest as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
“
Subsidiary
”
means, with respect to any Person, any corporation or other entity of which a majority of (a) the voting power of the voting equity
securities or (b) the outstanding equity interests of which are owned, directly or indirectly, by such Person. For the purposes
of this definition, “
voting equity securities
” means equity securities having voting power for the election
of directors, whether at all times or only so long as no senior class of security has such voting power by reason of any contingency.
“
Trust Indenture
Act
” or “
TIA
” means the U.S. Trust Indenture Act of 1939, as amended and as in force at the date as
of which this Indenture was executed, except as provided in
Section 905
.
“
Trustee
”
means the Person named as the “
Trustee
” in the first paragraph of this Indenture until a successor Trustee shall
have become such pursuant to the applicable provisions of this Indenture, and thereafter “
Trustee
” shall mean
or include each Person who is then a Trustee hereunder; provided, however, that if at any time there is more than one such Person,
“
Trustee
” as used with respect to the Securities of or within any series shall mean only the Trustee with respect
to the Securities of that series.
“
United States
”
means, unless otherwise specified with respect to any Securities pursuant to
Section 301
, the United States of America
(including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
“
United States
person
” means, unless otherwise specified with respect to any Securities pursuant to
Section 301
, an individual
who is a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under
the laws of the United States or of any state or the District of Columbia or an estate or trust the income of which is subject
to United States federal income taxation regardless of its source.
“
Yield to
Maturity
” means the yield to maturity, computed at the time of issuance of a Security (or, if applicable, at the most
recent predetermination of interest on such Security) and as set forth in such Security in accordance with generally accepted United
States bond yield computation principles.
Section 102
Compliance
Certificates and Opinions
.
Upon any application
or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture (including
covenants, compliance with which constitute conditions precedent) relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need
be furnished.
Every certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture (excluding certificates delivered
pursuant to
Section 1006
) shall include:
(a) a
statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein
relating thereto;
(b) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a
statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition or covenant has been complied with; and
(d) a
statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 103
Form
of Documents Delivered to Trustee
.
In any case where several
matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion as to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or
opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a certificate
or representations by counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion,
certificate or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such
Opinion of Counsel or certificate or representations may be based, insofar as it relates to factual matters, upon a certificate
or opinion of, or representations by, an officer or officers of the Company stating that the information as to such factual matters
is in the possession of the Company, unless such counsel knows that the certificate or opinion or representations as to such matters
are erroneous.
Where any Person is
required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 104
Acts
of Holders
.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken
by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing.
If Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, whether in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance with
the provisions of
Article Fifteen
, or a combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to as the “
Act
” of the Holders
signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Company and any agent of the Trustee or the Company, if made in the manner provided
in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in
Section 1506
.
(b) The
fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a
signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing
the same, may also be proved in any other reasonable manner which the Trustee deems sufficient.
(c) The
ownership of Registered Securities shall be proved by the Security Register or by a certificate of the Security Registrar.
(d) The
ownership of Bearer Securities may be proved by the production of such Bearer Securities or by a certificate executed, as depository,
by any trust company, bank, banker or other depository, wherever situated, if such certificate shall be deemed by the Trustee to
be satisfactory, showing that at the date therein mentioned such person had on deposit with such depository, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2) such Bearer Security is produced to the Trustee by some other Person,
or (3) such Bearer Security is surrendered in exchange for a Registered Security, or (4) such Bearer Security is no longer Outstanding.
The ownership of Bearer Securities may also be proved in any other manner which the Trustee deems sufficient.
(e) If
the Company shall solicit from the Holders of Registered Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation
of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date
is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(f) Any
request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, any Security Registrar,
any Paying Agent, any Authenticating Agent or the Company in reliance thereon, whether or not notation of such Act is made upon
such Security.
Section 105
Notices,
etc., to the Trustee and Company
.
Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to or filed with,
(a) the
Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(b) the
Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified
in the first paragraph of this Indenture or at any other address previously furnished in writing to the Trustee by the Company.
Section 106
Notice
to Holders; Waiver
.
Where this Indenture
provides for notice of any event to Holders of Registered Securities by the Company or the Trustee, such notice shall be sufficiently
given (unless otherwise herein expressly provided or otherwise specified with respect to any series of Securities pursuant to
Section 301
)
if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears
in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of
such notice. In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether
or not such Holder actually receives such notice.
If by reason of the
suspension of or irregularities in regular mail service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as shall be made with the approval of the Trustee shall
constitute a sufficient notification to such Holders for every purpose hereunder.
Except as otherwise
expressly provided herein or otherwise specified with respect to any series of Securities pursuant to
Section 301
,
where this Indenture provides for notice to Holders of Bearer Securities of any event, such notice shall be sufficiently given
if published in an Authorized Newspaper in the City of New York and in such other city or cities as may be specified in such Securities,
and if the Securities of such series are listed on any stock exchange outside the United States, in any place at which such Securities
are listed on a securities exchange to the extent that such securities exchange so requires, on a Business Day, such publication
to be not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. Any such
notice shall be deemed to have been given on the date of such publication or, if published more than once, on the date of the first
such publication.
If by reason of the
suspension of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable
to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities
as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder.
Neither the failure to give notice by publication to any particular Holder of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of such notice with respect to other Holders of Bearer Securities or the
sufficiency of any notice to Holders of Registered Securities given as provided herein.
Any request, demand,
authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country of publication.
Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 107
Effect
of Headings and Table of Contents
.
The Article and Section
headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 108
Successors
and Assigns
.
All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 109
Separability
Clause
.
In case any provision
in this Indenture or in any Security or coupon shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.
Section 110
Benefits
of Indenture
.
Nothing in this Indenture
or in the Securities or coupons appertaining thereto, express or implied, shall give to any Person, other than the parties hereto,
any Security Registrar, any Paying Agent, any Authenticating Agent and their successors hereunder and the Holders any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 111
No
Personal Liability
.
No recourse under or
upon any obligation, covenant or agreement contained in this Indenture or any supplemental indenture, in any Security or coupon
appertaining thereto, or because of any indebtedness evidenced thereby, shall be had against any promoter, as such, or against
any past, present or future shareholder, officer, director or employee, as such, of the Company or of any successor, either directly
or through the Company or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the consideration for the execution of this Indenture and the
issue of the Securities.
Section 112
Governing
Law
.
This Indenture and
the Securities and coupons shall be governed by and construed in accordance with the laws of the State of New York without regard
to conflicts of law principles of such state other than New York General Obligations Law Section 5-1401. This Indenture is subject
to the provisions of the TIA that are required to be part of this Indenture and shall, to the extent applicable, be governed by
such provisions.
Section 113
Legal
Holidays
.
In any case where any
Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity of any Security
shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or any Security
or coupon other than a provision in the Securities of any series which specifically states that such provision shall apply in lieu
hereof), payment of interest, if any, or any Additional Amounts or principal (and premium or Make-Whole Amount, if any) need not
be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on such Interest Payment Date, Redemption Date, Repayment Date or sinking fund payment date,
or at the Stated Maturity or Maturity, as the case may be, provided that no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity
or Maturity, as the case may be, to such next succeeding Business Day.
Section 114
Waiver
of Jury Trial
.
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 NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 115
Counterparts
.
This Indenture may
be executed and delivered in any number of counterparts, each of which when so executed and delivered shall be deemed to be an
original, and all such counterparts shall together constitute but one and the same instrument.
Section 116
Force
Majeure
.
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.
Article Two
Securities Forms
Section 201
Forms
of Securities
.
The Registered Securities,
if any, of each series and the Bearer Securities, if any, and related coupons of each series, shall be in substantially the forms
as shall be established in or pursuant to one or more indentures supplemental hereto or Board Resolutions, shall have such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or any indenture supplemental
hereto, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements placed
thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required
to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange
on which the Securities may be listed, or to conform to usage.
Unless otherwise specified
as contemplated by
Section 301
, Bearer Securities shall have interest coupons attached.
The definitive Securities
and coupons shall be printed, lithographed or engraved or produced by any combination of these methods on a steel engraved border
or steel engraved borders or may be produced in any other manner, all as determined by the officers of the Company executing such
Securities or coupons, as evidenced by their execution of such Securities or coupons.
Section 202
Form
of Trustee’s Certificate of Authentication
.
Subject to
Section 611
,
the Trustee’s certificate of authentication shall be in substantially the following form:
This is one of the
Securities of the series designated therein referred to in the within-mentioned Indenture.
[_______________________],
as Trustee
By:
Name:
Title:
Section 203
Securities
Issuable in Global Form
.
If Securities of or
within a series are issuable in global form, as specified as contemplated by
Section 301
, then, notwithstanding clause
(h)
of
Section 301
and the provisions of
Section 302
, any such Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities of such series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities
of such series represented thereby may from time to time be increased or decreased to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby
shall be made by the Trustee in such manner and upon written instruction given by such Person or Persons as shall be specified
therein or in the Company Order to be delivered to the Trustee pursuant to
Section 303
or
Section 304
.
Subject to the provisions of
Section 303
and, if applicable,
Section 304
, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein
or in the applicable Company Order. If a Company Order pursuant to
Section 303
or
Section 304
has been,
or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a Security
in global form shall be in writing but need not comply with
Section 102
and need not be accompanied by an Opinion of
Counsel.
The provisions of the
last sentence of
Section 303
shall apply to any Security represented by a Security in global form if such Security
was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with written
instructions (which need not comply with
Section 102
and need not be accompanied by an Opinion of Counsel) with regard
to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by
the last sentence of
Section 303
.
Notwithstanding any
provision of
Section 307
, unless otherwise specified as contemplated by
Section 301
, payment of principal
of and any premium or Make-Whole Amount and interest, if any, on any Security in permanent global form shall be made to the Person
or Persons specified therein.
Notwithstanding the
provisions of
Section 308
and except as provided in the preceding paragraph, the Company, the Trustee and any agent
of the Company and the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a permanent
global Security (a) in the case of a permanent global Security in registered form, the Holder of such permanent global Security
in registered form, or (b) in the case of a permanent global Security in bearer form, Euroclear or Clearstream.
Section 204
CUSIP,
CINS or ISIN Numbers
.
The Company in issuing
any series of Securities may use “
CUSIP
”, “
CINS
” or “
ISIN
” numbers (if
then generally in use), and, if so, the Trustee shall use “
CUSIP
”, “
CINS
” or “
ISIN
”
numbers in notices as a convenience to Holders; provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on such Securities or as contained in any notice and that reliance may be placed
only on the other identification numbers printed on such Securities, and any such action relating to such notice shall not be affected
by any defect in or omission of such numbers in such notice. The Company shall promptly notify the Trustee, in writing, of any
change in the “
CUSIP
”, “
CINS
” or “
ISIN
” numbers.
Article Three
The Securities
Section 301
Amount
Unlimited; Issuable in Series
.
The aggregate principal
amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may
be issued in one or more series. There shall be established in or pursuant to authority granted by one or more Board Resolutions,
and, subject to
Section 303
, set forth in, or determined in the manner provided in, an Officers’ Certificate,
or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, any or all of
the following, as applicable (each of which (except for the matters set forth in clauses (a), (b) and (o) below), if so provided,
may be determined from time to time by the Company with respect to unissued Securities of or within the series when issued from
time to time):
(a) the
title of the Securities of or within the series (which shall distinguish the Securities of such series from all other series of
Securities);
(b) any
limit upon the aggregate principal amount of the Securities of or within the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of or within the series pursuant to
Section 304
,
Section 305
,
Section 306
,
Section 906
,
Section 1107
, or
Section 1305
);
(c) the
date or dates, or the method by which such date or dates will be determined, on which the principal of the Securities of or within
the series shall be payable and the amount of principal payable thereon;
(d) the
rate or rates (which may be fixed or variable) at which the Securities of or within the series shall bear interest, if any, or
the method by which such rate or rates shall be determined, the date or dates from which any such interest shall accrue or the
method by which such date or dates shall be determined, the Interest Payment Dates on which such interest will be payable and the
Regular Record Date, if any, for the interest payable on any Registered Security on any Interest Payment Date, or the method by
which such date shall be determined, and the basis upon which interest shall be calculated if other than that of a 360-day year
consisting of twelve 30-day months;
(e) the
place or places, if any, other than or in addition to the Borough of Manhattan, the City of New York, where the principal of (and
premium or Make-Whole Amount, if any), interest, if any, on, and Additional Amounts, if any, payable in respect of, Securities
of or within the series shall be payable (which, in the case of Bearer Securities, shall be payable outside the United States),
where any Registered Securities of or within the series may be surrendered for registration of transfer, exchange or conversion
and notices or demands to or upon the Company in respect of the Securities of or within the series and this Indenture may be served;
(f) the
period or periods within which, the price or prices (including the premium or Make-Whole Amount, if any) at which, the currency
or currencies, currency unit or units or composite currency or currencies (each of which currency shall be acceptable to the Trustee)
in which and other terms and conditions upon which Securities of or within the series may be redeemed in whole or in part, at the
option of the Company, if the Company is to have the option;
(g) the
obligation, if any, of the Company to redeem, repay or purchase Securities of or within the series pursuant to any sinking fund
or analogous provision or at the option of a Holder thereof, and the period or periods within which or the date or dates on which,
the price or prices at which, the currency or currencies, currency unit or units or composite currency or currencies (each of which
currency shall be acceptable to the Trustee) in which, and other terms and conditions upon which Securities of or within the series
shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(h) if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Registered Securities of or
within the series shall be issuable and, if other than the denomination of $5,000, the denomination or denominations in which any
Bearer Securities of or within the series shall be issuable;
(i) if
other than the Trustee, the identity of each Security Registrar and/or Paying Agent;
(j) if
other than the principal amount thereof, the portion of the principal amount of Securities of or within the series that shall be
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 502
or, if applicable, the portion
of the principal amount of Securities of or within the series that is convertible in accordance with the provisions of this Indenture,
or the method by which such portion shall be determined;
(k) if
other than Dollars, the Foreign Currency or Currencies in which payment of the principal of (and premium or Make-Whole Amount,
if any) or interest, if any, or Additional Amounts, if any, on the Securities of or within the series shall be payable or in which
the Securities of or within the series shall be denominated, each of which Foreign Currencies shall be acceptable to the Trustee;
(l) whether
the amount of payments of principal of (and premium or Make-Whole Amount, if any) or interest, if any, on the Securities of or
within the series may be determined with reference to an index, formula or other method (which index, formula or method may be
based, without limitation, on one or more currencies, currency units, composite currencies, commodities, equity indices or other
indices), and the manner in which such amounts shall be determined;
(m) whether
the principal of (and premium or Make-Whole Amount, if any) or interest, if any, or Additional Amounts, if any, on the Securities
of or within the series are to be payable, at the election of the Company or a Holder thereof, in a currency or currencies, currency
unit or units or composite currency or currencies (each of which currency shall be acceptable to the Trustee) other than that in
which such Securities are denominated or stated to be payable, the period or periods within which, and the terms and conditions
upon which, such election may be made, and the time and manner of, and identity of the exchange rate agent with responsibility
for, determining the exchange rate between the currency or currencies, currency unit or units or composite currency or currencies
in which such Securities are denominated or stated to be payable and the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are to be so payable;
(n) the
designation of the initial exchange rate agent, if any or any depositories;
(o) provisions,
if any, granting special rights to the Holders of Securities of or within the series upon the occurrence of such events as may
be specified;
(p) any
deletions from, modifications of or additions to the Events of Default or covenants of the Company with respect to Securities of
or within the series, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants
set forth herein;
(q) whether
Securities of or within the series are to be issuable as Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of Bearer Securities and the terms upon which Bearer Securities
of or within the series may be exchanged for Registered Securities of or within the series and vice versa (if permitted by applicable
laws and regulations), whether any Securities of or within the series are to be issuable initially in temporary global form and
whether any Securities of or within the series are to be issuable in permanent global form (with or without coupons) and, if so,
whether beneficial owners of interests in any such permanent global Security may exchange such interests for Securities of such
series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur,
if other than in the manner provided in
Section 305
, and, if Registered Securities of or within the series are to be
issuable as a global Security, the identity of the depository for such series;
(r) the
date as of which any Bearer Securities of or within the series and any temporary global Security representing Outstanding Securities
of or within the series shall be dated if other than the date of original issuance of the first Security of the series to be issued;
(s) the
Person to whom any interest on any Registered Security of the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest,
the manner in which, or the Person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining thereto as they severally mature, and the extent to which, or the manner
in which, any interest payable on a temporary global Security on an Interest Payment Date will be paid if other than in the manner
provided in
Section 304
;
(t) the
applicability, if any, of
Section 1402
and/or
Section 1403
to the Securities of or within the series and
any provisions in modification of, in addition to or in lieu of any of the provisions of
Article Fourteen
;
(u) if
the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then
the form and/or terms of such certificates, documents or conditions;
(v) if
the Securities of or within the series are to be issued upon the exercise of debt warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(w) whether
and under what circumstances the Company will pay Additional Amounts as contemplated by
Section 1007
on the Securities
of or within the series to any Holder who is not a United States person (including any modification to the definition of such term)
in respect of any tax, assessment or governmental charge and, if so, whether the Company will have the option to redeem such Securities
rather than pay such Additional Amounts (and the terms of any such option);
(x) the
obligation, if any, of the Company to permit the conversion of the Securities of such series into shares of Capital Stock of the
Company and the terms and conditions upon which such conversion shall be effected (including, without limitation, the initial conversion
price or rate, the conversion period, any adjustment of the applicable conversion price or rate and any requirements relative to
the reservation of such shares for purposes of conversion);
(y) if
convertible, any applicable limitations on the ownership or transferability of the Capital Stock into which such Securities are
convertible; and
(z) any
other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture except as permitted by
Section 905
).
All Securities of any
one series and the coupons appertaining to any Bearer Securities of such series, if any, shall be substantially identical except,
in the case of Registered or Bearer Securities issued in global form, as to denomination and except as may otherwise be provided
in or pursuant to such Board Resolution or in any indenture supplemental hereto. All Securities of any one series need not be issued
at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
If any of the terms
of the Securities of any series are established by action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) 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 Company Order for authentication and delivery of such Securities.
Section 302
Denominations
.
The Securities of each
series shall be issuable in such denominations as shall be specified as contemplated by
Section 301
. With respect to
Securities of any series denominated in Dollars, in the absence of any such provisions with respect to the Securities of any series,
the Registered Securities of such series, other than Registered Securities issued in global form (which may be of any denomination),
shall be issuable in denominations of $1,000 and any integral multiple thereof and the Bearer Securities of such series other than
Bearer Securities issued in global form (which may be of any denomination), shall be issuable in denominations of $5,000.
Section 303
Execution,
Authentication, Delivery and Dating
.
The Securities and
any coupons appertaining thereto shall be executed on behalf of the Company by its President or a Vice President, under its corporate
seal reproduced thereon, and attested by its Secretary or an Assistant Secretary. The signature of any of these officers on the
Securities and coupons may be manual or facsimile signatures of the present or any future such authorized officer and may be imprinted
or otherwise reproduced on the Securities.
Securities or coupons
appertaining thereto bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Securities or did not hold such offices at the date of such Securities or coupons.
At any time and from
time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series, together with
any coupon appertaining thereto, executed by the Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities; provided, however, that, in connection with its original issuance, no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided further that, unless otherwise specified with respect to any series
of Securities pursuant to
Section 301
a Bearer Security may be delivered in connection with its original issuance only
if the Person entitled to receive such Bearer Security shall have furnished a certificate to Euroclear or Clearstream, as the case
may be, in the form set forth in Exhibit A-1 to this Indenture or such other certificate as may be specified with respect to any
series of Securities pursuant to
Section 301
, dated no earlier than 15 days prior to the earlier of the date on which
such Bearer Security is delivered and the date on which any temporary Security first becomes exchangeable for such Bearer Security
in accordance with the terms of such temporary Security and this Indenture. Except as permitted by
Section 306
, the
Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured have been
detached and canceled.
If all of the Securities
of any series are not to be issued at one time and if the Board Resolution, Officers’ Certificate pursuant to a Board Resolution
or supplemental indenture establishing such series shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of particular Securities of such series, such as interest
rate or formula, maturity date, date of issuance and date from which interest shall accrue. In authenticating such Securities,
and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled
to receive, and (subject to TIA Section 315(a) through 315(d)) shall be fully protected in relying upon:
(a) an
Opinion of Counsel complying with
Section 102
and stating that:
(1) the
form or forms of such Securities and any coupons have been, or will have been upon compliance with such procedures as may be specified
therein, established in conformity with the provisions of this Indenture;
(2) the
terms of such Securities and any coupons have been, or will have been upon compliance with such procedures as may be specified
therein, established in conformity with the provisions of this Indenture; and
(3) such
Securities, together with any coupons appertaining thereto, when completed pursuant to such procedures as may be specified therein,
and executed and delivered by the Company to the Trustee for authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legal, valid and binding obligations of the Company, enforceable in accordance
with their terms, subject to applicable bankruptcy, insolvency, reorganization and other similar laws of general applicability
relating to or affecting the enforcement of creditors’ rights generally and to general equitable principles and to such other
matters as may be specified therein; and
(b) an
Officers’ Certificate complying with
Section 102
and stating that all conditions precedent provided for in this
Indenture relating to the issuance of such Securities have been, or will have been upon compliance with such procedures as may
be specified therein, complied with and that, to the best of the knowledge of the signers of such certificate, no Event of Default
with respect to such Securities shall have occurred and be continuing.
Notwithstanding the
provisions of
Section 301
and of the preceding paragraph, if all the Securities of any series are not to be issued
at one time, it shall not be necessary to deliver a Company Order, an Opinion of Counsel or an Officers’ Certificate otherwise
required pursuant to the preceding paragraph at the time of issuance of each Security of such series, but such order, opinion and
certificate, with appropriate modifications to cover such future issuances, shall be delivered at or before the time of issuance
of the first Security of such series.
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, obligations or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Each Registered Security
shall be dated the date of its authentication and each Bearer Security shall be dated as of the date specified as contemplated
by
Section 301
.
No Security or coupon
appertaining thereto shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there
appears on such Security or the Security to which such coupon appertains a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature of a Responsible Officer, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation
as provided in
Section 309
together with a written statement (which need not comply with
Section 102
and
need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued or sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
Section 304
Temporary
Securities
.
(a) Pending
the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form, or,
if authorized, in bearer form with one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions
and other variations as the officers of the Company executing such Securities may determine, as conclusively evidenced by their
execution of such Securities. In the case of Securities of any series, such temporary Securities may be in global form.
Except in the case
of temporary Securities in global form (which shall be exchanged in accordance with
Section 304(b)
or as otherwise
provided in or pursuant to a Board Resolution), if temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series,
the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any series (accompanied by any non-matured coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount
of definitive Securities of the same series and of like tenor of authorized denominations; provided, however, that no definitive
Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided further that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in
Section 303
.
Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture
as definitive Securities of such series.
(b) Unless
otherwise provided as contemplated in
Section 301
, this
Section 304(b)
shall govern the exchange of temporary
Securities issued in global form other than through the facilities of DTC. If any such temporary Security is issued in global form,
then such temporary global Security shall, unless otherwise provided therein, be delivered to the London office of a depository
or common depository (the “
Common Depository
”), for the benefit of Euroclear and Clearstream.
Without unnecessary
delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary global
Security (the “
Exchange Date
”), the Company shall deliver to the Trustee definitive Securities, in an aggregate
principal amount equal to the principal amount of such temporary global Security, executed by the Company. On or after the Exchange
Date, such temporary global Security shall be surrendered by the Common Depository to the Trustee, as the Company’s agent
for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge, and the Trustee
shall authenticate and deliver, in exchange for each portion of such temporary global Security, an equal aggregate principal amount
of definitive Securities of or within the same series of authorized denominations and of like tenor as the portion of such temporary
global Security to be exchanged. The definitive Securities to be delivered in exchange for any such temporary global Security shall
be in bearer form, registered form, permanent global bearer form or permanent global registered form, or any combination thereof,
as specified as contemplated by
Section 301
, and, if any combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, unless otherwise specified in such temporary global Security, upon such presentation by
the Common Depository, such temporary global Security is accompanied by a certificate dated the Exchange Date or a subsequent date
and signed by Euroclear as to the portion of such temporary global Security, if any, held for its account then to be exchanged
and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream as to the portion of such temporary global
Security, if any, held for its account then to be exchanged, each in the form set forth in Exhibit A-2 to this Indenture or in
such other form as may be established pursuant to
Section 301
; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only in compliance with the requirements of
Section 303
.
Unless otherwise specified
in such temporary global Security, the interest of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like tenor following the Exchange Date when the account
holder instructs Euroclear or Clearstream, as the case may be, to request such exchange on his behalf and delivers to Euroclear
or Clearstream, as the case may be, a certificate in the form set forth in Exhibit A-1 to this Indenture (or in such other form
as may be established pursuant to
Section 301
), dated no earlier than 15 days prior to the Exchange Date, copies of
which certificate shall be available from the offices of Euroclear or Clearstream, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise specified in such temporary global Security, any such exchange
shall be made free of charge to the beneficial owners of such temporary global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or Clearstream. Definitive Securities in bearer form to be delivered in exchange
for any portion of a temporary global Security shall be delivered only outside the United States.
Until exchanged in
full as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that,
unless otherwise specified as contemplated by
Section 301
, interest payable on a temporary global Security on an Interest
Payment Date for Securities of such series occurring prior to the applicable Exchange Date shall be payable to Euroclear or Clearstream
or the applicable Paying Agent on such Interest Payment Date upon delivery by Euroclear or Clearstream to the Trustee of a certificate
or certificates in the form set forth in Exhibit A-2 to this Indenture (or in such other forms as may be established pursuant to
Section 301
), for credit without further interest on or after such Interest Payment Date to the respective accounts
of Persons who are the beneficial owners of such temporary global Security on such Interest Payment Date and who have each delivered
to Euroclear or Clearstream, as the case may be, a certificate dated no earlier than 15 days prior to the Interest Payment Date
occurring prior to such Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such other forms as may be
established pursuant to
Section 301
). Notwithstanding anything to the contrary herein contained, the certifications
made pursuant to this paragraph shall satisfy the certification requirements of the preceding two paragraphs of this
Section 304(b)
and of the third paragraph of
Section 303
of this Indenture and the interests of the Persons who are the beneficial
owners of the temporary global Security with respect to which such certification was made will be exchanged for definitive Securities
of the same series and of like tenor on the Exchange Date or the date of certification if such date occurs after the Exchange Date,
without further act or deed by such beneficial owners. Except as otherwise provided in this paragraph, no payments of principal
or interest, if any, owing with respect to a beneficial interest in a temporary global Security will be made unless and until such
interest in such temporary global Security shall have been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear or Clearstream and not paid as herein provided shall be returned to the Trustee or the applicable Paying
Agent prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Company.
Section 305
Registration,
Registration of Transfer and Exchange
.
The Company shall cause
to be kept at the Corporate Trust Office of the Trustee or in any office or agency of the Company in a Place of Payment a register
for each series of Securities (the registers maintained in such office or in any such office or agency of the Company in a Place
of Payment being herein sometimes referred to collectively as the “
Security Register
”) in which, subject to
such reasonable regulations as it or the Security Registrar may prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities; provided, however, that there shall be only one Security Register per series
of Securities. The Security Register shall be in written form or any other form capable of being converted into written form within
a reasonable time. The Trustee, at its Corporate Trust Office, is hereby initially appointed “
Security Registrar
”
for the purpose of registering Registered Securities and transfers of Registered Securities on such Security Register as herein
provided. In the event that the Trustee shall cease to be Security Registrar, it shall have the right to examine the Security Register
at all reasonable times and to require that a copy of the Security Register in written form be delivered to it from time to time
as reasonably requested.
Subject to the provisions
of this
Section 305
, upon surrender for registration of transfer of any Registered Security of any series at any office
or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series, of
any authorized denominations and of a like aggregate principal amount and tenor, bearing a number not contemporaneously outstanding,
and containing identical terms and provisions.
Subject to the provisions
of this
Section 305
, at the option of the Holder, Registered Securities of any series may be exchanged for other Registered
Securities of the same series, of any authorized denomination or denominations and of a like aggregate principal amount, containing
identical terms and provisions, upon surrender of the Registered Securities to be exchanged at any such office or agency. Whenever
any such Registered Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is entitled to receive. Unless otherwise specified with
respect to any series of Securities as contemplated by
Section 301
, Bearer Securities may not be issued in exchange
for Registered Securities.
If (but only if) permitted
as contemplated by
Section 301
, at the option of the Holder, Bearer Securities of any series may be exchanged for Registered
Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon
or coupons in default, any such permitted exchange may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that, except as otherwise provided in
Section 1002
, interest
represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside
the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or
agency in a permitted exchange for a Registered Security of the same series and like tenor after the close of business at such
office or agency on (a) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest
Payment Date, or (b) any Special Record Date and before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date for payment, as the case may be, and interest or Defaulted Interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the holder making the exchange is entitled to receive.
Notwithstanding the
foregoing, except as otherwise specified as contemplated by
Section 301
, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depository for any permanent global Security is DTC, then, unless the terms of such
global Security expressly permit such global Security to be exchanged in whole or in part for definitive Securities, a global Security
may be transferred, in whole but not in part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC
for such global Security selected or approved by the Company or to a nominee of such successor to DTC. If at any time DTC notifies
the Company that it is unwilling or unable to continue as depository for the applicable global Security or Securities or if at
any time DTC ceases to be a clearing agency registered under the Exchange Act if so required by applicable law or regulation, the
Company shall appoint a successor depository with respect to such global Security or Securities. If (a) a successor depository
for such global Security or Securities is not appointed by the Company within 90 days after the Company receives such notice or
becomes aware of such unwillingness, inability or ineligibility, (b) an Event of Default has occurred and is continuing and the
beneficial owners representing a majority in principal amount of the applicable series of Securities represented by such global
Security or Securities advise DTC to cease acting as depository for such global Security or Securities or (c) the Company, in its
sole discretion, determines at any time that all Outstanding Securities (but not less than all) of any series issued or issuable
in the form of one or more global Securities shall no longer be represented by such global Security or Securities (provided, however,
the Company may not make such determination during the 40-day restricted period provided by Regulation S under the Securities Act
or during any other similar period during which the Securities must be held in global form as may be required by the Securities
Act), then the Company shall execute, and the Trustee shall authenticate and deliver definitive Securities of like series, rank,
tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of such global Security or Securities.
If any beneficial owner of an interest in a permanent global Security is otherwise entitled to exchange such an interest for Securities
of such series and of like tenor and principal amount of another authorized form and denomination, as specified as contemplated
by
Section 301
and provided that any applicable notice provided in the permanent global Security shall have been given,
then without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the
Company shall execute, and the Trustee shall authenticate and deliver definitive Securities in aggregate principal amount equal
to the principal amount of such beneficial owner’s interest in such permanent global Security. On or after the earliest date
on which such interests may be so exchanged, such permanent global Security shall be surrendered for exchange by DTC or such other
depository as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for such
purpose; provided, however, that no such exchanges may occur during a period beginning at the opening of business 15 days before
any selection of Securities to be redeemed and ending on the relevant Redemption Date if the Security for which exchange is requested
may be among those selected for redemption; and provided further that no Bearer Security delivered in exchange for a portion of
a permanent global Security shall be mailed or otherwise delivered to any location in the United States. If a Registered Security
is issued in exchange for any portion of a permanent global Security after the close of business at the office or agency where
such exchange occurs on (x) any Regular Record Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (y) any Special Record Date and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable
on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect
of such portion of such permanent global Security is payable in accordance with the provisions of this Indenture.
All Securities issued
upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Registered Security
presented or surrendered for registration of transfer or for exchange or redemption shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall
be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to
Section 304
,
Section 906
,
Section 1107
or
Section 1305
not involving any transfer.
The Company or the
Trustee, as applicable, shall not be required (a) to issue, register the transfer of or exchange any Security if such Security
may be among those selected for redemption during a period beginning at the opening of business 15 days before selection of the
Securities to be redeemed under
Section 1103
and ending at the close of business on (1) if such Securities are issuable
only as Registered Securities, the day of the mailing of the relevant notice of redemption and (2) if such Securities are issuable
as Bearer Securities, the day of the first publication of the relevant notice of redemption or, if such Securities are also issuable
as Registered Securities and there is no publication, the mailing of the relevant notice of redemption, or (b) to register the
transfer of or exchange any Registered Security so selected for redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed, or (c) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor, provided
that such Registered Security shall be simultaneously surrendered for redemption, or (d) to issue or to register the transfer or
exchange of any Security which has been surrendered for repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
Section 306
Mutilated,
Destroyed, Lost and Stolen Securities
.
If any mutilated Security
or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee or the Company, together with such security
or indemnity as may be required by the Company or the Trustee to save each of them or any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and
principal amount, containing identical terms and provisions and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered
to the Company and to the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security or coupon,
and (b) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then,
in the absence of actual notice to the Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser,
the Company shall execute and upon its written request the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same series and principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining
to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the
provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security or coupon has become
or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, with coupons corresponding
to coupons, if any, appertaining to such mutilated, destroyed, lost or stolen Security or to the Security to which such mutilated,
destroyed, lost or stolen coupon appertains, pay such Security or coupon; provided, however, that payment of principal of (and
premium or Make-Whole Amount, if any), any interest on and any Additional Amounts with respect to Bearer Securities shall, except
as otherwise provided in
Section 1002
, be payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by
Section 301
, any interest on Bearer Securities shall be payable only
upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of
any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security
of any series with its coupons, if any, issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security,
or in exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains, shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of that series and their coupons, if any, duly issued
hereunder.
The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 307
Payment
of Interest; Interest Rights Preserved
.
Except as otherwise
specified with respect to a series of Securities in accordance with the provisions of
Section 301
, interest, if any,
on any Registered Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest at the office or agency of the Company maintained for such purpose pursuant to
Section 1002
;
provided, however, that each installment of interest, if any, on any Registered Security may at the Company’s option be paid
by (a) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant to
Section 308
,
to the address of such Person as it appears on the Security Register or (b) transfer to an account maintained by the payee located
inside the United States.
Unless otherwise provided
as contemplated by
Section 301
with respect to the Securities of any series, payment of interest, if any, may be made,
in the case of a Bearer Security, by transfer to an account maintained by the payee with a bank located outside the United States.
Unless otherwise provided
as contemplated by
Section 301
, every permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or Clearstream, as the case may be, with respect to that portion of such
permanent global Security held for its account by DTC, Euroclear or Clearstream, as the case may be, for the purpose of permitting
such party to credit the interest, if any, received by it in respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security
of any series is surrendered in exchange for a Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any Regular Record Date and before the opening of business (at such office or
agency) on the next succeeding Interest Payment Date, such Bearer Security shall be surrendered without the coupon relating to
such Interest Payment Date and interest will not be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture.
Except as otherwise
specified with respect to a series of Securities in accordance with the provisions of
Section 301
, any interest on
any Registered Security of any series that is payable, but is not punctually paid or duly provided for, on any Interest Payment
Date shall forthwith cease to be payable to the registered Holder thereof on the relevant Regular Record Date by virtue of having
been such Holder, and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate or formula specified
in the Securities of such series (such defaulted interest and, if applicable, interest thereon herein collectively called “
Defaulted
Interest
”) may be paid by the Company, at its election in each case, as provided in clause (a) or (b) below:
(a) The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series
(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 Registered Security of such series and the date of the proposed payment (which
shall not be less than 20 days after such notice is received by the Trustee), and at the same time the Company shall deposit with
the Trustee an amount of money in the currency or currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified pursuant to
Section 301
for the Securities
of such series) 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 on or prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice (which notice shall be prepared by the Company) of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Registered Securities of such
series at his address as it appears in the Security Register 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 mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the
following clause (b). In case a Bearer Security of any series is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series after the close of business at such office or agency on any Special
Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such proposed date of payment and Defaulted Interest will
not be payable on such proposed date of payment in respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.
(b) The
Company may make payment of any Defaulted Interest on the Registered Securities of any series 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, in writing, to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing
provisions of this Section and
Section 305
, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Security.
Section 308
Persons
Deemed Owners
.
Prior to due presentment
of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Registered Security is registered as the owner of such Security for the purpose of receiving
payment of principal of (and premium or Make-Whole Amount, if any), and (subject to
Section 305
and
Section 307
)
interest on, such Registered Security and for all other purposes whatsoever, whether or not such Registered Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Title to any Bearer
Security and any coupons appertaining thereto shall pass by delivery. The Company, the Trustee and any agent of the Company or
the Trustee may treat the Holder of any Bearer Security and the Holder of any coupon as the absolute owner of such Security or
coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not
such Security or coupon be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected
by notice to the contrary.
None of the Company,
the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
Notwithstanding the
foregoing, with respect to any global Security, nothing herein shall prevent the Company, the Trustee, or any agent of the Company
or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any depository, as a
Holder, with respect to such global Security or impair, as between such depository and owners of beneficial interests in such global
Security, the operation of customary practices governing the exercise of the rights of such depository (or its nominee) as Holder
of such global Security.
Section 309
Cancellation
.
All Securities and
coupons surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer or exchange or for
credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered directly to the Trustee for any such purpose shall be
promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly canceled by the Trustee. If the Company shall so 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 surrendered to the Trustee for cancellation. No Securities shall be authenticated
in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture.
Cancelled Securities and coupons held by the Trustee shall be destroyed by the Trustee and, if requested in writing by the Company,
the Trustee shall deliver a certificate of such destruction to the Company, unless by a Company Order the Company directs their
return to it.
Section 310
Computation
of Interest
.
Except as otherwise
specified as contemplated by
Section 301
with respect to Securities of any series, interest, if any, on the Securities
of each series shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
Article Four
Satisfaction and Discharge
Section 401
Satisfaction
and Discharge of Indenture
.
This Indenture shall
upon Company Request cease to be of further effect with respect to any series of Securities specified in such Company Request (except
as to any surviving rights of registration of transfer or exchange of Securities of such series herein expressly provided for and
any right to receive Additional Amounts, as provided in
Section 1007
), and the Trustee, upon receipt of a Company Order,
and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture
as to such series when:
(a) either:
(1) all
Securities of such series theretofore authenticated and delivered and all coupons, if any, appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered for exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived as provided in
Section 305
, (ii) Securities and coupons of such
series which have been destroyed, lost or stolen and which have been replaced or paid as provided in
Section 306
, (iii)
coupons appertaining to Securities called for redemption and maturing after the relevant Redemption Date, whose surrender has been
waived as provided in
Section 1106
, and (iv) Securities and coupons of such series for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in
Section 1003
) have been delivered to the Trustee for cancellation; or
(2) all
Securities of such series and, in the case of (i) or (ii) below, any coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation
(i) have
become due and payable, or
(ii) will
become due and payable at their Stated Maturity within one year, or
(iii) if
redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company,
in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount in the currency or currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities and such
coupons not theretofore delivered to the Trustee for cancellation, for principal (and premium or Make-Whole Amount, if any) and
interest, and any Additional Amounts with respect thereto, to the date of such deposit (in the case of Securities which have become
due and payable) or the Stated Maturity or Redemption Date, as the case may be;
(b) the
Company has paid or caused to be paid all or other sums payable hereunder by the Company; and
(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied
with.
Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee and any predecessor Trustee under
Section 606
,
the obligations of the Company to any Authenticating Agent under
Section 611
and, if money shall have been deposited
with and held by the Trustee pursuant to subclause (2) of clause (a) of this Section, the obligations of the Trustee under
Section 402
and the last paragraph of
Section 1003
, shall survive.
In the event that there
are Securities of two or more series outstanding hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with respect to Securities of a particular series as to
which it is Trustee and if the other conditions thereto are met.
Section 402
Application
of Trust Fund
.
Subject to the provisions
of the last paragraph of
Section 1003
, all money deposited with the Trustee pursuant to
Section 401
shall
be held in trust and applied by it, in accordance with the provisions of the Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium or Make-Whole Amount, if any), and any interest and Additional
Amounts for whose payment such money has been deposited with or received by the Trustee, but such money need not be segregated
from other funds except to the extent required by law.
Article Five
Remedies
Section 501
Events
of Default
.
Subject to any modifications,
additions or deletions relating to any series of Securities as contemplated pursuant to
Section 301
, “
Event
of Default,
” wherever used herein with respect to any particular series of Securities, means any one of the following
events (whatever the reason for such Event of Default and whether or not it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative
or governmental body):
(a) default
in the payment of any interest upon or any Additional Amounts payable in respect of any Security of or within that series or of
any coupon appertaining thereto, when such interest, Additional Amounts or coupon becomes due and payable, and continuance of such
default for a period of 30 days; or
(b) default
in the payment of the principal of (or premium or Make-Whole Amount, if any, on) any Security of that series when it becomes due
and payable at its Maturity; or
(c) default
in the deposit of any sinking fund payment, when and as due by the terms of any Security of that series; or
(d) default
in the performance, or breach, of any covenant or warranty of the Company in this Indenture with respect to any Security of that
series (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating
that such notice is a “
Notice of Default
” hereunder; or
(e) default
under a bond, debenture, note, mortgage, indenture or instrument under which there may be issued or by which there may be secured
or evidenced any indebtedness for money borrowed by the Company (or by any Subsidiary, the repayment of which the Company has guaranteed
or for which the Company is directly responsible or liable as obligor or guarantor), having a principal amount outstanding in excess
of $20,000,000 (other than indebtedness which is non-recourse to the Company or the Subsidiaries), whether such indebtedness now
exists or shall hereafter be created, which default shall have resulted in such indebtedness being declared due and payable prior
to the date on which it would otherwise have become due and payable, without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within a period of 30 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that series a written notice specifying such default and requiring the Company to cause such indebtedness
to be discharged or cause such acceleration to be rescinded or annulled and stating that such notice is a “
Notice of Default
”
hereunder; or
(f) the
entry by a court of competent jurisdiction of one or more judgments, orders or decrees against the Company or any of its Subsidiaries
in an aggregate amount (excluding amounts covered by insurance) in excess of $20,000,000 and such judgments, orders or decrees
remain undischarged, unstayed and unsatisfied in an aggregate amount (excluding amounts covered by insurance) in excess of $20,000,000
for a period of 60 consecutive days; or
(g) the
Company or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(1) commences
a voluntary case,
(2) consents
to the entry of an order for relief against it in an involuntary case,
(3) consents
to the appointment of a Custodian of it or for all or substantially all of its property, or
(4) makes
a general assignment for the benefit of its creditors; or
(h) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(1) is
for relief against the Company or any Significant Subsidiary in an involuntary case,
(2) appoints
a Custodian of the Company or any Significant Subsidiary or for all or substantially all of either of its property; or
(3) orders
the liquidation of the Company or any Significant Subsidiary, and the order or decree remains unstayed and in effect for 90 days;
or
(i) any
other Event of Default provided with respect to Securities of that series.
As used in this
Section 501
,
the term “
Bankruptcy Law
” means Title 11, U.S. Code or any similar Federal or state law for the relief of debtors
and the term “
Custodian
” means any receiver, trustee, assignee, liquidator or other similar official under any
Bankruptcy Law.
Section 502
Acceleration
of Maturity; Rescission and Annulment
.
If an Event of Default
described in clause (a), (b), (c), (d), (e), (f) or (i) of
Section 501
, with respect to Securities of any series at
the time Outstanding occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series may declare the principal (or, if any Securities are Original Issue Discount
Securities or Indexed Securities, such portion of the principal as may be specified in the terms thereof) of, and the Make-Whole
Amount, if any, on, all the Outstanding Securities of that series and any accrued and unpaid cash interest through the date of
such declaration to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders),
and upon any such declaration such principal or specified portion thereof shall become immediately due and payable.
At any time after such
a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment
of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(a) the
Company has paid or deposited with the Trustee a sum sufficient to pay in the currency, currency unit or composite currency in
which the Securities of such series is payable (except as otherwise specified pursuant to
Section 301
for the Securities
of such series):
(1) all
overdue installments of interest on and any Additional Amounts payable in respect of all Outstanding Securities of that series
and any related coupons;
(2) the
principal of (and premium or Make-Whole Amount, if any, on) any Outstanding Securities of that series which have become due otherwise
than by such declaration of acceleration and interest thereon at the rate or rates borne by or provided for in such Securities;
(3) to
the extent that payment of such interest is lawful, interest upon overdue installments of interest and any Additional Amounts at
the rate or rates borne by or provided for in such Securities; and
(4) all
sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(b) all
Events of Default with respect to Securities of that series, other than the nonpayment of the principal of (or premium or Make-Whole
Amount, if any) or interest, if any, on Securities of that series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in
Section 513
.
No such rescission
shall affect any subsequent default or impair any right consequent thereon.
If an Event of Default
described in clause (g) or (h) of
Section 501
occurs and is continuing, then the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the principal as may be specified in the terms thereof)
of, and the Make-Whole Amount, if any, on, all the Outstanding Securities of that series and any accrued interest through the occurrence
of such Event of Default, shall become due and payable immediately, without any declaration or other act by the Trustee or any
other Holder.
Section 503
Collection
of Indebtedness and Suits for Enforcement by Trustee
.
The Company covenants
that if:
(a) default
is made in the payment of any installment of interest or Additional Amounts, if any, on any Security of any series and any related
coupon when such interest or Additional Amount becomes due and payable and such default continues for a period of 30 days; or
(b) default
is made in the payment of the principal of (or premium or Make-Whole Amount, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities of such
series and coupons, the whole amount then due and payable on such Securities and coupons for principal (and premium or Make-Whole
Amount, if any) and interest and Additional Amounts, with interest upon any overdue principal (and premium or Make-Whole Amount,
if any) and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installments of interest
or Additional Amounts, if any, at the rate or rates borne by or provided for in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails
to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company or any other obligor upon such Securities of such series and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such
Securities of such series, wherever situated.
If an Event of Default
with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any related coupons by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504
Trustee
May File Proofs of Claim
.
In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the Securities of any series shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, premium or Make-Whole Amount, if any, or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise:
(a) to
file and prove a claim for the whole amount, or such lesser amount as may be provided for in the Securities of such series, of
principal (and premium or Make-Whole Amount, if any) and interest and Additional Amounts, if any, owing and unpaid in respect of
the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceeding; and
(b) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is
hereby authorized by each Holder of Securities of such series and coupons to make such payments to the Trustee, and in the event
that the Trustee shall consent, in writing, to the making of such payments directly to the Holders, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee and any predecessor Trustee, their
agents and counsel, and any other amounts due the Trustee or any predecessor Trustee under
Section 606
.
Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security or
coupon any plan of reorganization, arrangement, adjustment or composition affecting the Securities or coupons or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a Security or coupon in any such
proceeding.
Section 505
Trustee
May Enforce Claims Without Possession of Securities or Coupons
.
All rights of action
and claims under this Indenture or any of the Securities or coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect of which such judgment has been recovered.
Section 506
Application
of Money Collected
.
Any money collected
by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium or Make-Whole Amount, if any) or any interest and
any Additional Amounts, upon presentation of the Securities or coupons, or both, as the case may be (such presentation, in the
case of Bearer Securities or coupons, to occur only outside the United States), and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment
(such payment, in the case of Bearer Securities or coupons, to occur only outside the United States) of all amounts due the Trustee
and any predecessor Trustee under
Section 606
,
SECOND: To the payment
of the amounts then due and unpaid upon the Securities and coupons for principal (and premium or Make-Whole Amount, if any) and
interest and any Additional Amounts payable, 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 aggregate amounts due and payable on such Securities and coupons for
principal (and premium or Make-Whole Amount, if any), interest and Additional Amounts, respectively, and
THIRD: To the payment
of the remainder, if any, to the Company.
Section 507
Limitation
on Suits
.
No Holder of any Security
of any series or any related coupon shall have any right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that
series;
(b) the
Holders of not less than 25% in principal amount of the Outstanding Securities of that series in the case of any Event of Default
described in clause (a), (b), (c), (d), (e), (f) or (i) of
Section 501
, or, in the case of any Event of Default described
in clause (g) or (h) of
Section 501
, the Holders of not less than 25% in principal amount of all Outstanding Securities,
shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
(e) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series in the case of any Event of Default described in clause (a), (b),
(c), (d), (e), (f) or (i) of
Section 501
, or, in the case of any Event of Default described in clause (g) or (h) of
Section 501
, the Holders of not less than 25% in principal amount of all Outstanding Securities; it being understood
and intended that no one or more of such Holders of Securities of the same series, in the case of any Event of Default described
in clause (a), (b), (c), (d), (e), (f) or (i) of
Section 501
, or, of Holders of all Securities in the case of any Event
of Default described in clause (g) or (h) of
Section 501
shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders (it
being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forebearance are
unduly prejudicial to such Holders), or to obtain or to seek to obtain priority or preference over any other of such Holders or
to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such
Holders of Securities of the same series, in the case of any Event of Default described in clause (a), (b), (c), (d), (e), (f)
or (i) of
Section 501
, or, of Holders of all Securities in the case of any Event of Default described in clause (g)
or (h) of
Section 501
.
Section 508
Unconditional
Right of Holders to Receive Principal, Premium or Make-Whole Amount, if any, Interest and Additional Amounts
.
Notwithstanding any
other provision in this Indenture, the Holder of any Security or coupon shall have the right which is absolute and unconditional
to receive payment of the principal of (and premium or Make-Whole Amount, if any) and (subject to
Section 305
and
Section 307
)
interest on, and any Additional Amounts in respect of, such Security or payment of such coupon on the respective due dates expressed
in such Security or coupon (or, in the case of redemption, on the Redemption Date) and to convert or exchange such Securities in
accordance with
Article Sixteen
to institute suit for the enforcement of any such payment, conversion or exchange and
such rights shall not be impaired without the consent of such Holder.
Section 509
Restoration
of Rights and Remedies
.
If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding
has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and
in every such case the Company, the Trustee and the Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding has been instituted.
Section 510
Rights
and Remedies Cumulative
.
Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of
Section 306
, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities
or coupons is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511
Delay
or Omission Not Waiver
.
No delay or omission
of the Trustee or of any Holder of any Security or coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or any acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by the Holders of Securities or coupons, as the case may be.
Section 512
Control
by Holders of Securities
.
With respect to the
Securities of any series, the Holders of not less than a majority in principal amount of the Outstanding Securities of such series
shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee relating to or arising under clause (a), (b), (c), (d), (e), (f) or (i)
of
Section 501
; and, with respect to all Securities, the Holders of a majority in principal amount of all Outstanding
Securities 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, not relating to or arising under clause (a), (b), (c), (d),
(e), (f) or (i) of
Section 501
; provided that:
(a) such
direction shall not be in conflict with any rule of law or with this Indenture;
(b) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(c) the
Trustee need not take any action which might involve it in personal liability or be unduly prejudicial to the Holders of Securities
of such series not joining therein (but the Trustee shall have no obligation as to the determination of such undue prejudice).
Section 513
Waiver of Past Defaults
.
The Holders of not less than a majority
in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series
and any related coupons consent to the waiver of any past default hereunder with respect to such series described in clause (a),
(b), (c), (d), (e), (f) or (i) of
Section 501
(or, in the case of a default described in clause (g) or (h) of
Section 501
,
the Holders of a majority in principal amount of all Outstanding Securities may waive any such past default with respect to all
series) and its consequences, except, in each case, a default:
(a) in
the payment of the principal of (or premium or Make-Whole Amount, if any) or interest on or Additional Amounts payable in respect
of any Security of such series or any related coupons; or
(b) in
respect of a covenant or provision hereof which under
Article Nine
cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.
Section 514
Waiver of Stay or
Extension Laws
.
The Company covenants (to the extent that
it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 515
Undertaking for Costs
.
All parties to this Indenture agree, and
each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit having due regard to the merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities, or to any suit instituted
by any Holder for the enforcement of the payment of the principal of (or premium or Make-Whole Amount, if any) or interest on or
Additional Amounts payable with respect to any Security on or after the respective Stated Maturities expressed in such Security
(or in the case of redemption, on or after the Redemption Date).
Article Six
The Trustee
Section 601
Notice of Defaults
.
Within 90 days after the occurrence of any
default hereunder with respect to the Securities of any series, the Trustee shall transmit in the manner and to the extent provided
in TIA Section 313(c), notice of such default hereunder known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the principal of (or premium or Make-Whole Amount, if
any) or interest on or any Additional Amounts with respect to any Security of such series, or in the payment of any sinking fund
installment with respect to the Securities of such series, the Trustee shall be protected in withholding such notice if and so
long as Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interests of
the Holders of the Securities and coupons of such series; and provided further that in the case of any default or breach of the
character specified in
Section 501(d)
with respect to the Securities and coupons of such series, no such notice to
Holders shall be given until at least 60 days after the occurrence thereof. For the purpose of this Section, the term “
default
”
means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to the Securities
of such series.
Section 602
Certain Rights of
Trustee
.
Subject to the provisions of TIA Section
315(a) through 315(d):
(a) the
Trustee shall perform only such duties as are expressly undertaken by it to perform under this Indenture and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
(b) the
Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document
believed by it to be genuine and to have been signed or presented by the proper party or parties;
(c) any
request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order (other
than delivery of any Security, together with any coupons appertaining thereto, to the Trustee for authentication and delivery pursuant
to
Section 303
which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(d) whenever
in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, conclusively rely upon an Officers’ Certificate;
(e) the
Trustee may consult with counsel of its choice and as a condition to the taking, suffering or omission of any action hereunder
may demand an Opinion of Counsel, and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(f) the
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(g) the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation;
(h) 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;
(i) the
Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture. The Trustee shall not be required to expend or
risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it;
(j) in
no event shall the Trustee be responsible or liable for special, 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;
(k) the
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(l) the
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other
Person employed to act hereunder; and
(m) 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.
Section 603
Not Responsible for
Recitals or Issuance of Securities
.
The recitals contained herein and in the
Securities, except the Trustee’s certificate of authentication, and in any coupons shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Indenture or of the Securities or coupons, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility on Form T 1 supplied to the Company are true and accurate,
subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds thereof.
Section 604
May Hold Securities
.
The Trustee, any Paying Agent, Security
Registrar, Authenticating Agent or any other agent of the Company, in its individual or any other capacity, may become the owner
or pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Paying Agent, Security Registrar, Authenticating Agent or such other agent.
Section 605
Money Held in Trust
.
Money held by the Trustee in trust hereunder
need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest
on, or investment of, any money received by it hereunder.
Section 606
Compensation and
Reimbursement
.
The Company agrees:
(a) to
pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder, including extraordinary
services rendered in connection with or during the continuation of a default hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express trust);
(b) except
as otherwise expressly provided herein, to reimburse each of the Trustee and any predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by it in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), except to the extent any such expense, disbursement
or advance may be attributable to its gross negligence or bad faith; and
(c) to
indemnify each of the Trustee and any predecessor Trustee and each of their respective directors, officers, agents and employees
for, and to hold each of them harmless against, any loss, damage, claim, liability or expense, arising out of or in connection
with the acceptance or administration of the trust or trusts or the performance of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers
or duties hereunder, or in connection with the provisions of this Section, except to the extent any such loss, liability or expense
may be attributable to its own gross negligence or bad faith.
As security for the performance of the obligations
of the Company under this Section, the Trustee shall have a lien prior to the Securities upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the payment of principal of (or premium or Make-Whole Amount, if any) or
interest on particular Securities or any coupons.
When the Trustee incurs expenses or renders
services in connection with an Event of Default specified in
Section 501(g)
or
Section 501(h)
, the expenses
(including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive
the termination of this Indenture or the resignation or removal of the Trustee.
Section 607
Corporate Trustee
Required; Eligibility; Conflicting Interests
.
There shall at all times be a Trustee hereunder
which shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined capital and surplus of at least
$50,000,000 or is a subsidiary of a corporation which shall be a Person that has a combined capital and surplus of at least $50,000,000
and which unconditionally guarantees the obligations of the Trustee hereunder. If such Trustee or Person publishes reports of condition
at least annually, pursuant to law or the requirements of Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such Trustee or Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 608
Resignation and Removal;
Appointment of Successor
.
(a) No
resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of
Section 609
.
(b) The
Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company.
If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The
Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee and to the Company, if at any time:
(i) the
Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at least six months; or
(ii) the
Trustee shall cease to be eligible under
Section 607
and shall fail to resign after written request therefor by the
Company or by any Holder of a Security who has been a bona fide Holder of a Security for at least six months; or
(iii) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then, in any such case, (1) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all Securities, or (2) subject to TIA Section 315(e), any Holder
of a Security who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment
of a successor Trustee or Trustees.
(d) If
the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any
cause with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint
a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be
only one Trustee with respect to the Securities of any particular series). If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed
by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor
Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders
of Securities and accepted appointment in the manner hereinafter provided, any Holder of a Security who has been a bona fide Holder
of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee with respect to Securities of such series.
(e) The
Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any series in the manner provided for notices to the
Holders of Securities in
Section 106
. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 609
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 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 request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of any amounts due and owing to it, its agents or counsel
hereunder, 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, subject nevertheless to its claim, if any, provided for in
Section 606
.
(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, pursuant to
Article Nine
hereof, wherein each successor Trustee shall accept
such appointment and which (1) 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, (2) if the retiring Trustee is not retiring
with respect to all Securities, 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 (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees
of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust
or trusts hereunder administered by any other such Trustee; 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 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, upon payment of any amounts due and owing
to it, its agents or counsel hereunder, duly assign, transfer and deliver to such successor Trustee all 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.
Section 610
Merger, Conversion,
Consolidation or Succession to Business
.
Any corporation into which the Trustee may
be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities or coupons 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 or
coupons so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities or coupons.
In case any Securities or coupons shall not have been authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities or coupons, in either its own name or that of its predecessor Trustee, with the full force
and effect which this Indenture provides for the certificate of authentication of the Trustee.
Section 611
Appointment of Authenticating
Agent
.
At any time when any of the Securities remain
Outstanding, the Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall
be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, registration of transfer
or partial redemption or repayment thereof or pursuant to
Section 306
, 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.
Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, a copy of which
instrument shall be promptly furnished to the Company. Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication
and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the
Trustee by an Authenticating Agent. Each Authenticating Agent shall be reasonably acceptable to the Company and, except as may
otherwise be provided pursuant to
Section 301
, shall at all times be a bank or trust company or corporation organized
and doing business and in good standing under the laws of the United States of America or of any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $25,000,000 and
subject to supervision or examination by Federal or State authorities. If such Authenticating Agent publishes reports of condition
at least annually, pursuant to law or the requirements of the aforesaid supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. In case at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating
Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the execution or filing of any paper or further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent for any series of
Securities may at any time resign by giving written notice of resignation to the Trustee for such series and to the Company. The
Trustee for any series of Securities may at any time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section,
the Trustee for such series may appoint a successor Authenticating Agent which shall be reasonably acceptable to the Company and
shall give notice of such appointment to all Holders of Securities of or within the series with respect to which such Authenticating
Agent will serve in the manner set forth in
Section 106
. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect
as if originally named as an Authenticating Agent herein. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation including reimbursement of its reasonable expenses for its services under this
Section.
If an appointment with respect to one or
more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu
of the Trustee’s certificate of authentication, an alternate certificate of authentication substantially in the following
form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned Indenture.
[______________________],
as Trustee
By: ,
as Authenticating Agent
By:
Name:
Title:
Article Seven
Holders’ Lists and Reports by Trustee and Company
Section 701
Disclosure of Names
and Addresses of Holders
.
Every Holder of Securities or coupons, by
receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any Authenticating
Agent nor any Paying Agent nor any Security Registrar nor any director, officer, agent or employee of any of them shall be held
accountable by reason of the disclosure of any information as to the names and addresses of the Holders of Securities or coupons
in accordance with TIA Section 312, regardless of the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b).
Section 702
Reports by Trustee
.
Within 60 days after March 15 of each year
commencing with the first March 15 after the first issuance of Securities pursuant to this Indenture, the Trustee shall transmit
by mail to all Holders of Securities as provided in TIA Section 313(c) a brief report dated as of such March 15 if and to the extent
required by TIA Section 313(a).
Section 703
Reports by Company
.
(a) The
Company will:
(1) file
with the Trustee, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section
13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant
to either of such Sections, then it will file with the Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(2) file
with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations; and
(3) transmit
by mail to the Holders of Securities, within 30 days after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information, documents and reports required to be filed by the Company pursuant
to paragraphs (1) or (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.
(b) Delivery
of such reports, information and documents to the Trustee in accordance with
Section 703(a)
is for informational purposes
only, and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as
to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee is under no duty to examine
such reports, information or documents to ensure compliance with the provisions of this Indenture or to ascertain the correctness
or otherwise of the information or the statements contained therein. The Trustee is entitled to assume such compliance and correctness
unless a Responsible Officer of the Trustee is informed otherwise.
Section 704
Company to Furnish
Trustee Names and Addresses of Holders
.
The Company will furnish or cause to be
furnished to the Trustee:
(a) semi-annually,
not later than 15 days after the Regular Record Date for interest for each series of Securities, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Registered Securities of such series as of such Regular Record
Date, or if there is no Regular Record Date for interest for such series of Securities, semi-annually, upon such dates as are set
forth in the Board Resolution or indenture supplemental hereto authorizing such series; 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, so long as the Trustee is the Security Registrar, no such lists shall be required to be furnished.
Article Eight
Consolidation, Merger, Sale, Lease or Conveyance
Section 801
Consolidations and
Mergers of Company and Sales, Leases and Conveyances Permitted Subject to Certain Conditions
.
The Company may consolidate with, or sell,
lease or convey all or substantially all of its assets to, or merge with or into any other Person, provided that in any such case,
(a) either the Company shall be the continuing entity, or the successor (if other than the Company) entity shall be a Person organized
and existing under the laws of the United States or a State thereof, or the State of Israel, and such successor entity shall expressly
assume the due and punctual payment of the principal of (and premium or Make-Whole Amount, if any) and any interest (including
all Additional Amounts, if any, payable pursuant to
Section 1007
) on all of the Securities, according to their tenor,
and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by
the Company by supplemental indenture, complying with
Article Nine
hereof, satisfactory to the Trustee, executed and
delivered to the Trustee by such Person and (b) immediately after giving effect to such transaction and treating any indebtedness
which becomes an obligation of the Company or any Subsidiary as a result thereof as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or the lapse of time, or both,
would become an Event of Default, shall have occurred and be continuing.
Section 802
Rights and Duties
of Successor Corporation
.
In case of any such consolidation, merger,
sale, lease or conveyance and upon any such assumption by the successor entity, such successor entity shall succeed to and be substituted
for the Company, with the same effect as if it had been named herein as the party of the first part, and the predecessor entity,
except in the event of a lease, shall be relieved of any further obligation under this Indenture and the Securities. Such successor
entity thereupon may cause to be signed, and may issue either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon
the order of such successor entity, instead of the Company, and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered
by the officers of the Company to the Trustee for authentication, and any Securities which such successor entity thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger,
sale, lease or conveyance, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter
to be issued as may be appropriate.
Section 803
Officers’ Certificate
and Opinion of Counsel
.
Any consolidation, merger, sale, lease or
conveyance permitted under
Section 801
is also subject to the condition that the Trustee receive an Officers’
Certificate and an Opinion of Counsel to the effect that any such consolidation, merger, sale, lease or conveyance, and the assumption
by any successor entity, complies with the provisions of this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
Article Nine
Supplemental Indentures
Section 901
Supplemental Indentures
Without Consent of Holders
.
Without the consent of any Holders of Securities
or coupons, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a) to
evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company
herein and in the Securities contained; or
(b) to
add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and, if such covenants are
to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred upon the Company; or
(c) to
add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating that such Events of Default are expressly being included
solely for the benefit of such series); provided, however, that in respect of any such additional Events of Default such supplemental
indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of a majority in aggregate principal amount of that or those
series of Securities to which such additional Events of Default apply to waive such default; or
(d) to
add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal of or any premium, Make-Whole Amount or Interest on Bearer
Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued
in exchange for Bearer Securities of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated
form, provided that any such action shall not adversely affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(e) to
add to, change or eliminate any of the provisions of this Indenture in respect of any series of Securities, provided that any such
addition, change or elimination shall (1) neither (i) apply to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision, nor (ii) modify the rights of the Holder of any such Security
with respect to such provision; or (2) become effective only when there is no Outstanding Security; or
(f) to
secure the Securities; or
(g) to
establish the form or terms of Securities of any series and any related coupons as permitted by
Section 201
and
Section 301
,
including (1) the provisions and procedures relating to Securities convertible into or exchangeable for other securities or property
of the Company or (2) the addition or modification of any of the provisions of this Indenture as shall be necessary or desirable
to provide for or facilitate the guarantee of such Securities by one or more Guarantors; or
(h) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee; or
(i) to
make provision for the subordination of Securities of a series or to make provision with respect to the conversion or exchange
rights of Holders pursuant to the requirements of
Article Sixteen
, including providing for the conversion or exchange
of the Securities into any security or property of the Company or any other issuer; or
(j) to
cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture or to make any other changes, provided that in each case, such provisions shall not adversely
affect the interests of the Holders of Securities of any series or any related coupons in any material respect; or
(k) to
close this Indenture with respect to the authentication and delivery of additional series of Securities or to qualify, or maintain
qualification of, this Indenture under the TIA; or
(l) to
amend Schedule I attached hereto to add and/or remove one or more Guarantors; provided, that no such amendment shall remove any
Guarantor that has guaranteed any Outstanding Securities hereunder; or
(m) to
supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of Securities pursuant to
Section 401
,
Section 1402
and
Section 1403
;
provided in each case that any such action shall not adversely affect the interests of the Holders of Securities of such series
and any related coupons or any other series of Securities in any material respect.
Section 902
Supplemental Indentures
With Consent of Holders
.
With the consent of the Holders of not less
than a majority in principal amount of all Outstanding Securities affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities and
any related coupons under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of
the Holder of each Outstanding Security affected thereby:
(a) change
the Stated Maturity of the principal of (or premium or Make-Whole Amount, if any, on) or any installment of principal of or interest
on, any Security; or reduce the principal amount thereof or the rate or amount of interest thereon or any Additional Amounts payable
in respect thereof, or any premium or Make-Whole Amount payable upon the redemption thereof, or change any obligation of the Company
to pay Additional Amounts pursuant to
Section 1007
(except as contemplated by
Section 801
and permitted
by
Section 901(a)
), or reduce the amount of the principal of an Original Issue Discount Security or Make-Whole Amount,
if any, that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502
or the amount thereof provable in bankruptcy pursuant to
Section 504
, or adversely affect any right of repayment at
the option of the Holder of any Security, or change any Place of Payment where, or the currency or currencies, currency unit or
units or composite currency or currencies in which, the principal of any Security or any premium or Make-Whole Amount or any Additional
Amounts payable in respect thereof or the interest thereon is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment at the option of the Holder,
on or after the Redemption Date or the Repayment Date, as the case may be); or
(b) reduce
the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for any waiver with respect to such series (or compliance
with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture,
or reduce the requirements of
Section 1504
for quorum or voting; or
(c) modify
any of the provisions of this Section,
Section 513
or
Section 1008
, except to increase the required percentage
to effect such action or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby;
(d) make
any change that adversely affects the right to convert or exchange any Security as provided in
Article Sixteen
or pursuant
to
Section 301
(except as permitted by
Section 901(i)
) or decrease the conversion or exchange rate or increase
the conversion or exchange price of any such Security; or
(e) modify
the Guarantees in any manner adverse to the Holders or make any amendment referred to in the proviso to
Section 901(l)
.
It shall not be necessary for any Act of
Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if
such Act shall approve the substance thereof.
A supplemental indenture which changes or
eliminates any covenant or other provision of this Indenture which has expressly been included for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
Section 903
Execution of Supplemental
Indentures
.
In executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Officers’ Certificate
and Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and
that all conditions precedent to the execution of such supplemental indenture have been complied with. The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise.
Section 904
Effect of Supplemental
Indentures
.
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part
of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupon appertaining thereto shall be bound thereby.
Section 905
Conformity with Trust
Indenture Act
.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 906
Reference in Securities
to Supplemental Indentures
.
Securities of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and authenticated and delivered (which delivery, in the case
of Bearer Securities, shall occur only outside the United States) by the Trustee in exchange for Outstanding Securities of such
series.
Section 907
Notice of Supplemental
Indentures
.
Promptly after the execution by the Company
and the Trustee of any supplemental indenture pursuant to the provisions of
Section 902
, the Company shall give notice
thereof to the Holders of each Outstanding Security affected, in the manner provided for in
Section 106
, setting forth
in general terms the substance of such supplemental indenture.
Article Ten
Covenants
Section 1001
Payment of Principal,
Premium or Make-Whole Amount, if any, Interest and Additional Amounts
.
The Company covenants and agrees for the
benefit of the Holders of each series of Securities that it will duly and punctually pay the principal of (and premium or Make-Whole
Amount, if any) and interest on and any Additional Amounts payable in respect of the Securities of that series in accordance with
the terms of such series of Securities, any coupons appertaining thereto and this Indenture. Unless otherwise specified as contemplated
by
Section 301
with respect to any series of Securities, any interest due on and any Additional Amounts payable in
respect of Bearer Securities on or before Maturity, other than Additional Amounts, if any, payable as provided in
Section 1007
in respect of principal of (or premium or Make-Whole Amount, if any, on) such a Security, shall be payable only upon presentation
and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature. Unless otherwise
specified with respect to Securities of any series pursuant to
Section 301
, at the option of the Company, all payments
of principal may be paid by check to the registered Holder of the Registered Security or other person entitled thereto against
surrender of such Security.
Section 1002
Maintenance of Office
or Agency
.
If Securities of a series are issuable only
as Registered Securities, the Company shall maintain in each Place of Payment for any series of Securities an office or agency
where Securities of that series may be presented or surrendered for payment or conversion, where Securities of that series may
be surrendered for registration of transfer or exchange, where Securities of that series may be converted or exchanged in accordance
with
Article Sixteen
and where notices and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company will maintain: (a) in
the Borough of Manhattan, the City of New York, an office or agency where any Registered Securities of that series may be presented
or surrendered for payment or conversion, where any Registered Securities of that series may be surrendered for exchange, where
notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served and where
Bearer Securities of that series and related coupons may be presented or surrendered for payment or conversion in the circumstances
described in the following paragraph (and not otherwise); (b) subject to any laws or regulations applicable thereto, in a Place
of Payment for that series which is located outside the United States, an office or agency where Securities of that series and
related coupons may be presented and surrendered for payment (including payment of any Additional Amounts payable on Securities
of that series pursuant to
Section 1007
) or conversion; provided, however, that if the Securities of that series are
listed on the Luxembourg Stock Exchange, The International Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company will maintain a Paying Agent for the Securities of that series in
Luxembourg, London or any other required city located outside the United States, as the case may be, so long as the Securities
of that series are listed on such exchange; and (c) subject to any laws or regulations applicable thereto, in each Place of Payment
for that series located outside the United States an office or agency where any Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of each such office or agency. 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,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, except that Bearer Securities
of that series and the related coupons may be presented and surrendered for payment (including payment of any Additional Amounts
payable on Bearer Securities of that series pursuant to
Section 1007
) at the offices specified in the Security, in
London, England, and the Company hereby appoints the same as its agent to receive such respective presentations, surrenders, notices
and demands.
Unless otherwise specified with respect
to any Securities pursuant to
Section 301
, no payment of principal, premium, Make-Whole Amount or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided,
however, that, if the Securities of a series are payable in Dollars, payment of principal of and any premium and interest on any
Bearer Security (including any Additional Amounts or Make-Whole Amount payable on Securities of such series pursuant to
Section 1007
)
shall be made at the office of the Company’s Paying Agent in the Borough of Manhattan, the City of New York, if (but only
if) payment in Dollars of the full amount of such principal, premium, interest, Additional Amounts or Make-Whole Amount, as the
case may be, at all offices or agencies outside the United States maintained for the purpose by the Company in accordance with
this Indenture, is illegal or effectively precluded by exchange controls or other similar restrictions.
The Company may from time to time designate
one or more other offices or agencies where the Securities of one or more series and related coupons, if any, may be presented
or surrendered for any or all of such purposes, and may from time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in accordance
with the requirements set forth above for Securities of any series for such purposes. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Unless otherwise specified with respect
to any Securities pursuant to
Section 301
, if and so long as the Securities of any series are denominated in a Foreign
Currency or may be payable in a Foreign Currency, or so long as it is required under any other provision of the Indenture, then
the Company will maintain with respect to each such series of Securities, or as so required, at least one exchange rate agent.
Section 1003
Money for Securities
Payments to Be Held in Trust
.
If the Company shall at any time act as
its own Paying Agent with respect to any series of any Securities and any related coupons, it will, on or before each due date
of the principal of (and premium or Make-Whole Amount, if any), or interest on or Additional Amounts in respect of, any of the
Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the currency or
currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except
as otherwise specified pursuant to
Section 301
for the Securities of such series) sufficient to pay the principal (and
premium or Make-Whole Amount, if any) or interest or Additional Amounts so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the Trustee, in writing, of its action or failure so to act.
Whenever the Company shall have one or more
Paying Agents for any series of Securities and any related coupons, it will, on or before each due date of the principal of (and
premium or Make-Whole Amount, if any), or interest on or Additional Amounts in respect of, any Securities of that series, deposit
with a Paying Agent a sum (in the currency or currencies, currency unit or units or composite currency or currencies described
in the preceding paragraph) sufficient to pay the principal (and premium or Make-Whole Amount, if any) or interest or Additional
Amounts, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium, Make-Whole
Amount or interest or Additional Amounts and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee,
in writing, of its action or failure so to act.
The Company will cause each Paying Agent
other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(a) hold
all sums held by it for the payment of principal of (and premium or Make-Whole Amount, if any) or interest on Securities or Additional
Amounts in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(b) give
the Trustee notice of any default by the Company (or any other obligor upon the Securities) in the making of any such payment of
principal (and premium or Make-Whole Amount, if any) or interest or Additional Amounts; and
(c) at
any time during the continuance of any such default upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
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 by Company Order 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 trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.
Except as otherwise provided in the Securities
of any series, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment
of the principal of (and premium or Make-Whole Amount, if any) or interest on, or any Additional Amounts in respect of, any Security
of any series and remaining unclaimed for two years after such principal (and premium or Make-Whole Amount, if any), interest or
Additional Amounts has become due and payable shall be paid to the Company upon Company Request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only
to the Company for payment of such principal of (and premium or Make-Whole Amount, if any) or interest on, or any Additional Amounts
in respect of, any Security, without interest thereon, and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once,
in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date specified therein, which shall not
be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the
Company.
Section 1004
(Omitted)
.
Section 1005
Provision of Financial
Information
.
Whether or not the Company is subject to
Section 13 or 15(d) of the Exchange Act, the Company will, to the extent permitted under the Exchange Act, file with the Commission
the annual reports and other documents which the Company would have been required to file with the Commission pursuant to such
Section 13 or 15(d) (the “
Financial Statements
”) if the Company were so subject, such documents to be filed
with the Commission on or prior to the respective dates (the “
Required Filing Dates
”) by which the Company would
have been required so to file such documents if the Company were so subject.
The Company will also in any event (a) within
15 days of each Required Filing Date (1) transmit by mail to all Holders, as their names and addresses appear in the Security Register,
without cost to such Holders, copies of the annual reports which the Company would have been required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act if the Company were subject to such Sections, and (2) file with the Trustee
copies of annual reports and other documents which the Company would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act if the Company were subject to such Sections, and (b) if filing such documents by the Company
with the Commission is not permitted under the Exchange Act, promptly upon written request and payment of the reasonable cost of
duplication and delivery, supply copies of such documents to any prospective Holder.
Section 1006
Statement as to
Compliance
.
The Company and the Guarantors will deliver
to the Trustee within 120 days after the end of each fiscal year, a brief certificate from the principal executive officer, principal
financial officer or principal accounting officer of each of the Company and each Guarantor as to his or her knowledge of the Company’s
and each Guarantor’s compliance with all conditions and covenants under this Indenture and, in the event of any noncompliance,
specifying such noncompliance and the nature and status thereof. For purposes of this
Section 1006
, such compliance
shall be determined without regard to any period of grace or requirement of notice under this Indenture.
Section 1007
Additional Amounts
.
If any Securities of a series provide for
the payment of Additional Amounts, the Company will pay to the Holder of any Security of such series or any coupon appertaining
thereto Additional Amounts as may be specified as contemplated by
Section 301
. Whenever in this Indenture there is
mentioned, in any context except in the case of
Section 502(a)
, the payment of the principal of or any premium, Make-Whole
Amount or interest on, or in respect of, any Security of any series or payment of any related coupon or the net proceeds received
on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established pursuant to
Section 301
to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to such terms and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise specified as contemplated
by
Section 301
, if the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior
to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior
to each date of payment of principal and any premium or Make-Whole Amount or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers’ Certificate, the Company will furnish the Trustee and the Company’s
principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers’ Certificate instructing the Trustee
and such Paying Agent or Paying Agents whether such payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related coupons who are not United States persons without withholding
for or on account of any tax, assessment or other governmental charge described in the Securities of or within the series. If any
such withholding shall be required, then such Officers’ Certificate shall specify by country the amount, if any, required
to be withheld on such payments to such Holders of Securities of that series or related coupons and the Company will pay to the
Trustee or such Paying Agent the Additional Amounts, if any, required by the terms of such Securities. In the event that the Trustee
or any Paying Agent, as the case may be, shall not so receive the abovementioned certificate, then the Trustee or such Paying Agent
shall be entitled (a) to assume that no such withholding or deduction is required with respect to any payment of principal or interest
with respect to any Securities of a series or related coupons until it shall have received a certificate advising otherwise and
(b) to make all payments of principal and interest with respect to the Securities of a series or related coupons without withholding
or deductions until otherwise advised. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without gross negligence or bad faith on their part arising
out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant
to this Section or in reliance on the Company’s not furnishing such an Officers’ Certificate.
Section 1008
Waiver of Certain
Covenants
.
The Company and the Guarantors may omit
in any particular instance to comply with any term, provision or condition set forth in
Section 1005
and with any other
term, provision or condition with respect to the Securities of any series specified in accordance with
Section 301
(except any such term, provision or condition which could not be amended without the consent of all Holders of Securities of such
series pursuant to
Section 902
), if before or after the time for such compliance the Holders of at least a majority
in principal amount of all Outstanding Securities of such series, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant
or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company,
the Guarantors and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and
effect.
Article Eleven
Redemption of Securities
Section 1101
Applicability of
Article
.
Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated
by
Section 301
for Securities of any series) in accordance with this Article.
Section 1102
Election to Redeem;
Notice to Trustee
.
The election of the Company to redeem any
Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company of
less than all of the Securities of any series, the Company shall, at least 60 days prior to the giving of the notice of redemption
in
Section 1104
(unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed. The Company shall deliver an Officers’ Certificate
and Opinion of Counsel to the Trustee on or prior to each Redemption Date.
Section 1103
Selection by Trustee
of Securities to Be Redeemed
.
If less than all the Securities of any series
issued on the same day with the same terms are to be redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series issued on such date with
the same terms not previously called for redemption, by such method as the Trustee shall deem fair and appropriate, subject to
applicable law, and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination
for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company
and the Security Registrar (if other than itself) in writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
Section 1104
Notice of Redemption
.
Notice of redemption shall be given in the
manner provided in
Section 106
, not less than 30 days nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified by the terms of such series established pursuant to
Section 301
, to each Holder of Securities
to be redeemed, but failure to give such notice in the manner herein provided to the Holder of any Security designated for redemption
as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the
redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders
of Registered Securities in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice.
All notices of redemption shall state:
(a) the
Redemption Date;
(b) the
Redemption Price, accrued interest to the Redemption Date payable as provided in
Section 1106
, if any, and Additional
Amounts, if any;
(c) if
less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Security or Securities to be redeemed;
(d) in
case any Security is to be redeemed in part only, that on and after the Redemption Date, upon surrender of such Security, the holder
will receive, without a charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining
unredeemed;
(e) that
on the Redemption Date the Redemption Price and accrued interest to the Redemption Date payable as provided in
Section 1106
,
if any, will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date;
(f) the
Place or Places of Payment (which, in the case of Bearer Securities, shall be outside the United States) where such Securities,
together in the case of Bearer Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment of the Redemption Price and accrued interest, if any, or for conversion;
(g) that
the redemption is for a sinking fund, if such is the case;
(h) that,
unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied
by all coupons maturing subsequent to the date fixed for redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity satisfactory to the Company, the Trustee for such series and any
Paying Agent is furnished;
(i) if
Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not subject to the redemption on this Redemption Date pursuant
to
Section 305
or otherwise, the last date, as determined by the Company, on which such exchanges may be made;
(j) the
CUSIP number of such Security, if any, provided that neither the Company nor the Trustee shall have any responsibility for any
such CUSIP number; and
(k) if
applicable, that a Holder of Securities who desires to convert Securities to be redeemed must satisfy the requirements for conversion
contained in such Securities, the then existing conversion price or rate and the date and time when the option to convert shall
expire.
Notice of redemption of Securities to be
redeemed shall be prepared by the Company and shall be given by the Company or, at the Company’s request, by the Trustee
in the name and at the expense of the Company.
Section 1105
Deposit of Redemption
Price
.
On or prior to any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, which it may
not do in the case of a sinking fund payment under
Article Twelve
, segregate and hold in trust as provided in
Section 1003
)
an amount of money in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 301
for the Securities of such series)
sufficient to pay on the Redemption Date the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment
Date) accrued interest on, all the Securities or portions thereof which are to be redeemed on that date.
Section 1106
Securities Payable
on Redemption Date
.
Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein
specified in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of
such series are payable (except as otherwise specified pursuant to
Section 301
for the Securities of such series) (together
with accrued interest, if any, to the Redemption Date), and from and after such date (unless the Company shall default in the payment
of the Redemption Price and accrued interest) such Securities shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below,
shall be void. Upon surrender of any such Security for redemption in accordance with said notice, together with all coupons, if
any, appertaining thereto maturing after the Redemption Date, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest, if any, to the Redemption Date; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or agency located outside the United
States (except as otherwise provided in
Section 1002
) and, unless otherwise specified as contemplated by
Section 301
,
only upon presentation and surrender of coupons for such interest; and provided further that except as otherwise provided with
respect to Securities convertible into Capital Stock, installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant record dates according to their terms and the provisions of
Section 307
.
If any Bearer Security surrendered for redemption
shall not be accompanied by all appurtenant coupons maturing after the Redemption Date, such Security may be paid after deducting
from the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon
or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or
any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that interest represented by coupons shall be payable only
at an office or agency located outside the United States (except as otherwise provided in
Section 1002
) and, unless
otherwise specified as contemplated by
Section 301
, only upon presentation and surrender of those coupons. If any Security
called for redemption shall not be so paid upon surrender thereof for redemption, the principal, (and premium or Make-Whole Amount,
if any) shall, until paid, bear interest from the Redemption Date at the rate borne by the Security.
Section 1107
Securities Redeemed
in Part
.
Any Security which is to be redeemed only
in part (pursuant to the provisions of this Article or of
Article Twelve
) shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of such Security without service charge a new Security
or Securities of the same series, of any authorized denomination as requested by such Holder in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
Article Twelve
Sinking Funds
Section 1201
Applicability of
Article
.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by
Section 301
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 such Securities of any series is herein referred
to as an “
optional sinking fund payment.
” If provided for by the terms of any Securities of any series, the
cash amount of any mandatory sinking fund payment may be subject to reduction as provided in
Section 1202
. 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 1202
Satisfaction of
Sinking Fund Payments with Securities
.
The Company may, in satisfaction of all
or any part of any mandatory sinking fund payment with respect to the Securities of a series, (a) deliver Outstanding Securities
of such series (other than any previously called for redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto and (b) apply as a credit Securities of such series which 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, as provided for by the terms of such Securities, or which have otherwise
been acquired by the Company; provided that such Securities so delivered or applied as a credit have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee at the applicable Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall
be reduced accordingly.
Section 1203
Redemption of Securities
for Sinking Fund
.
Not less than 60 days prior to each sinking
fund payment date for Securities of any series, the Company will deliver to the Trustee an Officers’ Certificate specifying
the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to
Section 301
for the Securities of such series) and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to
Section 1202
, and the optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and will also deliver to the Trustee any Securities to be so delivered and credited. If such Officers’
Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the Company
shall thereupon be obligated to pay the amount therein specified. 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 1103
and cause notice of the redemption thereof, which shall be prepared by the Company, to be given in the name of and at the expense
of the Company in the manner provided in
Section 1104
. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in
Section 1106
and
Section 1107
.
Article Thirteen
Repayment at the Option of Holders
Section 1301
Applicability of
Article
.
Repayment of Securities of any series before
their Stated Maturity at the option of Holders thereof shall be made in accordance with the terms of such Securities, if any, and
(except as otherwise specified by the terms of such series established pursuant to
Section 301
) in accordance with
this Article.
Section 1302
Repayment of Securities
.
Securities of any series subject to repayment
in whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms of such Securities, be repaid
at a price equal to the principal amount thereon, together with interest, if any, thereof accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that on or before the Repayment Date it will deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided
in
Section 1003
) an amount of money in the currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as otherwise specified pursuant to
Section 301
for the Securities of such series) sufficient to pay the principal (or, if so provided by the terms of the Securities of any series,
a percentage of the principal) of, and (except if the Repayment Date shall be an Interest Payment Date) accrued interest on, all
the Securities or portion thereof, as the case may be, to be repaid on such date.
Section 1303
Exercise of Option
.
Securities of any series subject to repayment
at the option of the Holders thereof will contain an “
Option to Elect Repayment
” form on the reverse of such
Securities. In order for any Security to be repaid at the option of the Holder, the Trustee must receive at the Place of Payment
therefor specified in the terms of such Security (or at such other place or places of which the Company shall from time to time
notify the Holders of such Securities) not earlier than 60 days nor later than 30 days prior to the Repayment Date (a) the Security
so providing for such repayment together with the “
Option to Elect Repayment
” form on the reverse thereof duly
completed by the Holder (or by the Holder’ attorney duly authorized in writing) or (b) a telex, facsimile transmission or
a letter from a member of a national securities exchange, or the Financial Industry Regulatory Authority, or a commercial bank
or trust company in the United States setting forth the name of the Holder of the Security, the principal amount of the Security,
the principal amount of the Security to be repaid, the CUSIP number, if any, or a description of the tenor and terms of the Security,
a statement that the option to elect repayment is being exercised thereby and a guarantee that the Security to be repaid, together
with the duly completed form entitled “
Option to Elect Repayment
” on the reverse of the Security, will be received
by the Trustee not later than the fifth Business Day after the date of such telex, facsimile transmission or letter; provided,
however, that such telex, facsimile transmission or letter shall only be effective if such Security and form duly completed are
received by the Trustee by such fifth Business Day. If less than the entire principal amount of such Security is to be repaid in
accordance with the terms of such Security, the principal amount of such Security to be repaid, in increments of the minimum denomination
for Securities of such series, and the denomination or denominations of the Security or Securities to be issued to the Holder for
the portion of the principal amount of such Security surrendered that is not to be repaid, must be specified. The principal amount
of any Security providing for repayment at the option of the Holder thereof may not be repaid in part if, following such repayment,
the unpaid principal amount of such Security would be less than the minimum authorized denomination of Securities of or within
the series of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of any Security providing
for repayment at the option of the Holder thereof, exercise of the repayment option by the Holder shall be irrevocable unless waived
by the Company.
Section 1304
When Securities
Presented for Repayment Become Due and Payable
.
If Securities of any series providing for
repayment at the option of the Holders thereof shall have been surrendered as provided in this Article and as provided by or pursuant
to the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein specified, and on and after such Repayment Date (unless
the Company shall default in the payment of such Securities on such Repayment Date) such Securities shall, if the same were interest
bearing, cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be repaid, except
to the extent provided below, shall be void. Upon surrender of any such Security for repayment in accordance with such provisions,
together with all coupons, if any, appertaining thereto maturing after the Repayment Date, the principal amount of such security
so to be repaid shall be paid by the Company, together with accrued interest, if any, to the Repayment Date; provided, however,
that coupons whose Stated Maturity is on or prior to the Repayment Date shall be payable only at an office or agency located outside
the United States (except as otherwise provided in
Section 1002
) and, unless otherwise specified pursuant to
Section 301
,
only upon presentation and surrender of such coupons; and provided further that, in the case of Registered Securities, installments
of interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable (but without interest thereon,
unless the Company shall default in the payment thereof) to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant record dates according to their terms and the provisions of
Section 307
.
If any Bearer Security surrendered for repayment
shall not be accompanied by all appurtenant coupons maturing after the Repayment Date, such Security may be paid after deducting
from the amount payment therefor as provided in
Section 1302
an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished
to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder
of such Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall
have been made as provided in the preceding sentence, such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office or agency located outside the United States (except
as otherwise provided in
Section 1002
) and, unless otherwise specified as contemplated by
Section 301
,
only upon presentation and surrender of those coupons. If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with interest, if any, thereon accrued to such Repayment
Date) shall, until paid, bear interest from the Repayment Date at the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) set forth in such Security.
Section 1305
Securities Repaid
in Part
.
Upon surrender of any Registered Security
which is to be repaid in part only, the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new Registered Security or Securities of the same series,
of any authorized denomination specified by the Holder, in an aggregate principal amount equal to and in exchange for the portion
of the principal of such Security so surrendered which is not to be repaid.
Article Fourteen
Defeasance and Covenant Defeasance
Section 1401
Applicability of
Article; Company’s Option to Effect Defeasance or Covenant Defeasance
.
If, pursuant to
Section 301
,
provision is made for either or both of (a) defeasance of the Securities of or within a series under
Section 1402
or
(b) covenant defeasance of the Securities of or within a series under
Section 1403
to be applicable to the Securities
of any series, then the provisions of such Section or Sections, as the case may be, together with the other provisions of this
Article (with such modifications thereto as may be specified pursuant to
Section 301
with respect to any Securities),
shall be applicable to such Securities and any coupons appertaining thereto, and the Company may at its option by Board Resolution
at any time, with respect to such Securities and any coupons appertaining thereto, elect to defease such Outstanding Securities
and any coupons appertaining thereto pursuant to
Section 1402
(if applicable) or
Section 1403
(if applicable)
upon compliance with the conditions set forth below in this Article.
Section 1402
Defeasance and Discharge
.
Upon the Company’s exercise of the
above option applicable to this Section with respect to any Securities of or within a series, the Company and the Guarantors shall
be deemed to have been discharged from its obligations with respect to such Outstanding Securities and any coupons appertaining
thereto on the date the conditions set forth in
Section 1404
are satisfied (hereinafter, “
defeasance
”).
For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented
by such Outstanding Securities and any coupons appertaining thereto, which shall thereafter be deemed to be “
Outstanding
”
only for the purposes of
Section 1405
and the other Sections of this Indenture referred to in clauses (A) and (B) below,
and to have satisfied all of its other obligations under such Securities and any coupons appertaining thereto and this Indenture
insofar as such Securities and any coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of such Outstanding Securities and any coupons appertaining thereto to receive,
solely from the trust fund described in
Section 1404
and as more fully set forth in such Section, payments in respect
of the principal of (and premium or Make-Whole Amount, if any) and interest, if any, on such Securities and any coupons appertaining
thereto when such payments are due, (B) the Company’s obligations with respect to such Securities under
Sections 305
,
306
,
1002
and
1003
and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated
by
Section 1007
, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (D) this Article.
Subject to compliance with this
Article Fourteen
, the Company may exercise its option under this Section notwithstanding
the prior exercise of its option under
Section 1403
with respect to such Securities and any coupons appertaining thereto.
Section 1403
Covenant Defeasance
.
Upon the Company’s exercise of the
above option applicable to this Section with respect to any Securities of or within a series, the Company and the Guarantors shall
be released from its obligations under
Section 1005
, and, if specified pursuant to
Section 301
, its obligations
under any other covenant, with respect to such Outstanding Securities and any coupons appertaining thereto on and after the date
the conditions set forth in
Section 1404
are satisfied (hereinafter, “
covenant defeasance
”), and
such Securities and any coupons appertaining thereto shall thereafter be deemed to be not “
Outstanding
” for
the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection
with
Section 1005
, or such other covenant, but shall continue to be deemed “
Outstanding
” for all
other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities and
any coupons appertaining thereto, the Company may omit to comply with and shall have no liability in respect of any term, condition
or limitation set forth in any such Section or such other covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant
to any other provision herein or in any other document and such omission to comply shall not constitute a default or an Event of
Default under
Section 501(d)
or
Section 501(i)
or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and such Securities and any coupons appertaining thereto shall be unaffected thereby.
Section 1404
Conditions to Defeasance
or Covenant Defeasance
.
The following shall be the conditions to
application of
Section 1402
or
Section 1403
to any Outstanding Securities of or within a series and any
coupons appertaining thereto:
(a) The
Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements
of
Section 607
who shall agree to comply with the provisions of this
Article Fourteen
applicable to it)
as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any coupons appertaining thereto, (1) an amount in such currency, currencies
or currency unit in which such Securities and any coupons appertaining thereto are then specified as payable at Stated Maturity,
or (2) Government Obligations applicable to such Securities and coupons appertaining thereto (determined on the basis of the currency,
currencies or currency unit in which such Securities and coupons appertaining thereto are then specified as payable at Stated Maturity)
which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment of principal of (and premium or Make-Whole Amount, if any) and interest,
if any, on such Securities and any coupons appertaining thereto, money in an amount, or (3) a combination thereof in an amount,
sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium
or Make-Whole Amount, if any) and interest, if any, on such Outstanding Securities and any coupons appertaining thereto on the
Stated Maturity of such principal or installment of principal or interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any coupons appertaining thereto on the day on which such payments are due
and payable in accordance with the terms of this Indenture and of such Securities and any coupons appertaining thereto; provided,
that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Obligations to said
payments with respect to such Securities. Before such a deposit, the Company may give to the Trustee, in accordance with
Section 1102
hereof, a notice of its election to redeem all or any portion of such Outstanding Securities at a future date in accordance with
the terms of the Securities of such series and
Article Eleven
hereof, which notice shall be irrevocable. Such irrevocable
redemption notice, if given, shall be given effect in applying the foregoing.
(b) Such
defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party or by which it is bound (and shall not cause the Trustee
to have a conflicting interest pursuant to Section 310(b) of the TIA with respect to any Security of the Company).
(c) No
Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing on the date of such deposit or, insofar as
Section 501(g)
and
Section 501(h)
are concerned, at any time during the period ending on the 91st day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(d) In
the case of an election under
Section 1402
, the Company shall have delivered to the Trustee an Opinion of Counsel stating
that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (2) since the
date of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance
had not occurred.
(e) In
the case of an election under
Section 1403
, the Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Outstanding Securities and any coupons appertaining thereto will not recognize income, gain
or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.
(f) The
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under
Section 1402
or the covenant defeasance under
Section 1403
(as the case
may be) have been complied with and an Opinion of Counsel to the effect that either (1) as a result of a deposit pursuant to subsection
(a) above and the related exercise of the Company’s option under
Section 1402
or
Section 1403
(as
the case may be) registration is not required under the Investment Company Act of 1940, as amended, by the Company, with respect
to the trust funds representing such deposit or by the Trustee for such trust funds or (2) all necessary registrations under said
Act have been effected.
(g) After
the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally.
(h) Notwithstanding
any other provisions of this Section, such defeasance or covenant defeasance shall be effected in compliance with any additional
or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to
Section 301
.
Section 1405
Deposited Money
and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions
.
Subject to the provisions of the last paragraph
of
Section 1003
, all money and Government Obligations (or other property as may be provided pursuant to
Section 301
)
(including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1405
,
the “
Trustee
”) pursuant to
Section 1404
in respect of any Outstanding Securities of any series and
any coupons appertaining thereto shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities
and any coupons appertaining thereto and this Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and premium or Make-Whole Amount, if any) and interest
and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect
to any Security pursuant to
Section 301
, if, after a deposit referred to in
Section 1404(a)
has been made,
(a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to
Section 301
or the terms of such Security to receive payment in a currency or currency unit other than that in which the deposit pursuant to
Section 1404(a)
has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the currency
or currency unit in which the deposit pursuant to
Section 1404(a)
has been made, the indebtedness represented by such
Security and any coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through
the payment of the principal of (and premium or Make-Whole Amount, if any), and interest, if any, on such Security as the same
becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the
amount or other property deposited in respect of such Security into the currency or currency unit in which such Security becomes
payable as a result of such election or Conversion Event based on the applicable market exchange rate for such currency or currency
unit in effect on the second Business Day prior to each payment date, except, with respect to a Conversion Event, for such currency
or currency unit in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to
Section 1404
or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any coupons appertaining thereto.
Anything in this Article to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government
Obligations (or other property and any proceeds therefrom) held by it as provided in
Section 1404
which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance,
as applicable, in accordance with this Article.
Section 1406
Reinstatement
.
If the Trustee or Paying Agent is unable
to apply any money in accordance with
Section 1405
with respect to any Securities by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company's obligations
under this Indenture and such Securities and any related coupons shall be revived and reinstated as though no deposit had occurred
pursuant to
Section 1402
or
Section 1403
, as the case may be, until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with
Section 1405
; provided, however, that if the Company
makes any payment of principal of (or premium, if any) or interest, if any, on any such Security or any related coupon following
the reinstatement of its obligations, if any, on any such Security or any related coupon following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities and any related coupons to receive such payment
from the money held by the Trustee or Paying Agent.
Article Fifteen
Meetings of Holders of Securities
Section 1501
Purposes for Which
Meetings May Be Called
.
A meeting of Holders of Securities of any
series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 1502
Call, Notice and
Place of Meetings
.
(a) The
Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in
Section 1501
,
to be held at such time and at such place in the Borough of Manhattan, the City of New York, or in London as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in
Section 106
,
not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In
case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any
purpose specified in
Section 1501
, by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or
the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place
in the Borough of Manhattan, the City of New York, or in London for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this Section.
Section 1503
Persons Entitled
to Vote at Meetings
.
To be entitled to vote at any meeting of
Holders of Securities of any series, a Person shall be (a) a Holder of one or more Outstanding Securities of such series, or (b)
a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series
by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities
of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
Section 1504
Quorum; Action
.
The Persons entitled to vote a majority
in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities
of such series; provided, however, that if any action is to be taken at such meeting with respect to a consent or waiver which
this Indenture expressly provides may be given by the Holders of not less than a specified percentage in principal amount of the
Outstanding Securities of a series, the Persons entitled to vote such specified percentage in principal amount of the Outstanding
Securities of such series shall constitute a quorum. In the absence of a quorum within 30 minutes after the time appointed for
any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1502(a)
, except that such
notice need be given only once not less than five (5) days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of any adjourned meeting shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series which shall constitute a quorum. Except as limited by the proviso to
Section 902
,
any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted
by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of that series; provided,
however, that, except as limited by the proviso to
Section 902
, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be made, given or
taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities
of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by
the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken
at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders
of Securities of such series and the related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions
of this
Section 1504
, if any action is to be taken at a meeting of Holders of Securities of any series with respect
to any request, demand, authorization, direction, notice, consent, waiver or other action that this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage in principal amount of all Outstanding Securities affected
thereby, or of the Holders of such series and one or more additional series:
(a) there
shall be no minimum quorum requirement for such meeting; and
(b) the
principal amount of the Outstanding Securities of such series that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or taken under this Indenture.
Section 1505
Determination of
Voting Rights; Conduct and Adjournment of Meetings
.
(a) Notwithstanding
any provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified
in
Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104
or by having the signature of the Person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized
by
Section 104
to certify to the holding of Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in
Section 104
or other proof.
(b) The
Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in
Section 1502(b)
, in which case the Company or the Holders
of Securities of or within the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series represented at the meeting.
(c) At
any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of
the Outstanding Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted
at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any
meeting of Holders of Securities of any series duly called pursuant to
Section 1502
at which a quorum is present may
be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such
series represented at the meeting, and the meeting may be held as so adjourned without further notice.
Section 1506
Counting Votes and
Recording Action of Meetings
.
The vote upon any resolution submitted to
any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding
Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached
to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the fact, setting forth a copy of the notice of the meeting and showing that said notice was given
as provided in
Section 1502
and, if applicable,
Section 1504
. Each copy shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company and another
to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record
so signed and verified shall be conclusive evidence of the matters therein stated.
Section 1507
Evidence of Action
Taken by Holders
.
Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given or taken by a specified percentage in principal
amount of the Holders of any or all series may be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such specified percentage of Holders in person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee. Proof
of execution of any instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to
Article Six
) conclusive in favor of the Trustee and the Company, if made in the manner provided in
this Article.
Section 1508
Proof of Execution
of Instruments
.
Subject to
Article Six
, the
execution of any instrument by a Holder or his agent or proxy may be proved in accordance with such reasonable rules and regulations
as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee.
Article Sixteen
Conversion or Exchange of Securities
Section 1601
Applicability of
Article
.
The provisions of this Article shall be
applicable to the Securities of any series which are convertible or exchangeable for other securities or property (including securities
of other issuers) of the Company, except as otherwise specified as contemplated by
Section 301
for the Securities of
such series.
Section 1602
Election to Exchange;
Notice to Trustee and Holders
.
The election of the Company to exchange
any Securities shall be evidenced by a Board Resolution or in another manner specified as contemplated by
Section 301
for such Securities. On or prior to the seventh Business Day prior to Maturity of the Securities, the Company shall provide written
notice to the Holders of record of the Securities and to the Trustee and will publish a notice in an Authorized Newspaper stating
whether the Company has made such election.
Section 1603
No Fractional Shares
.
No fractional shares or fractional securities
shall be delivered upon conversions or exchanges of Securities of any series. If more than one Security shall be surrendered for
conversion or exchange at one time by the same Holder, the number of full shares or units which shall be delivered upon conversion
or exchange shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to
the extent permitted hereby) so surrendered. If, except for the provisions of this
Section 1603
, any Holder of a Security
or Securities would be entitled to a fractional share or unit of a security upon the conversion or exchange of such Security or
Securities, or specified portions thereof, the Company shall pay to such Holder an amount in cash equal to the current market value
of such fractional share or unit computed on the basis of the Closing Price of such security on the date preceding the date on
which the conversion or exchange shall be effected in accordance with
Section 1610
. The “
Closing Price
”
of any security on any date of determination means, (a) if such security is listed or admitted to unlisted trading privileges on
a national securities exchange, the last reported sales price on the composite tape on such exchange, or (b) if such security is
not at the time so listed or admitted to unlisted trading privileges on a national securities exchange, the average of the bid
and asked prices of such security in the over-the-counter market, as reported by the National Quotation Bureau, Incorporated or
similar organization if the National Quotation Bureau, Incorporated is no longer reporting such information, or if not so available,
the market price as determined by a nationally recognized independent investment banking firm retained for this purpose by the
Company.
Section 1604
Adjustment of Conversion
Rate or Exchange Rate
.
The exchange rate or conversion rate of
Securities of any series that are exchangeable for or convertible into other securities or property (including securities of other
issuers) shall be adjusted for any stock dividends, stock splits, reclassification, combinations or similar transactions or any
consolidation, merger or other reorganization event in accordance with the terms of the supplemental indenture or Board Resolution
setting forth the terms of the Securities of such series.
Whenever the exchange rate or conversion
rate is adjusted, the Company shall compute the adjusted exchange rate or conversion rate in accordance with terms of the applicable
Board Resolution or supplemental indenture and shall prepare an Officers’ Certificate setting forth the adjusted exchange
rate or conversion rate and showing in reasonable detail the facts upon which such adjustment is based, and such certificate shall
forthwith be filed at each office or agency maintained for the purpose of exchange or conversion of Securities pursuant to
Section 1002
and, if different, with the Trustee. The Company shall forthwith cause a notice setting forth the adjusted exchange rate or conversion
rate to be mailed, first class postage prepaid, to each Holder of Securities of such series at its address appearing on the Security
Register and to any exchange agent or conversion agent other than the Trustee.
Section 1605
Payment of Certain
Taxes Upon Exchange
.
The Company will pay any and all taxes that
may be payable in respect of the transfer and delivery of shares of other securities or property (including securities of other
issuers) of the Company on exchange or conversion of Securities pursuant hereto. The Company shall not, however, be required to
pay any tax which may be payable in respect of any transfer involved in the delivery of shares of securities in a name other than
that of the Holder of the Security or Securities to be exchanged or converted, and no such transfer or delivery shall be made unless
and until the person requesting such transfer has paid to the Company the amount of any such tax, or has established, to the satisfaction
of the Company, that such tax has been paid.
Section 1606
Shares Free and
Clear
.
The Company hereby warrants that upon exchange
or conversion of Securities of any series, the Holder of a Security shall receive all rights held by the Company in such security
for which such Security is at such time exchangeable or convertible under this
Article Sixteen
, free and clear of any
and all liens, claims, charges and encumbrances other than any liens, claims, charges and encumbrances which may have been placed
on any such security by the prior owner thereof, prior to the time such security was acquired by the Company. Except as provided
in
Section 1605
, the Company will pay all taxes and charges with respect to the delivery of such security delivered
in exchange or conversion for Securities hereunder.
Section 1607
Cancellation of
Security
.
Upon receipt by the Trustee of Securities
of any series delivered to it for exchange or conversion under this
Article Sixteen
, the Trustee shall cancel and dispose
of the same as provided in
Section 309
.
Section 1608
Duties of Trustee
Regarding Exchange and Conversion
.
Neither the Trustee nor any exchange agent
or conversion agent shall at any time be under any duty or responsibility to any Holder of Securities of any series that is exchangeable
or convertible into other securities or property (including securities of other issuers) of the Company to determine whether any
facts exist which may require any adjustment of the exchange rate or conversion rate, or with respect to the nature or extent of
any such adjustment when made, or with respect to the method employed, whether herein or in any supplemental indenture, any resolutions
of the Board of Directors or written instrument executed by one or more officers of the Company provided to be employed in making
the same. Neither the Trustee nor any exchange agent or conversion agent shall be accountable with respect to the validity or value
(or the kind or amount) of any securities or property (including securities of other issuers, of the Company, or of any Securities
and neither the Trustee nor any exchange agent or any conversion agent makes any representation with respect thereto. Subject to
the provisions of TIA Sections 315(a) through 313(d), neither the Trustee nor any exchange agent or conversion agent shall be responsible
for any failure of the Company to issue, transfer or deliver any stock certificates or other securities or property (including
securities of other issuers) upon the surrender of any Security for the purpose of exchange or conversion or to comply with any
of the covenants of the Company contained in this
Article Sixteen
or in the applicable supplemental indenture, resolutions
of the Board of Directors or written instrument executed by one or more duly authorized officers of the Company. The Trustee shall
not be responsible for the Company’s failure to comply with this
Article Sixteen
.
Section 1609
Repayment of Certain
Funds Upon Exchange or Conversion
.
Any funds which at any time shall have been
deposited by the Company or on its behalf with the Trustee or any other paying agent for the purpose of paying the principal of,
and premium, if any, and interest, if any, on any of the Securities (including funds deposited for the sinking fund referred to
in
Article Twelve
hereof) and which shall not be required for such purposes because of the exchange or conversion of
such Securities as provided in this
Article Sixteen
shall after such exchange or conversion be repaid to the Company
by the Trustee upon Company Request.
Section 1610
Exercise of Conversion
or Exchange Privilege
.
In order to exercise a conversion or exchange
privilege, the Holder of a Security of a series with such a privilege shall surrender such Security to the Company at the office
or agency maintained for that purpose pursuant to
Section 1002
, accompanied by written notice to the Company that the
Holder elects to convert or exchange such Security or a specified portion thereof. In the case of Registered Securities, such notice
shall also state, if different from the name or names (with address) in which the Securities are registered, the name or names
in which the Securities or property (including securities of other issuers) of the Company which shall be issuable on such conversion
or exchange shall be issued. Registered Securities surrendered for conversion or exchange shall (if so required by the Company
or the Trustee) be duly endorsed by or accompanied by instruments of transfer in forms satisfactory to the Company and the Trustee
duly executed by the registered Holder or its attorney duly authorized in writing; and Registered Securities so surrendered for
conversion or exchange during the period from the close of business on any Regular Record Date to the opening of business on the
next succeeding Interest Payment Date (excluding Securities or portions thereof called for redemption during such period) shall
also be accompanied by payment in funds acceptable to the Company of an amount equal to the interest payable on such Interest Payment
Date on the principal amount of such Security then being converted or exchanged, and such interest shall be payable to such registered
Holder notwithstanding the conversion or exchange of such Security, subject to the provisions of
Section 307
relating
to the payment of Defaulted Interest by the Company. As promptly as practicable after the receipt of such notice and of any payment
required pursuant to a Board Resolution and, subject to
Section 303
, set forth, or determined in the manner provided,
in an Officers’ Certificate, or established in one or more indentures supplemental hereto setting forth the terms of such
series of Security, and the surrender of such Security in accordance with such reasonable regulations as the Company may prescribe,
the Company shall issue and shall deliver, at the office or agency at which such Security is surrendered, to such Holder or on
its written order, securities or property (including securities of other issuers) of the Company issuable or deliverable upon the
conversion or exchange of such Security (or specified portion thereof), in accordance with the provisions of such Board Resolution,
Officers’ Certificate or supplemental indenture, and cash as provided therein in respect of any fractional share or unit
otherwise issuable upon such conversion or exchange. Such conversion or exchange shall be deemed to have been effected immediately
prior to the close of business on the date on which such notice and such payment, if required, shall have been received in proper
order for conversion or exchange by the Company and such Security shall have been surrendered as aforesaid (unless such Holder
shall have so surrendered such Security and shall have instructed the Company to effect the conversion or exchange on a particular
date following such surrender and such Holder shall be entitled to convert or exchange such Security on such date, in which case
such conversion or exchange shall be deemed to be effected immediately prior to the close of business on such date) and at such
time the rights of the Holder of such Security as such Security Holder shall cease and the person or persons in whose name or names
any securities or property (including securities of other issuers) of the Company shall be issuable or deliverable upon such conversion
or exchange shall be deemed to have become the Holder or Holders of record of the shares represented thereby. Except as set forth
above and subject to the final paragraph of
Section 307
, no payment or adjustment shall be made upon any conversion
or exchange on account of any interest accrued on the Securities surrendered for conversion or exchange or on account of any interest
or dividends on the Securities or property (including securities of other issuers) of the Company issued or delivered upon such
conversion or exchange.
In the case of any Security which is converted
or exchanged in part only, upon such conversion or exchange the Company shall execute and the Trustee shall authenticate and deliver
to or on the order of the Holder thereof, at the expense of the Company, a new Security or Securities of the same series, of authorized
denominations, in aggregate principal amount equal to the unconverted or unexchanged portion of such Security.
Section 1611
Effect of Consolidation
or Merger on Exchange or Conversion Privilege
.
In case of any consolidation of the Company
with, or merger of the Company into or with any other Person, or in case of any sale of all or substantially all of the assets
of the Company, the Company or the Person formed by such consolidation or the Person into which the Company shall have been merged
or the Person which shall have acquired such assets, as the case may be, shall execute and deliver to the Trustee a supplemental
indenture providing that the Holder of each Security then Outstanding of any series that is exchangeable for or convertible into
securities of the Company shall have the right, which right shall be the exclusive exchange or conversion right thereafter available
to said Holder (until the expiration of the exchange or conversion right of such Security), to exchange or convert such Security
into the kind and amount of shares of stock or other securities or property (including cash) receivable upon such consolidation,
merger or sale by a holder of the number of shares or units of securities of the Company for which such Security might have been
exchanged or converted immediately prior to such consolidation, merger or sale, subject to compliance with the other provisions
of this Indenture, such Security and such supplemental indenture. Such supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided for in such Security. The above provisions of this
Section shall similarly apply to successive consolidations, mergers or sales. It is expressly agreed and understood that anything
in this Indenture to the contrary notwithstanding, if, pursuant to such merger, consolidation or sale, holders of outstanding shares
of common stock of the Company or other securities, into which the Security is exchangeable or convertible do not receive shares
of common stock or corresponding other securities of the surviving corporation, but receive other securities, cash or other property
or any combination thereof, Holders of Securities shall not have the right to thereafter exchange their Securities for or convert
their Securities into common stock or other securities having substantially identical terms as the Company securities, for which
the Security was originally exchangeable or into which the Security was originally convertible, of the surviving corporation or
the corporation which shall have acquired such assets, but rather, shall have the right upon such exchange or conversion to receive
the other securities, cash or other property receivable by a holder of the number of shares of common stock or such or other securities
of the Company for or into which the Securities held by such holder might have been exchanged or converted immediately prior to
such consolidation, merger or sale, all as more fully provided in the first sentence of this
Section 1611
. Anything
in this
Section 1611
to the contrary notwithstanding, the provisions of this
Section 1611
shall not apply
to a merger or consolidation of another corporation with or into the Company pursuant to which both of the following conditions
are applicable: (a) the Company is the surviving corporation and (b) the outstanding shares of Company common stock or other securities
of the Company for which the Security was originally exchangeable or into which the Security was originally convertible are not
changed or converted into any other securities or property (including cash) or reclassified pursuant to the terms of such merger
or consolidation.
As evidence of the kind and amount of shares
of stock or other securities or property (including cash) into which Securities may properly be exchangeable or convertible after
any such consolidation, merger or sale, or as to the appropriate adjustments of the conversion prices or exchange rates applicable
with respect thereto, the Trustee shall be furnished with and may accept the certificate or opinion of an independent certified
public accountant with respect thereto; and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively
rely thereon, and shall not be responsible or accountable to any Holder of Securities for any provision in conformity therewith
or approved by such independent certified accountant which may be contained in said supplemental indenture.
Article Seventeen
Subordination
Section 1701
Agreement to Subordinate
.
The Company agrees, and each Holder by accepting
a Security agrees, that the indebtedness evidenced by the Securities is subordinated in right of payment, to the extent and in
the manner provided in this Article, to the prior payment in full of all Senior Debt and that the subordination is for the benefit
of the holders of Senior Debt.
Section 1702
Liquidation; Dissolution;
Bankruptcy
.
Upon any distribution to creditors of the
Company in a liquidation or dissolution of the Company or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or its property:
(a) holders
of Senior Debt shall be entitled to receive payment in full in cash of the principal of and interest (including interest accruing
after the commencement of any such proceeding) to the date of payment on the Senior Debt before Holders shall be entitled to receive
any payment of principal of or interest on Securities;
(b) until
the Senior Debt is paid in full in cash, any distribution to which Holders would be entitled but for this Article shall be made
to holders of Senior Debt as their interests may appear, except that Holders may receive securities that are subordinated to Senior
Debt to at least the same extent as the Securities; and
(c) the
Trustee is entitled to rely upon an order or decree of a court of competent jurisdiction or a certificate of a bankruptcy trustee
or other similar official for the purpose of ascertaining the persons entitled to participate in such distribution, the holders
of Senior Debt and other Company debt, the amount thereof or payable thereon and all other pertinent facts relating to the Trustee’s
obligations under this
Article Seventeen
.
Section 1703
Default on Senior
Debt
.
The Company may not pay principal of or
interest on the Securities and may not acquire any Securities for cash or property other than Capital Stock of the Company if:
(a) a
default on Senior Debt occurs and is continuing that permits holders of such Senior Debt to accelerate its maturity; and
(b) the
default is the subject of judicial proceedings or the Company receives a notice of the default from a person who may give it pursuant
to
Section 1711
. If the Company receives any such notice, a similar notice received within nine months thereafter relating
to the same default on the same issue of Senior Debt shall not be effective for purposes of this Section.
The Company may resume payments on the Securities
and may acquire them when the default is cured or waived, or 120 days pass after the notice is given if the default is not the
subject of judicial proceedings, if this Article otherwise permits the payment or acquisition at that time.
Section 1704
Acceleration of
Securities
.
If payment of the Securities is accelerated
because of an Event of Default, the Company shall promptly notify holders of Senior Debt of the acceleration. The Company may pay
the Securities when 120 days pass after the acceleration occurs if this Article permits the payment at that time.
Section 1705
When Distribution
Must Be Paid Over
.
If a distribution is made to Holders that
because of this Article should not have been made to them, the Holders who receive the distribution shall hold it in trust for
holders of Senior Debt and pay it over to them as their interests may appear.
Section 1706
Notice by Company
.
The Company shall promptly notify the Trustee
and any Paying Agent, in writing, of any facts known to the Company that would cause a payment of principal of or interest on Securities
to violate this Article.
Section 1707
Subrogation
.
After all Senior Debt is paid in full and
until the Securities are paid in full, Holders shall be subrogated to the rights of holders of Senior Debt to receive distributions
applicable to Senior Debt to the extent that distributions otherwise payable to the Holders have been applied to the payment of
Senior Debt. A distribution made under this Article to holders of Senior Debt which otherwise would have been made to Holders is
not, as between the Company and Holders, a payment by the Company on Senior Debt.
Section 1708
Relative Rights
.
This Article defines the relative rights
of Holders and holders of Senior Debt. Nothing in this Indenture shall:
(a) impair,
as between the Company and Holders, the obligation of the Company, which is absolute and unconditional, to pay principal of and
interest on the Securities in accordance with their terms;
(b) affect
the relative rights of Holders and creditors of the Company other than holders of Senior Debt; or
(c) prevent
the Trustee or any Holder from exercising its available remedies upon an Event of Default, subject to the rights of holders of
Senior Debt to receive distributions otherwise payable to Holders.
If the Company fails because of this Article
to pay principal of or interest on a Security on the due date, the failure is still a default.
Section 1709
Subordination May
Not Be Impaired by Company
.
No right of any holder of Senior Debt to
enforce the subordination of the indebtedness evidenced by the Securities shall be impaired by any act or failure to act by the
Company or by its failure to comply with this Indenture.
Section 1710
Distribution or
Notice to Representative
.
Whenever a distribution is to be made or
a notice given to holders of Senior Debt, the distribution may be made and the notice given to their Representative.
Section 1711
Notice to Trustee
.
The Company shall give prompt written notice
to the Trustee of any fact known to the Company which would prohibit the making of any payment to or by the Trustee in respect
of the Securities. Failure to give such notice shall not affect the subordination of the Securities to Senior Debt. Notwithstanding
the provisions of this or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Securities, unless and until
the Trustee shall have received written notice thereof at the address specified in
Section 105
from the Company, a
Representative or a holder of an issue of Senior Debt that has no Representative; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of
Section 602
, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if a Responsible Officer of the Trustee shall not have received, at least three Business
Days prior to the date upon which by the terms hereof any such money may become payable for any purpose (including, without limitation,
the payment of principal, interest, Additional Amounts, Make-Whole Amounts and the Redemption Price, if any, as the case may be,
in respect of any Security), the notice with respect to such money provided for in this
Section 1711
, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to
apply the same to the purpose for which such money was received and shall not be affected by any notice to the contrary which may
be received by it within three Business Days prior to such date.
Subject to the provisions of
Section 602
,
the Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a Representative or a holder of
an issue of such Debt that has no Representative to establish that such notice has been given by a holder of Senior Debt. In the
event that the Trustee determines in good faith that further evidence is required with respect to the right of any person as a
holder of Senior Debt to participate in any payment or distribution pursuant to this Article, the Trustee may request such person
to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Debt held by such person, the extent
to which such person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of
such person under this Article, and if such evidence is not furnished, the Trustee may defer any payment which it may be required
to make for the benefit of such person pursuant to the terms of this Indenture pending judicial determination as to the rights
of such person to receive such payment.
Section 1712
Reliance on Judicial
Order or Certificate of Liquidating Agent
.
Upon any payment or distribution of assets
of the Company referred to in this Article, the Trustee, subject to the provisions of
Section 602
, and the Holders
of the Securities shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction
in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding
is pending, or a certificate of the trustee in bankruptcy, liquidating trustee, Custodian, receiver, assignee for the benefit of
creditors, agent or other person making such payment or distribution, delivered to the Trustee or to the Holders of Securities,
for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the holders of Senior Debt
and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article.
Section 1713
Trustee Not Fiduciary
for Holders of Senior Debt
.
The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt and shall not be liable to any such holders if the Trustee shall in good faith mistakenly
pay over or distribute to Holders of Securities or to the Company or to any other person cash, property or securities to which
any holders of Senior Debt shall be entitled by virtue of this Article or otherwise. With respect to the holders of Senior Debt,
the Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this
Article and no implied covenants or obligations with respect to holders of Senior Debt shall be read into this Indenture against
the Trustee.
Section 1714
Rights of Trustee as
Holder of Senior Debt; Preservation of Trustee’s Rights
.
The Trustee or any Authenticating Agent
in its individual capacity shall be entitled to all the rights set forth in this Article with respect to any Senior Debt which
may at any time be held by it, to the same extent as any other holder of Senior Debt, and nothing in this Indenture shall deprive
the Trustee or any Authenticating Agent of any of its rights as such holder.
The Company’s obligation to pay, and
the Company’s payment of, the amounts required by
Section 606
are excluded from the operation of this
Article Seventeen
.
Article Eighteen
Guarantees
Section 1801
Guarantee
.
Any series of Securities may be guaranteed
by one or more of the Guarantors. The terms and the form of any such Guarantee will be established in the manner contemplated by
Section 301
for that particular series of Securities.
IN WITNESS WHEREOF
, the parties hereto
have caused this Indenture to be duly executed by their respective officers hereunto duly authorized, all as of the day and year
first above written.
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COMPANY
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Intec Pharma Ltd.
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By:
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Name:
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Title:
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[GUARANTORS:
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By:
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Name:
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Title:]
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TRUSTEE:
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By:
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Name:
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Title:
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SCHEDULE I
GUARANTORS
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON
ENTITLED TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that, as of the date
hereof, and except as set forth below, the above-captioned Securities held by you for our account (i) are owned by person(s) that
are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its source (“United States person(s)”),
(ii) are owned by United States person(s) that are (a) foreign branches of United States financial institutions (financial institutions,
as defined in United States Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as “financial institutions”)
purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches
of United States financial institutions and who hold the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise [__________________] or its agent that such financial institution will provide a certificate within
a reasonable time stating that it agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are owned by a financial institution for purposes
of resale during the restricted period (as defined in United States Treasury Regulations Section 1.1635(c)(2)(i)(D)(7)), and, such
financial institution described in clause (iii) above (whether or not also described in clause (i) or (ii)), certifies that it
has not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, “United States”
means the United States of America (including the States and the District of Columbia); and its “possessions” include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested
telex on or prior to the date on which you intend to submit your certification relating to the above-captioned Securities held
by you for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date,
and in the absence of any such notification it may be assumed that this certification applies as of such date. This certificate
excepts and does not relate to [U.S.$] of such interest in the above-captioned Securities in respect of which we are not able to
certify and as to which we understand an exchange for an interest in a permanent global Security or an exchange for and delivery
of definitive Securities (or, if relevant, collection of any interest) cannot be made until we do so certify.
We understand that this certificate may
be required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced
or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate
or a copy thereof to any interested party in such proceedings.
Dated:_________________, ____.
[To be dated no earlier than the 15th day
prior to the earlier of (i) the Exchange Date or (ii) the relevant Interest Payment Date occurring prior to the Exchange Date,
as applicable.]
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[Name of Person Making Certification]
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(Authorized Signatory)
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Name:
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Title:
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EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM BANKING S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that, based solely on
written certifications that we have received in writing, by tested telex or by electronic transmission from each of the persons
appearing in our records as persons entitled to a portion of the principal amount set forth below (our “Member Organizations”)
substantially in the form attached hereto, as of the date hereof, (U.S.$) principal amount of the above-captioned Securities (i)
is owned by persons(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or
any estate or trust the income of which is subject to United States Federal income taxation regardless of its source (“United
States person(s)”), (ii) is owned by United States person(s) that are (a) foreign branches of United States financial institutions
(financial institutions, as defined in United States Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as “financial
institutions”) purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities
through foreign branches of United States financial institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such financial institution has agreed, on its own behalf or
through its agent, that we may advise [_________________________] or its agent that such financial institution will provide a certificate
within a reasonable time stating that it agrees to comply with the requirements of Section 165(j)(3)(A), (B), or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by a financial institution for purposes of
resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and that
such financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified
that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person
within the United States or its possessions.
As used herein, “United States”
means the United States of America (including the States and the District of Columbia); and its “possessions” include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making
available herewith for exchange (or, if relevant, collection of any interest) any portion of the temporary global Security representing
the above-captioned Securities excepted in the above-referenced certificates of Member Organizations and (ii) as of the date hereof
we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of any interest)
are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is
required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced
or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate
or a copy thereof to any interested party in such proceedings.
Dated:__________________ , _____.
[To be dated no earlier than the earlier
of the Exchange Date or the relevant Interest Payment Date occurring prior to the Exchange Date, as applicable.]
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_________________________________,
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as __________________
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By:
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Name:
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Title:
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96
Exhibit 5.1
March 1, 2019
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Intec Pharma Ltd.
12 Hartom St, Har Hotzvim
Jerusalem 9777512
Israel
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Re:
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as Israeli
counsel to Intec Parma Ltd., a company organized under the laws of the State of Israel (the “
Company
”), in connection
with its filing of a registration statement on Form S-3 (the “
Registration Statement
”) under the Securities
Act of 1933, as amended (the “
Securities Act
”), with the U.S. Securities and Exchange Commission (the “
Commission
”),
which registers the offer, issuance and sale by the Company, from time to time, of up to $200 million, in the aggregate, of any
one or more of the following types of securities, individually or in units:
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(a)
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ordinary shares, no par value of the Company (“
Ordinary Shares
" or “
Shares
”);
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(b)
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warrants to purchase Ordinary Shares (“
Warrants
”);
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(c)
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subscription rights to purchase Shares (the “
Rights
”);
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(d)
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senior or subordinated debt securities of the Company (the “
Debt Securities
”) to be issued by the Company pursuant to an indenture (a “
Company Indenture
”) to be executed by the Company and the relevant trustee under the Company Indenture ; or
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(e)
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units comprised of one or more of the other securities that may be offered under the Registration Statement (the “
Units
”) (collectively, the Shares, Warrants, Rights, Debt Securities and Units are referred to as the “
Securities
”).
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We have also acted as
Israeli counsel to the Company in connection with the Sales Agreement, dated as of March 1, 2019 (the “
Sales
Agreement
”), entered into by and between the Company and Cowen and Company, LLC (the
“
Agent
”) pursuant to which the Company has agreed to offer and sell Ordinary Shares having an
aggregate offering price of up to $75 million (the “
ATM Shares
”). The ATM Shares will be issued
pursuant to the Registration Statement and the related prospectus contained therein covering the ATM Shares.
This opinion letter is
furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K under the Securities
Act, in connection with the filing of the Registration Statement.
In connection herewith,
we have examined the originals, or photocopies or copies, certified or otherwise identified to our satisfaction, of: (i) the form
of the Registration Statement, to which this opinion letter is attached as an exhibit; (ii) a copy of the articles of association
of the Company, as currently in effect (the “
Articles
”); (iii) minutes of the meeting of the board of
directors of the Company (the “
Board
”) at which the filing of the Registration Statement and the actions
to be taken in connection therewith were approved; (iv) minutes of the meeting of the Board at which the execution of the Sales
Agreement and the actions to be taken in connection therewith were approved; and (v) such other corporate records, agreements,
documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives
of the Company as we have deemed relevant and necessary as a basis for the opinions hereafter set forth. We have also made inquiries
of such officers and representatives as we have deemed relevant and necessary as a basis for the opinions hereafter set forth.
In such examination, we
have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents submitted to us as certified, confirmed as photostatic
copies and the authenticity of the originals of such latter documents. As to all questions of fact material to these opinions that
have not been independently established, we have relied upon certificates or comparable documents of officers and representatives
of the Company.
We have also assumed the
truth of all facts communicated to us by the Company and that all minutes of meetings of the Board that have been provided to us
are true and accurate and have been properly prepared in accordance with the Articles and all applicable laws. We have assumed,
in addition, that at the time of the execution and delivery of any definitive purchase, underwriting or similar agreement between
the Company and any third party pursuant to which any of the Securities may be issued (a “
Securities Agreement
”),
the Securities Agreement will be the valid and legally binding obligation of such third party, enforceable against such third party
in accordance with its terms. We have further assumed that at the time of the issuance and sale of any of the Securities, the terms
of the Securities, and their issuance and sale, will have been established so as not to violate any applicable law or result in
a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company.
Based upon and subject
to the foregoing, we are of the opinion that:
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1.
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With respect to the Shares, assuming (a) the taking of all necessary corporate action to authorize and approve the issuance of any Shares, the terms of the offering thereof and related matters (for purposes of this paragraph 1, the “
Authorizing Resolutions
”), (b) the effectiveness of the Registration Statement, and any amendments thereto (including any post-effective amendments), and that such effectiveness shall not have been terminated or rescinded, (c) the delivery and filing of an appropriate prospectus supplement with respect to the offering of the Shares in compliance with the Securities Act and the applicable rules and regulations thereunder, (d) approval by the Board of, and entry by the Company into, and performance by the Company under, any applicable Securities Agreement, in the form filed as an exhibit to the Registration Statement, any post-effective amendment thereto or to Current Reports on Form 8-K, pursuant to which the Shares may be issued and sold, and (e) receipt by the Company of the consideration for the Shares as provided for in the Authorizing Resolutions and in accordance with the provisions of any such Securities Agreement and the applicable convertible Securities, if any, pursuant to which the Shares may be issued, such Shares, including any Ordinary Shares issued upon exercise or conversion of any Securities, will be validly issued, fully paid and non-assessable.
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2.
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With respect to the Warrants, assuming the (a) taking of all necessary corporate action to authorize and approve the issuance and terms of any Warrants, the terms of the offering thereof and related matters (for purposes of this paragraph 2, the “
Authorizing Resolutions
”), (b) the effectiveness of the Registration Statement, and any amendments thereto (including any post-effective amendments), and that such effectiveness shall not have been terminated or rescinded, (c) the due authorization, execution and delivery of (i) the warrant agreement to be dated on or about the date of the first issuance of the applicable Warrants thereunder, by and between the Company and a warrant agent to be selected by the Company (each, a “
Warrant Agreement
”) and (ii) any certificates relating to the Warrants, (d) the delivery and filing of an appropriate prospectus supplement with respect to the offering of the Warrants in compliance with the Securities Act and the applicable rules and regulations thereunder, (e) entry by the Company into, and performance by the Company under, any applicable Warrant Agreement, in the form filed as an exhibit to the Registration Statement, any post-effective amendment thereto or to a Current Reports on Form 8-K, pursuant to which the Warrants may be issued and sold, (f) due establishment by all necessary corporate action and in conformity with the Articles (as then in effect), the Warrant Agreement and any warrant certificates, of the terms of the Warrants and of their issuance and sale, (g) due execution and counter-signature, in accordance with the provisions of the Warrant Agreement, and due issuance, sale and delivery, in accordance with the provisions of any such Warrant Agreement, the Registration Statement and the prospectus included therein, of the Warrants and (h) receipt by the Company of the consideration for the Warrants as provided for in the Authorizing Resolutions and in accordance with the provisions of any such Securities Agreement, such Warrants, including any Ordinary Shares issued upon exercise or conversion of any Warrants, will constitute valid and legally binding obligations of the Company.
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3.
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With respect to the Rights, assuming the (a) taking of all necessary corporate action to authorize and approve the issuance and the terms of the Rights, the terms of the offering thereof and related matters (for purposes of this paragraph 3, the “
Authorizing Resolutions
”), (b) the effectiveness (without termination or rescindment) of the Registration Statement, as finally amended (including any post-effective amendments), under the Securities Act, (c) the due authorization, execution and delivery of (i) the rights agreement to be dated on or about the date of the first issuance of the applicable Rights thereunder, by and between the Company and a rights agent to be selected by the Company (a “
Rights Agreement
”) and (ii) any certificates relating to the Rights, (d) the delivery and filing of an appropriate prospectus supplement with respect to the offering of the Rights in compliance with the Securities Act and the applicable rules and regulations thereunder, (e) approval by the Board of, and entry by the Company into, and performance by the Company under, any applicable Rights Agreement, in the form filed as an exhibit to the Registration Statement, any post-effective amendment thereto or to a Current Reports on Form 8-K, pursuant to which the Rights may be issued and sold, (f) due establishment by all necessary corporate action and in conformity with the Articles (as then in effect) and the Rights Agreement and any rights certificates, of the terms of the Rights and of their issuance and sale, (g) due execution and counter-signature, in accordance with the provisions of the Rights Agreement, and due issuance, sale and delivery, in accordance with the provisions of any such Rights Agreement, the Registration Statement and the prospectus included therein, of the Rights and (h) receipt by the Company of the consideration for the Rights as provided for in the Authorizing Resolutions and in accordance with the provisions of any such Rights Agreement, such Rights will constitute valid and legally binding obligations of the Company.
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4.
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With respect to the Units, assuming the (a) taking of all necessary corporate action to authorize and approve the issuance and the terms of the Units and any Securities that are components to the units, the terms of the offering thereof and related matters (for purposes of this paragraph 4, the “
Authorizing Resolutions
”), (b) the effectiveness (without termination or rescindment) of the Registration Statement, as finally amended (including any post-effective amendments), under the Securities Act, (c) the due authorization, execution and delivery of (i) the Unit Agreement to be dated on or about the date of the first issuance of the applicable Units thereunder, by and between the Company and a rights agent to be selected by the Company (a “
Units Agreement
”) and (ii) any certificates relating to the Units, (d) the delivery and filing of an appropriate prospectus supplement with respect to the offering of the Units in compliance with the Securities Act and the applicable rules and regulations thereunder, (e) approval by the Board of, and entry by the Company into, and performance by the Company under, any applicable Units Agreement, in the form filed as an exhibit to the Registration Statement, any post-effective amendment thereto or to a Current Reports on Form 8-K, pursuant to which the Units may be issued and sold, (f) due establishment by all necessary corporate action and in conformity with the Articles (as then in effect) and the Units Agreement and any rights certificates, of the terms of the Units and of their issuance and sale, (g) due execution and counter-signature, in accordance with the provisions of the Unit Agreement, and due issuance, sale and delivery, in accordance with the provisions of any such Units Agreement, the Registration Statement and the prospectus included therein, of the Units and (h) receipt by the Company of the consideration for the Units as provided for in the Authorizing Resolutions and in accordance with the provisions of any such Units Agreement, such Units will constitute valid and legally binding obligations of the Company.
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5.
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With respect to the ATM Shares, assuming that prior to the issuance of any of ATM Shares under the Sales Agreement, the price, number of ATM Shares and certain other terms of issuance with respect to any specific placement notice delivered under the Sales Agreement will be authorized and approved by the Board or a pricing committee of the Board in accordance with Israeli law (for purposes of this paragraph 5, the “
Authorizing Resolutions
”), all corporate proceedings necessary for the authorization, issuance and delivery of the ATM Shares shall have been taken and, upon issuance pursuant to the terms of the Sales Agreement and in accordance with resolutions of the Board related to the offering of the ATM Shares, the ATM Shares will be validly issued, fully paid and non-assessable.
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You have informed us that
you intend to issue the Securities from time to time on a delayed or continuous basis, and this opinion is limited to the laws,
including the rules and regulations, as in effect on the date hereof. We understand that prior to issuing any Securities you will
afford us an opportunity to review the corporate approval documents and operative documents pursuant to which such Securities are
to be issued (including the Authorizing Resolutions, a Securities Agreement (if applicable) and an appropriate prospectus supplement),
and we will file such supplement or amendment to this opinion (if any) as we may reasonably consider necessary or appropriate by
reason of the terms of such Securities.
With respect to our opinion
as to the Shares, including any Ordinary Shares issued upon exercise or conversion of any Securities and the ATM Shares, we have
assumed that, at the time of issuance and sale and to the extent any such issuance would exceed the maximum share capital of the
Company currently authorized, the number of Ordinary Shares that the Company is authorized to issue shall have been increased in
accordance with the Company’s Articles and as described in the Registration Statement such that a sufficient number of Ordinary
Shares are authorized and available for issuance under the Articles.
Members of our firm are
admitted to the Bar in the State of Israel, and we do not express any opinion as to the laws of any other jurisdiction. This opinion
is limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated.
We consent to the filing
of this opinion as an exhibit to the Registration Statement and to the reference to our firm appearing under the caption “Legal
Matters” and “Enforceability of Civil Liabilities” in the prospectus forming part of the Registration Statement.
In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section
7 of the Securities Act, the rules and regulations of the Commission promulgated thereunder or Item 509 of the Commission’s
Regulation S-K under the Securities Act.
This opinion letter is
rendered as of the date hereof and we disclaim any obligation to advise you of facts, circumstances, events or developments that
may be brought to our attention after the effective date of the Registration Statement that may alter, affect or modify the opinions
expressed herein.
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Very truly
yours,
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/s/ Meitar Liquornik
Geva Leshem Tal
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Exhibit 5.2
March 1, 2019
Intec Pharma Ltd.
12 Hartom Street, Har Hotzvim
Jerusalem 9777512
Israel
Re:
Intec Pharma Ltd. Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as U.S. counsel
to Intec Pharma Ltd., an Israeli company organized under the laws of the State of Israel (the “Company”), in connection
with the filing of a registration statement on Form S-3 (the “Registration Statement”) to be filed under the Securities
Act of 1933, as amended (the “Securities Act”), with the U.S. Securities and Exchange Commission (the “Commission”).
The Registration Statement is being filed for the registration of the following securities which may subsequently be allotted and
issued by the Company up to an aggregate initial offer price of $200,000,000 of (i) ordinary shares, no par value per share (the
“Ordinary Shares”), (ii) debt securities of the Company (“Debt Securities”), (iii) warrants to purchase
Ordinary Shares (the “Warrants”), (iv) rights to purchase Ordinary Shares (“Subscription Rights”) and (v)
units consisting of Ordinary Shares, one or more Debt Securities, Warrants or Subscription Rights, in any combination (“Units”)
(together, the “Securities”).
For purposes of this opinion
letter, we have assumed that the Debt Securities will be either senior debt securities or subordinate debt securities and will
be issued pursuant to a senior debt indenture or a subordinate debt indenture, respectively (collectively, the “Indentures”),
forms of which will be filed as exhibits to the Registration Statement. We have reviewed such documents and made such examination
of matters of fact and questions of law as we have considered appropriate for purposes of this letter.
We are opining herein only
as to the internal laws of the State of New York, and we express no opinion with respect to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction, or as to any matters of municipal law or the laws of any local agency within any
jurisdiction. With respect to the laws of the State of Israel, we understand that you are relying upon the opinion, dated the date
hereof, of Meitar Liquornik Geva Leshem Tal, counsel to the Company in Israel, and our opinion is subject to the same assumptions,
qualifications and limitations with respect to such law as contained in such opinion of Meitar Liquornik Geva Leshem Tal. We express
no opinion herein regarding the validity or issuance of the Ordinary Shares, Warrants, Subscription Rights or Units, which matters
are being addressed in such opinion of Meitar Liquornik Geva Leshem Tal.
We have examined signed
copies of the Registration Statement and have also examined and relied upon minutes of meetings of the Board of Directors of the
Company as provided to us by the Company, the articles of association of the Company, as restated and/or amended to date (the
“Articles”), and such other documents as we have deemed necessary or appropriate for purposes of rendering the opinion
hereinafter set forth. In addition, we have examined and relied, to the extent we deemed proper, on certificates of officers of
the Company as to factual matters, and on originals or copies certified or otherwise identified to our satisfaction, of all such
corporate records of the Company and such other instruments and certificates of public officials and other persons as we have
deemed appropriate. In our examination, we have assumed the authenticity of all documents submitted to us as originals, the conformity
to the original documents of all documents submitted to us as copies, the genuineness of all signatures on documents reviewed
by us and the legal capacity of natural persons. Other than our examination of the documents indicated above, we have made no
other examination in connection with this opinion.
We have assumed (a) that each of the Securities and each applicable agreement
pursuant to which such Securities will be issued will be duly authorized, executed and delivered by the parties thereto in accordance
with applicable law, consistent with the procedures and terms described in the Registration Statement and the applicable Prospectus
Supplement and in accordance with the Company’s Articles, (b) that each of the Securities will be validly issued, fully
paid and nonassessable (to the extent applicable), (c) that the Debt Securities, the Indentures, the Warrants, the Subscription
Rights and the Units will constitute legally valid and binding obligations of the parties thereto (other than the Company), enforceable
against each of them in accordance with their respective terms, and (d) that the status of each of the Debt Securities, the Indentures,
the Warrants, the Subscription Rights and the Units as legally valid and binding obligations of the parties will not be affected
by any (i) breaches of, or defaults under, agreements or instruments, (ii) violations of statutes, rules, regulations or court
or governmental orders, or (iii) failures to obtain required consents, approvals or authorizations from, or to make required registrations,
declarations or filings with, governmental authorities.
Subject to the foregoing
and the other matters set forth herein, it is our opinion that as of the date hereof, when (i) the Registration Statement, as finally
amended, is declared or has otherwise become effective under the Securities Act, (ii) the Securities have been duly authorized,
executed and delivered by all necessary corporate action of the Company, (iii) the specific terms of any particular series of Debt
Securities have been duly established in accordance with the Indentures and applicable law and authorized by all necessary corporate
action of the Company (including, without limitation, by the adoption by the board of directors of the Company of resolutions duly
authorizing the issuance and delivery of such Debt Securities), and (iv) any such Debt Securities have been duly executed and issued
by the Company, duly authenticated by the applicable trustee in accordance with the Indentures and duly delivered by or on behalf
of the Company against payment therefor in the manner contemplated by the Registration Statement or the related prospectus and
by such corporate action, (1) the Debt Securities will be valid and binding obligations of the Company, enforceable against the
Company in accordance with the terms of the Indentures, (2) the Warrants will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms to the extent governed by New York law, (3) the Subscription Rights
will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms to the extent
governed by New York law, and (4) the Units will be valid and binding obligations of the Company, enforceable against the Company
in accordance with their terms to the extent governed by New York law.
To the extent that the
obligations of the Company under the applicable indenture governing the Debt Securities may be dependent upon such matters, we
have assumed for purposes of this opinion (i) that the Trustee is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization and is duly qualified to engage in the activities contemplated by the indenture governing
such Debt Securities and (ii) that the indenture has been duly authorized, executed and delivered by and constitutes the legal,
valid and binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms, except that the enforceability
thereof may be limited by or subject to bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium or other similar
laws now or hereafter existing that affect the rights and remedies of creditors generally and equitable principles of general
applicability.
Our opinion set forth above
is subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding
in equity or at law), (iii) an implied covenant of good faith and fair dealing and (iv) the effects of the possible application
of foreign laws or foreign governmental or judicial action affecting creditors’ rights.
The opinion set forth herein
is rendered as of the date hereof, and we assume no obligation to update such opinion to reflect any facts or circumstances which
may hereafter come to our attention or any changes in the law which may hereafter occur (which may have retroactive effect). This
opinion is rendered to you in connection with the filing of the Registration Statement referenced above. This opinion may not be
relied upon for any other purpose, or furnished to, quoted or relied upon by any other person, firm or corporation for any purpose,
without our prior written consent.
We hereby consent to the
reference to our firm under the caption “Legal Opinions” in the Registration Statement and to the use of this opinion
as an exhibit to the Registration Statement. In giving this consent, we do not hereby admit that we come within the category of
persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
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Very truly yours,
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/s/ McDermott Will & Emery LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
We hereby consent to the incorporation by reference
in this Registration Statement on Form S-3 of Intec Pharma Ltd. of our report dated February 26, 2019 relating to the financial
statements, which appears in Intec Pharma Ltd.'s Annual Report on Form 10-K for the year ended December 31, 2018. We also consent
to the reference to us under the heading “Experts” in such Registration Statement.
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Tel-Aviv, Israel
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/s/ Kesselman & Kesselman
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March 1, 2019
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Certified Public Accountants (Isr.)
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A member firm of PricewaterhouseCoopers International
Limited
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