As filed with the Securities
and Exchange Commission on August 28, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BRAINSTORM CELL
THERAPEUTICS INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
20-7273918
(I.R.S. Employer Identification
Number)
1325 Avenue of Americas, 28th
Floor
New York, NY 10019
(201) 488-0460
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Chaim Lebovits
Chief Executive Officer
c/o Brainstorm Cell Therapeutics
Inc.
1325 Avenue of Americas, 28th
Floor
New York, NY 10019
(201) 488-0460
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Mitchell S. Bloom, Esq.
Mayan Katz, Esq.
Goodwin Procter LLP
100 Northern Avenue
Boston, MA 02210
(617) 570-1000
Approximate Date of Commencement of Proposed Sale to the Public:
From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under
the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule
413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth
company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer |
¨ |
Accelerated filer |
¨ |
| Non-accelerated filer |
x |
Smaller reporting company |
x |
| |
|
Emerging growth company |
¨ |
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 7(a)(2)(B) of the Securities Act. ¨
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until this registration statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to said Section 8(a), may determine.
Explanatory Note
This registration statement contains two prospectuses:
| · | a base prospectus, which covers the offering, issuance and sale by us of up to $172,561,230 in aggregate principal amount of our common
stock, debt securities, warrants and/or units, in any combination, together or separately, in one or more offerings in amounts, at prices
and on the terms that we will determine at the time of the offering and which will be set forth in a prospectus supplement to this prospectus
and any related free writing prospectus; and |
| · | a distribution agreement prospectus covering the offering, issuance and sale by us of up to $5,776,035 of our common stock that
may be issued and sold from time to time under the Distribution Agreement, as amended, between us and Raymond James & Associates, Inc.
(the “Distribution Agent”). |
The
base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus
will be specified in a prospectus supplement to the base prospectus. The specific terms of the securities to be issued and sold under
the Distribution Agreement, as amended, are specified in the distribution agreement prospectus that immediately follows the base
prospectus. The $5,776,035 of common stock that may be offered, issued and sold under the distribution agreement prospectus is
included in the $172,561,230 of securities that may be offered, issued and sold by us under the base prospectus. Upon termination of the
Distribution Agreement, as amended, any portion of the $5,776,035 included in the distribution agreement prospectus that is not sold
pursuant to the Distribution Agreement, as amended, will be available for sale in other offerings pursuant to the base prospectus and
a corresponding prospectus supplement, and if no shares are sold under the Distribution Agreement, as amended, the full $5,776,035 of
securities may be sold in other offerings by us pursuant to the base prospectus and a corresponding prospectus supplement.
The information in this prospectus is not complete
and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission
is effective. This prospectus is not an offer to sell these securities and we are not soliciting offers to buy these securities in any
jurisdiction where the offer or sale is not permitted.
Subject to completion, dated August
28, 2024
PROSPECTUS
$172,561,230
BRAINSTORM CELL THERAPEUTICS INC.
Common Stock
Debt Securities
Warrants
Units
We may from time to time issue, in one or more series or classes,
up to $172,561,230 in aggregate principal amount of our common stock, debt securities, warrants and/or units, in any combination, together
or separately, in one or more offerings in amounts, at prices and on the terms that we will determine at the time of the offering and
which will be set forth in a prospectus supplement to this prospectus and any related free writing prospectus.
We may offer these securities separately or together in units. Each
time we sell securities described herein, we will provide prospective investors with a supplement to this prospectus that will specify
the terms of the securities being offered. We may sell these securities to or through underwriters or dealers and also to other purchasers
or through agents. We will set forth the names of any underwriters or agents, and any fees, conversions, or discount arrangements, in
the applicable prospectus supplement. We may not sell any securities under this prospectus without delivery of the applicable prospectus
supplement. You should read this document and any prospectus supplement or amendment carefully before you invest in our securities.
Our common stock is listed on The Nasdaq Capital Market under the
symbol “BCLI.” On August 27, 2024, the closing price for our common stock, as reported on The Nasdaq Capital Market was
$0.3139 per share. Our principal executive offices are located at 1325 Avenue of Americas, 28th Floor, New York, NY 10019.
As of the date of this prospectus, the aggregate market value of our
outstanding common stock held by non-affiliates pursuant to General Instruction I.B.6 of Form S-3 is $31,613,306, which was
calculated based on 75,269,777 shares of our outstanding common stock held by non-affiliates as of July 31, 2024 and a price
of $0.42 per share, the closing price of our common stock on July 15, 2024, which is within 60 days of the date of this prospectus. As
of the date of this prospectus, we have sold approximately $4,761,733 of our securities pursuant to General Instruction I.B.6 of Form S-3 during
the period of 12 calendar months immediately prior to, and including, the date of this prospectus. Pursuant to General Instruction I.B.6
of Form S-3, in no event will we sell securities in public primary offerings on Form S-3 with a value exceeding more than one-third
of our public float (as defined by General Instruction I.B.6) in any 12 calendar month period so long as our public float remains below
$75.0 million.
Investing
in our securities involves significant risks. See “Risk Factors” on page 4 of this prospectus (and
any accompanying prospectus supplement) as well as those included in any applicable prospectus supplement and in the documents
incorporated by reference in this prospectus for a discussion of the factors you should carefully consider before deciding to
purchase these securities.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation
to the contrary is a criminal offense.
The date of this prospectus
is , 2024.
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, using a “shelf” registration process. Under this shelf
registration process, we may from time to time sell any combination of the securities described in this prospectus in one or more offerings
for an aggregate of up to $172,561,230.
This prospectus provides you with a general description
of the securities we may offer. Each time we offer securities under this prospectus, we will provide one or more prospectus supplements
that will contain specific information about the terms of the offering. We may also authorize one or more free writing prospectuses to
be provided to you that may contain material information relating to these offerings. Each prospectus supplement and any related free
writing prospectus may also add, update or change information contained in this prospectus or the documents incorporated by reference
into this prospectus. You should read both this prospectus and the accompanying prospectus supplement and any related free writing prospectus
together with the additional information described under the heading “Where You Can Find More Information” and “Incorporation
of Certain Information by Reference” before you invest in our securities.
You should rely only on the information contained
in or incorporated by reference in this prospectus, any prospectus supplement or in any related free writing prospectus filed by us with
the SEC. We have not authorized anyone to provide you with different or additional information. This prospectus and any accompanying
prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities
described in any accompanying prospectus supplement or an offer to sell or the solicitation of an offer to buy such securities in any
circumstances in which such offer or solicitation is unlawful. You should assume that the information appearing in this prospectus, any
prospectus supplement, the documents incorporated by reference and any related free writing prospectus is accurate only as of their respective
dates. Our business, financial condition, results of operations and prospects may have changed materially since those dates. This prospectus,
any applicable prospectus supplement and the information incorporated herein or therein by reference contains market data, industry statistics
and other data that have been obtained or compiled from information made available by independent third parties. We have not independently
verified the accuracy and completeness of such data.
THIS PROSPECTUS MAY NOT BE USED TO OFFER AND
SELL SECURITIES UNLESS IT IS ACCOMPANIED BY AN ADDITIONAL PROSPECTUS OR A PROSPECTUS SUPPLEMENT.
Unless the context suggests otherwise, all references
in this prospectus to “us,” “our,” “Brainstorm,” “we,” the “Company” and
similar designations refer to Brainstorm Cell Therapeutics Inc. and, where appropriate, our subsidiaries. We use various trademarks and
trade names in our business, including without limitation our corporate name and logo. All other trademarks or trade names referred to
in this prospectus are the property of their respective owners. Solely for convenience, the trademarks and trade names in this prospectus
may be referred to without the ® and ™ symbols, but such references should not be construed as any indicator that their respective
owners will not assert, to the fullest extent under applicable law, their rights thereto.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated
by reference in this prospectus include, and any prospectus supplement or free writing prospectus may contain, “forward-looking
statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E
of the Exchange Act. Any forward-looking statements presented in this prospectus, or which management may make orally or in writing from
time to time, are based on management’s beliefs and assumptions made by, and information currently available to, management. All
statements, other than statements of historical facts, contained or incorporated by reference in this prospectus are forward-looking
statements. In some cases you can identify such “forward-looking statements” by the use of words like “may,”
“will,” “should,” “could,” “expects,” “hopes,” “anticipates,”
“believes,” “intends,” “plans,” “projects,” “targets,” “goals,”
“estimates,” “predicts,” “likely,” “potential,” or “continue” or the negative
of any of these terms or similar words. These statements, descriptions, forecasts and projections constitute “forward-looking statements,”
and as such involve known and unknown risks, uncertainties, and other factors that may cause our actual results, levels of activity,
performance and achievements to be materially different from any results, levels of activity, performance and achievements expressed
or implied by any such “forward-looking statements.” These risks and uncertainties include, but are not limited to the potential
consequences of The Nasdaq Stock Market’s (the “Nasdaq”) notice of delisting on our investors, the Nasdaq notice of
noncompliance with the minimum market value of listed securities requirement, our reputation and business generally, whether we will
be able to meet Nasdaq’s bid price listing requirement in time for Nasdaq’s October 21, 2024 deadline, whether we will be
able to meet Nasdaq’s minimum market value of $35 million in time for Nasdaq’s January 14, 2025 deadline, the outcomes of
the derivative lawsuits filed by four of our shareholders, the potential for more derivative lawsuits to be brought, our need to raise
additional capital, our ability to continue as a going concern, regulatory approval of our NurOwn® treatment candidate, the success
of our product development programs and research, regulatory and personnel issues, development of a global market for our services, the
ability to secure and maintain research institutions to conduct our clinical trials, the ability to generate significant revenue, the
ability of our NurOwn® treatment candidate to achieve broader acceptance as a treatment option for ALS, progressive multiple sclerosis
(“PMS”), Alzheimer’s disease (“AD”) or other neurodegenerative diseases, our ability to manufacture and
commercialize our NurOwn® treatment candidate, obtaining patents that provide meaningful protection, competition and market developments,
our ability to protect our intellectual property from infringement by third parties, heath reform legislation, demand for our services,
currency exchange rates and product liability claims and litigation, adverse developments affecting the financial services industry,
political instability, unrest and wars, such as the conflicts involving Ukraine and Russia and Israel and its surrounding regions, including
our clinical development activities, and other factors described under “Risk Factors” in this prospectus and elsewhere in
our most recent Annual Report on Form 10-K, our subsequent Quarterly Reports on Form 10-Q and our
Current Reports on Form 8-K, and the section of any accompanying prospectus supplement entitled “Risk Factors.”
Any forward-looking statements contained or incorporated
by reference in this prospectus reflect our current views with respect to future events or to our future financial performance and involve
known and unknown risks, uncertainties and other important factors that may cause our actual results, performance or achievements to
be materially different from any future results, performance or achievements expressed or implied by these forward-looking statements.
See “Risk Factors” for more information. Given these uncertainties, you should not place undue reliance on these forward-looking
statements. Our forward-looking statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint
ventures or investments we may make or enter into. Except as required by law, we assume no obligation to update or revise these forward-looking
statements for any reason, whether as a result of new information, future events or otherwise.
ABOUT
THE COMPANY
Our Business
Brainstorm Cell Therapeutics Inc. is a leading
biotechnology company committed to the development and commercialization of best-in-class autologous cellular therapies for the treatment
of neurodegenerative diseases, including ALS, also known as Lou Gehrig’s disease); PMS; AD; and other neurodegenerative diseases.
NurOwn®, our proprietary cell therapy platform, leverages cell culture methods to induce autologous bone marrow-derived mesenchymal
stem cells (“MSCs”) to secrete high levels of neurotrophic factors (“NTFs”), modulate neuroinflammatory and neurodegenerative
disease processes, promote neuronal survival and improve neurological function.
NurOwn® has completed its Phase 3 ALS and
Phase 2 PMS clinical trials. On November 17, 2020, we announced top-line data from our Phase 3 ALS trial. On March 24, 2021, we announced
positive top-line data from our Phase 2 trial evaluating three repeated intrathecal administrations of NurOwn®, each given 2 months
apart, as a treatment for PMS. On June 24, 2020, we announced a new clinical program focused on the development of NurOwn® as a treatment
for AD. On August 15, 2022, we announced our decision to submit a Biologics License Application (“BLA”) to the U.S. Food
and Drug Administration (“FDA”) for NurOwn® for the treatment of ALS. On September 9, 2022, we filed a BLA to the FDA
for NurOwn® for the treatment of ALS. On November 10, 2022, we announced that we had received a refusal to file (“RTF”)
letter from the FDA regarding our BLA. On September 22, 2023, we submitted an amendment to our BLA to revise the indication to NurOwn®
for the treatment of mild to moderate ALS. On September 27, 2023, we announced that the Advisory Committee voted, with 17 voting no,
one voting yes, and one abstention, that NurOwn® did not demonstrate substantial evidence of effectiveness for treatment of mild
to moderate ALS. On October 18, 2023, we announced that FDA invited the Company to request an expedited face-to-face meeting to discuss
the path forward for NurOwn® as a treatment for ALS. Brainstorm remains committed to the ALS Community and is actively exploring
the next steps in support of NurOwn®, including publication of emerging clinical data and development of a protocol for an additional
clinical study. On October 18, 2023 Brainstorm announced that the BLA for NurOwn® would be withdrawn. The BLA was withdrawn on November
3, 2023. The decision to withdraw the BLA was coordinated with FDA and is viewed by FDA as a withdrawal without prejudice. On November
20, 2023, we announced that the FDA granted the company a meeting to discuss the regulatory path forward for NurOwn® in ALS. The
meeting took place on December 6, 2023. On December 7, 2023, we announced the completion of a productive meeting with the FDA to discuss
NurOwn®. The primary objective of the meeting was to discuss plans for a Special Protocol Assessment (“SPA”) with FDA
on the overall protocol design for a planned Phase 3b registrational trial for NurOwn®. The ultimate goal of the SPA is to secure
the FDA’s agreement that critical elements of the overall protocol design (e.g., entry criteria, endpoints, planned analyses) are
adequate and acceptable for a study intended to support a future marketing application. On February 23, 2024, we announced that we submitted
the SPA request to the FDA for the planned Phase 3b clinical trial of NurOwn® for the treatment of ALS. On April 9, 2024, the Company
announced that it received written agreement from the FDA, under a SPA, on the design for a Phase 3b trial of NurOwn® in
ALS. The SPA agreement with the FDA validates the clinical trial protocol and statistical analysis of the planned Phase 3b trial
of NurOwn, demonstrating the Company’s adequacy in addressing objectives that support a future BLA in ALS. On June 26, 2024, the
Company announced that it has reached alignment with FDA on the Chemistry, Manufacturing, and Controls (CMC) aspects of Brainstorm's
Phase 3b clinical trial for NurOwn®, its investigational therapy for ALS. This Type C meeting builds upon the positive
momentum established in April 2024, when the FDA granted BrainStorm a SPA agreement for its NurOwn Phase 3b trial.
Our wholly-owned Israeli subsidiary, Brainstorm
Cell Therapeutics Ltd. (“Israeli Subsidiary”), holds exclusive rights to commercialize NurOwn® technology through a licensing
agreement with Ramot (“Ramot”), the technology transfer company of Tel Aviv University, Israel.
NurOwn® has a strong and comprehensive intellectual
property portfolio and was granted Fast Track designation by the FDA and Orphan Drug status by the FDA and the European Medicines Agency
(“EMA”) for ALS.
Implications of Being a Smaller Reporting Company
We are a “smaller reporting company”
as defined in the Securities Exchange Act of 1934, as amended. We may take advantage of certain of the scaled disclosures available to
smaller reporting companies and will be able to take advantage of these scaled disclosures for so long as (i) the market value of our
shares held by non-affiliates is less than $250 million measured on the last business day of our second fiscal quarter, or (ii) our annual
revenue was less than $100 million during the most recently completed fiscal year and the market value of our shares held by non-affiliates
is less than $700 million measured on the last business day of our second fiscal quarter.
Corporate Information
We are incorporated under the laws of the State
of Delaware. Our principal executive offices are located at 1325 Avenue of Americas, 28th Floor, New York, NY 10019, and our telephone
number is (201) 488-0460. We also maintain an office in Petach Tikva, Israel. We maintain a website at http://www.brainstorm-cell.com.
No portion of our website is incorporated by reference into this prospectus and you should not consider any information on, or that can
be accessed through, our website as part of this prospectus. Our common stock trades on The Nasdaq Capital Market under the symbol “BCLI”.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. You should carefully consider the risks set forth in our filings with the SEC that
are incorporated by reference herein and any prospectus supplement, as well as other information we include or incorporate by reference
into this prospectus and any applicable prospectus supplement, before making an investment decision. Our business, financial condition
or results of operations could be materially adversely affected by the materialization of any of these risks or by additional risks and
uncertainties not presently known to us or that we currently deem immaterial that may adversely affect us in the future. The trading
price of our securities could decline due to the materialization of any of these risks, and you may lose all or part of your investment.
This prospectus and the documents incorporated herein by reference also contain forward-looking statements that involve risks and uncertainties.
Actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including
the risks described in the documents incorporated herein by reference, including our most recent Annual Report on Form 10-K, our Quarterly
Reports on Form 10-Q and our Current Reports on Form 8-K and the other documents we file with
the SEC that are deemed incorporated by reference into this prospectus.
USE
OF PROCEEDS
We intend to use the net proceeds from the sale
of any securities offered under this prospectus for general corporate purposes unless the applicable prospectus supplement provides otherwise.
General corporate purposes may include research and development costs, sales and marketing costs, clinical studies, manufacturing development,
the acquisition or licensing of other businesses or technologies, repayment and refinancing of debt, working capital and capital expenditures.
We may temporarily invest the net proceeds in a variety of capital preservation instruments, including short-term, investment grade,
interest bearing instruments and U.S. government securities, until they are used for their stated purpose. We have not determined the
amount of net proceeds to be used specifically for such purposes. As a result, management will retain broad discretion over the allocation
of net proceeds.
DILUTION
If there is a material dilution of the purchasers’
equity interest from the sale of common equity securities offered under this prospectus, we will set forth in any prospectus supplement
the following information regarding any such material dilution of the equity interests of purchasers purchasing securities in an offering
under this prospectus:
| · | the net tangible book
value per share of our equity securities before and after the offering; |
| · | the amount of the
increase in such net tangible book value per share attributable to the cash payments made
by the purchasers in the offering; and |
| · | the amount of the
immediate dilution from the public offering price which will be absorbed by such purchasers. |
DESCRIPTION
OF CAPITAL STOCK
The following description of our capital stock is intended as a
summary only. This description is based upon, and is qualified by reference to, our amended and restated certificate of incorporation,
or certificate of incorporation, our amended and restated bylaws, or bylaws, and applicable provisions of the Delaware General Corporation
Law, as amended, or the DGCL. This summary is not intended to be a complete description of our capital stock. You should read our certificate
of incorporation and bylaws for the provisions that are important to you.
General
Our authorized capital stock consists of 100,000,000
shares of common stock, par value $0.00005 per share.
As of August 27, 2024, 79,734,091 shares
of our common stock were outstanding and held by 31 stockholders of record.
Common Stock
The holders of our common stock are entitled
to one vote for each share held on all matters submitted to a vote of the stockholders. The holders of our common stock do not have any
cumulative voting rights. Holders of our common stock are entitled to receive ratably any dividends declared by our board of directors
out of funds legally available for that purpose. Our common stock has no preemptive rights, conversion rights or other subscription rights
or redemption or sinking fund provisions.
In the event of our liquidation, dissolution
or winding up, holders of our common stock will be entitled to share ratably in all assets remaining after payment of all debts and other
liabilities. All outstanding shares of common stock are fully paid and nonassessable.
Exchange Listing
Our common stock is listed on The Nasdaq Capital
Market under the trading symbol “BCLI.”
Transfer Agent and Registrar
The transfer agent and registrar for our common
stock is Equiniti Trust Company, LLC. The transfer agent and registrar’s address is 55 Challenger Road, 2nd Floor, Ridgefield Park,
NJ 07660, and its telephone number is (800) 937-5449. For callers outside of the United States and Canada, the transfer agent and registrar
can also be reached at (718) 921-8124.
Anti-Takeover Effects of our Certificate of Incorporation and Bylaws
and Delaware Law
Our certificate of incorporation and bylaws include
a number of provisions that may have the effect of delaying, deferring or preventing another party from acquiring control of us and encouraging
persons considering unsolicited tender offers or other unilateral takeover proposals to negotiate with our board of directors rather
than pursue non-negotiated takeover attempts. These provisions include the items described below.
Board Composition and Filling Vacancies
Our bylaws provide that directors may be removed
with or without cause at an annual meeting or at a special meeting called for that purpose, by a majority vote of the shares then entitled
to vote at an election of directors. Furthermore, any vacancy on our board of directors, however occurring, including a vacancy resulting
from an increase in the size of our board, may only be filled by the affirmative vote of a majority of our directors then in office even
if less than a quorum. The limitations on removal of directors, together with the treatment of vacancies, has the effect of making it
more difficult for stockholders to change the composition of our board of directors.
Meetings of Stockholders
Our certificate of incorporation provide that
the President, the Chairman of the Board, if any, or any two members of the board of directors, or by the Secretary or any other officer
upon the written request of one or more stockholders holding of record at least a majority of the outstanding shares of stock of the
corporation entitled to vote at such meeting may call special meetings of stockholders and only those matters set forth in the notice
of the special meeting may be considered or acted upon at a special meeting of stockholders. Our bylaws limit the business that may be
conducted at an annual meeting of stockholders to those matters properly brought before the meeting.
Amendment to Certificate of Incorporation and Bylaws
Any amendment of our certificate of incorporation
shall be approved in the manner prescribed by the DGCL. Pursuant to Section 242(b) of the DGCL, any amendment of our certificate of incorporation
must first be approved by a majority of our board of directors and must thereafter be approved by the affirmative vote of the holders
of a majority of the outstanding shares of our common stock, except that pursuant to Section 242(d) of the DGCL, any amendments of our
certificate of incorporation to effect a corporate name change or forward stock splits (subject to certain conditions) do not require
stockholder approval, and amendments of our certificate of incorporation to effect a reverse stock split or to increase or decrease the
number of authorized shares, in each case subject to certain conditions, require stockholder approval by the affirmative vote of a majority
of the votes cast by stockholders entitled to vote thereon. Our bylaws may be amended by the affirmative vote of a majority of the directors
present at any regular or special meeting of the board of directors at which a quorum is present; and may also be amended by the affirmative
vote of the holders of a majority of the shares of our capital stock issued and outstanding and entitled to vote at any regular meeting
of stockholders, or at any special meeting of stockholders provided notice of such alteration, amendment, repeal or adoption of new by-laws
shall have been stated in the notice of such special meeting.
Section 203 of the Delaware General Corporation Law
We are subject to the provisions of Section 203
of the Delaware General Corporation Law. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a “business
combination” with an “interested stockholder” for a three-year period following the time that this stockholder becomes
an interested stockholder, unless the business combination is approved in a prescribed manner. Under Section 203, a business combination
between a corporation and an interested stockholder is prohibited unless it satisfies one of the following conditions:
| · | before the stockholder
became interested, our board of directors approved either the business combination or the
transaction which resulted in the stockholder becoming an interested stockholder; |
| · | upon consummation
of the transaction which resulted in the stockholder becoming an interested stockholder,
the interested stockholder owned at least 85% of the voting stock of the corporation outstanding
at the time the transaction commenced, excluding for purposes of determining the voting |
| · | stock outstanding,
shares owned by persons who are directors and also officers, and employee stock plans, in
some instances, but not the outstanding voting stock owned by the interested stockholder;
or |
| · | at or after the time
the stockholder became interested, the business combination was approved by our board of
directors and authorized at an annual or special meeting of the stockholders by the affirmative
vote of at least two-thirds of the outstanding voting stock which is not owned by the interested
stockholder. |
Section 203 defines a business combination to
include:
| · | any merger or consolidation
involving the corporation and the interested stockholder; |
| · | any sale, transfer,
lease, pledge or other disposition involving the interested stockholder of 10% or more of
the assets of the corporation; |
| · | subject to exceptions,
any transaction that results in the issuance or transfer by the corporation of any stock
of the corporation to the interested stockholder; |
| · | subject to exceptions,
any transaction involving the corporation that has the effect of increasing the proportionate
share of the stock of any class or series of the corporation beneficially owned by the interested
stockholder; and |
| · | the receipt by the
interested stockholder of the benefit of any loans, advances, guarantees, pledges or other
financial benefits provided by or through the corporation. |
In general, Section 203 defines an interested
stockholder as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity
or person affiliated with or controlling or controlled by the entity or person.
DESCRIPTION
OF DEBT SECURITIES
We may offer debt securities which may be senior
or subordinated. We refer to senior debt securities and subordinated debt securities collectively as debt securities. Each series of
debt securities may have different terms. The following description summarizes the general terms and provisions of the debt securities.
We will describe the specific terms of the debt securities and the extent, if any, to which the general provisions summarized below apply
to any series of debt securities in the prospectus supplement relating to the series and any applicable free writing prospectus that
we authorize to be delivered.
We may issue senior debt securities from time
to time, in one or more series under a senior indenture to be entered into between us and a senior trustee to be named in a prospectus
supplement, which we refer to as the senior trustee. We may issue subordinated debt securities from time to time, in one or more series,
under a subordinated indenture to be entered into between us and a subordinated trustee to be named in a prospectus supplement, which
we refer to as the subordinated trustee. The forms of senior indenture and subordinated indenture are filed as exhibits to the registration
statement of which this prospectus forms a part. Together, the senior indenture and the subordinated indenture are referred to as the
indentures and, together, the senior trustee and the subordinated trustee are referred to as the trustees. This prospectus briefly outlines
some of the provisions of the indentures. The following summary of the material provisions of the indentures is qualified in its entirety
by the provisions of the indentures, including definitions of certain terms used in the indentures. Wherever we refer to particular sections
or defined terms of the indentures, those sections or defined terms are incorporated by reference in this prospectus or the applicable
prospectus supplement. You should review the indentures that are filed as exhibits to the registration statement of which this prospectus
forms a part for additional information. As used in this prospectus, the term “debt securities” includes the debt securities
being offered by this prospectus and all other debt securities issued by us under the indentures.
General
The indentures:
| · | do not limit the amount
of debt securities that we may issue; |
| · | allow us to issue
debt securities in one or more series; |
| · | do not require us
to issue all of the debt securities of a series at the same time; and |
| · | allow us to reopen
a series to issue additional debt securities without the consent of the holders of the debt
securities of such series. |
Unless otherwise provided in the applicable prospectus
supplement, the senior debt securities will be unsubordinated obligations and will rank equally with all of our other unsecured and unsubordinated
indebtedness. Payments on the subordinated debt securities will be subordinated to the prior payment in full of all of our senior indebtedness,
as described under “Subordination” and in the applicable prospectus supplement.
Each indenture provides that we may, but need
not, designate more than one trustee under an indenture. Any trustee under an indenture may resign or be removed and a successor trustee
may be appointed to act with respect to the series of debt securities administered by the resigning or removed trustee. If two or more
persons are acting as trustee with respect to different series of debt securities, each trustee shall be a trustee of a trust under the
applicable indenture separate and apart from the trust administered by any other trustee. Except as otherwise indicated in this prospectus,
any action described in this prospectus to be taken by each trustee may be taken by each trustee with respect to, and only with respect
to, the one or more series of debt securities for which it is trustee under the applicable indenture.
The prospectus supplement for each offering will
provide the following terms, where applicable:
| · | the title of the debt
securities and whether they are senior or subordinated; |
| · | any limit upon the
aggregate principal amount of the debt securities of that series; |
| · | the date or dates
on which the principal of the debt securities of the series is payable; |
| · | the price at which
the debt securities will be issued, expressed as a percentage of the principal and, if other
than the principal amount thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of the maturity thereof or, if applicable, the portion of the
principal amount of such debt securities that is convertible into another security of ours
or the method by which any such portion shall be determined; |
| · | the rate or rates
at which the debt securities of the series shall bear interest or the manner of calculation
of such rate or rates, if any; |
| · | the date or dates
from which interest will accrue, the interest payment dates on which such interest will be
payable or the manner of determination of such interest payment dates, the place(s) of payment,
and the record date for the determination of holders to whom interest is payable on any such
interest payment dates or the manner of determination of such record dates; |
| · | the right, if any,
to extend the interest payment periods and the duration of such extension; |
| · | the period or periods
within which, the price or prices at which and the terms and conditions upon which debt securities
of the series may be redeemed, converted or exchanged, in whole or in part; |
| · | our obligation, if
any, to redeem or purchase debt securities of the series pursuant to any sinking fund, mandatory
redemption, or analogous provisions (including payments made in cash in satisfaction of future
sinking fund obligations) or at the option of a holder thereof and the period or periods
within which, the price or prices at which, and the terms and conditions upon which, debt
securities of the series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation; |
| · | the form of the debt
securities of the series including the form of the Certificate of Authentication for such
series; |
| · | if other than minimum
denominations of one thousand U.S. dollars ($1,000) or any integral multiple of $1,000 thereof,
the denominations in which the debt securities of the series shall be issuable; |
| · | whether the debt securities
of the series shall be issued in whole or in part in the form of a global debt security or
global debt securities; the terms and conditions, if any, upon which such global debt security
or global debt securities may be exchanged in whole or in part for other individual debt
securities; and the depositary for such global debt security or global debt securities; |
| · | whether the debt securities
will be convertible into or exchangeable for common stock or other securities of ours or
any other Person and, if so, the terms and conditions upon which such debt securities will
be so convertible or exchangeable, including the conversion or exchange price, as applicable,
or how it will be calculated and may be adjusted, any mandatory or optional (at our option
or the holders’ option) conversion or exchange features, and the applicable conversion
or exchange period; |
| · | any additional or
alternative events of default to those set forth in the indenture; |
| · | any additional or
alternative covenants to those set forth in the indenture; |
| · | the currency or currencies
including composite currencies, in which payment of the principal of (and premium, if any)
and interest, if any, on such debt securities shall be payable (if other than the currency
of the United States of America), which unless otherwise specified shall be the currency
of the United States of America as at the time of payment is legal tender for payment of
public or private debts; |
| · | if the principal of
(and premium, if any), or interest,, if any, on such debt securities is to be payable, at
our election or at the election of any holder thereof, in a coin or currency other than that
in which such debt securities are stated to be payable, then the period or periods within
which, and the terms and conditions upon which, such election may be made; |
| · | whether interest will
be payable in cash or additional debt securities at our or the holders’ option and
the terms and conditions upon which the election may be made; |
| · | the terms and conditions,
if any, upon which we will pay amounts in addition to the stated interest, premium, if any
and principal amounts of the debt securities of the series to any holder that is not a “United
States person” for federal tax purposes; |
| · | additional or alternative
provisions, if any, related to defeasance and discharge of the offered debt securities than
those set forth in the indenture; |
| · | the applicability
of any guarantees; |
| · | any restrictions on
transfer, sale or assignment of the debt securities of the series; and |
| · | any other terms of
the debt securities (which may supplement, modify or delete any provision of the indenture
insofar as it applies to such series). |
We may issue debt securities that provide for
less than the entire principal amount thereof to be payable upon declaration of acceleration of the maturity of the debt securities.
We refer to any such debt securities throughout this prospectus as “original issue discount securities.”
We will provide you with more information in
the applicable prospectus supplement regarding any deletions, modifications, or additions to the events of default or covenants that
are described below, including any addition of a covenant or other provision providing event risk or similar protection.
Payment
Unless otherwise provided in the applicable prospectus
supplement, the principal of, and any premium or make-whole amount, and interest on, any series of the debt securities will be payable
by mailing a check to the address of the person entitled to it as it appears in the applicable register for the debt securities or by
wire transfer of funds to that person at an account maintained within the United States.
All monies that we pay to a paying agent or a
trustee for the payment of the principal of, and any premium, or interest on, any debt security will be repaid to us if unclaimed at
the end of two years after the obligation underlying payment becomes due and payable. After funds have been returned to us, the holder
of the debt security may look only to us for payment, without payment of interest for the period which we hold the funds.
Merger, Consolidation or Sale of Assets
The indentures provide that we may, without the
consent of the holders of any outstanding debt securities, (i) consolidate with, (ii) sell, lease or convey all or substantially all
of our assets to, or (iii) merge with or into, any other entity provided that:
| · | either we are the
continuing entity, or the successor entity, if other than us, assumes the obligations (a)
to pay the principal of, and any premium, and interest on, all of the debt securities and
(b) to duly perform and observe all of the covenants and conditions contained in the applicable
indenture; and in the event the debt securities are convertible into or exchangeable for
common stock or other securities of ours, such successor entity will, by such supplemental
indenture, make provision so that the holders of debt securities of that series shall thereafter
be entitled to receive upon conversion or exchange of such debt securities the number of
securities or property to which a holder of the number of common stock or other securities
of ours deliverable upon conversion or exchange of those debt securities would have been
entitled had such conversion or exchange occurred immediately prior to such consolidation,
merger, sale, conveyance, transfer or other disposition; and |
| · | an officers’
certificate and legal opinion covering such conditions are delivered to each applicable trustee. |
Events of Default, Notice and Waiver
Unless the applicable prospectus supplement states
otherwise, when we refer to “events of default” as defined in the indentures with respect to any series of debt securities,
we mean:
| · | default in the payment
of any installment of interest on any debt security of such series continuing for 90 days
unless such date has been extended or deferred; |
| · | default in the payment
of principal of, or any premium on, any debt security of such series when due and payable
unless such date has been extended or deferred; |
| · | default in the performance
or breach of any covenant or warranty in the debt securities or in the indenture by us continuing
for 90 days after written notice described below; |
| · | bankruptcy, insolvency
or reorganization, or court appointment of a receiver, liquidator or trustee of us; and |
| · | any other event of
default provided with respect to a particular series of debt securities. |
If an event of default (other than an event of
default described in the fourth bullet point above) occurs and is continuing with respect to debt securities of any series outstanding,
then the applicable trustee or the holders of 25% or more in principal amount of the debt securities of that series will have the right
to declare the principal amount of, and accrued interest on, all the debt securities of that series to be due and payable. If an event
of default described in the fourth bullet point above occurs, the principal amount of, and accrued interest on, all the debt securities
of that series will automatically become and will be immediately due and payable without any declaration or other act on the part of
the trustee or the holders of the debt securities. However, at any time after such a declaration of acceleration has been made, but before
a judgment or decree for payment of the money due has been obtained by the applicable trustee, the holders of at least a majority in
principal amount of outstanding debt securities of such series or of all debt securities then outstanding under the applicable indenture
may rescind and annul such declaration and its consequences if:
| · | we have deposited
with the applicable trustee all required payments of the principal, any premium, interest
and, to the extent permitted by law, interest on overdue installment of interest, plus applicable
fees, expenses, disbursements and advances of the applicable trustee; and |
| · | all events of default,
other than the non-payment of accelerated principal, or a specified portion thereof, and
any premium, have been cured or waived. |
| · | The indentures provide
that holders of debt securities of any series may not institute any proceedings, judicial
or otherwise, with respect to such indenture or for any remedy under the indenture, unless
the trustee fails to act for a period of 90 days after the trustee has received a written
request to institute proceedings in respect of an event of default from the holders of 25%
or more in principal amount of the outstanding debt securities of such series, as well as
an offer of indemnity reasonably satisfactory to the trustee. However, this provision will
not prevent any holder of debt securities from instituting suit for the enforcement of payment
of the principal of, and any premium, and interest on, such debt securities at the respective
due dates thereof. |
| · | The indentures provide
that, subject to provisions in each indenture relating to its duties in the case of a default,
a trustee has no obligation to exercise any of its rights or powers at the request or direction
of any holders of any series of debt securities then outstanding under the indenture, unless
the holders have offered to the trustee reasonable security or indemnity. The holders of
at least a majority in principal amount of the outstanding debt securities of any series
or of all debt securities then outstanding under an indenture shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available to the applicable
trustee, or of exercising any trust or power conferred upon such trustee. However, a trustee
may refuse to follow any direction which: |
| · | is in conflict with
any law or the applicable indenture; |
| · | may involve the trustee
in personal liability; or |
| · | may be unduly prejudicial
to the holders of debt securities of the series not joining the proceeding. |
Within 120 days after the close of each fiscal
year, we will be required to deliver to each trustee a certificate, signed by one of our several specified officers, stating whether
or not that officer has knowledge of any default under the applicable indenture. If the officer has knowledge of any default, the notice
must specify the nature and status of the default.
Modification of the Indentures
Subject to certain exceptions, the indentures
may be amended with the consent of the holders of a majority in aggregate principal amount of the outstanding debt securities of all
series affected by such amendment (including consents obtained in connection with a tender offer or exchange for the debt securities
of such series).We and the applicable trustee may make modifications and amendments of an indenture without the consent of any holder
of debt securities for any of the following purposes:
| · | to cure any ambiguity,
defect, or inconsistency in the applicable indenture or in the Securities of any series; |
| · | to comply with the
covenant described above under “Merger, Consolidation or Sale of Assets”; |
| · | to provide for uncertificated
debt securities in addition to or in place of certificated debt securities; |
| · | to add events of default
for the benefit of the holders of all or any series of debt securities; |
| · | to add the covenants,
restrictions, conditions or provisions relating to us for the benefit of the holders of all
or any series of debt securities (and if such covenants, restrictions, conditions or provisions
are to be for the benefit of less than all series of debt securities, stating that such covenants,
restrictions, conditions or provisions are expressly being included solely for the benefit
of such series), to make the occurrence, or the occurrence and the continuance, of a default
in any such additional covenants, restrictions, conditions or provisions an event of default,
or to surrender any right or power in the applicable indenture conferred upon us; |
| · | to add to, delete
from, or revise the conditions, limitations, and restrictions on the authorized amount, terms,
or purposes of issue, authentication, and delivery of debt securities, as set forth in the
applicable indenture; |
| · | to make any change
that does not adversely affect the rights of any holder of notes under the applicable indenture
in any material respect; |
| · | to provide for the
issuance of and establish the form and terms and conditions of the debt securities of any
series as provided in the applicable indenture, to establish the form of any certifications
required to be furnished pursuant to the terms of the applicable indenture or any series
of debt securities under the applicable indenture, or to add to the rights of the holders
of any series of debt securities; |
| · | to evidence and provide
for the acceptance of appointment under the applicable indenture by a successor trustee or
to appoint a separate trustee with respect to any series; |
| · | to comply with any
requirements of the SEC or any successor in connection with the qualification of the indenture
under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act; or |
| · | to conform the applicable
indenture to this “Description of Debt Securities” or any other similarly titled
section in any prospectus supplement or other offering document relating to a series of debt
securities. |
Subordination
Payment by us of the principal of, premium, if
any, and interest on any series of subordinated debt securities issued under the subordinated indenture will be subordinated to the extent
set forth in an indenture supplemental to the subordinated indenture relating to such series.
Discharge, Defeasance and Covenant Defeasance
Unless otherwise provided in the applicable prospectus
supplement, the indentures allow us to discharge our obligations to holders of any series of debt securities issued under any indenture
when:
| · | either (i) all securities
of such series have already been delivered to the applicable trustee for cancellation; or
(ii) all securities of such series have not already been delivered to the applicable trustee
for cancellation but (a) have become due and payable, (b) will become due and payable within
one year, or (c) if redeemable at our option, are to be redeemed within one year, and we
have irrevocably deposited with the applicable trustee, in trust, funds in such currency
or currencies, or governmental obligations in an amount sufficient to pay the entire indebtedness
on such debt securities in respect of principal and any premium, and interest to the date
of such deposit if such debt securities have become due and payable or, if they have not,
to the stated maturity or redemption date; or |
| · | we have paid or caused
to be paid all other sums payable. |
Unless otherwise provided in the applicable prospectus
supplement, the indentures provide that, upon our irrevocable deposit with the applicable trustee, in trust, of an amount, in such currency
or currencies in which such debt securities are payable at stated maturity, or government obligations, or both, applicable to such debt
securities, which through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount
sufficient to pay the principal of, and any premium or make-whole amount, and interest on, such debt securities, and any mandatory sinking
fund or analogous payments thereon, on the scheduled due dates therefor, the issuing company shall be released from its obligations with
respect to such debt securities under the applicable indenture or, if provided in the applicable prospectus supplement, its obligations
with respect to any other covenant, and any omission to comply with such obligations shall not constitute an event of default with respect
to such debt securities.
The applicable prospectus supplement may further
describe the provisions, if any, permitting such defeasance or covenant defeasance, including any modifications to the provisions described
above, with respect to the debt securities of or within a particular series.
Conversion Rights
The terms and conditions, if any, upon which
the debt securities are convertible into common stock or other securities of ours will be set forth in the applicable prospectus supplement.
The terms will include whether the debt securities are convertible into shares of common stock or other securities of ours, the conversion
price, or manner of calculation thereof, the conversion period, provisions as to whether conversion will be at the issuing company’s
option or the option of the holders, the events requiring an adjustment of the conversion price and provisions affecting conversion in
the event of the redemption of the debt securities and any restrictions on conversion.
Governing Law
The indentures and the debt securities will be
governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is
applicable.
DESCRIPTION
OF WARRANTS
We may issue warrants to purchase debt securities
or common stock. We may offer warrants separately or together with one or more additional warrants, debt securities or common stock,
or any combination of those securities in the form of units, as described in the applicable prospectus supplement. If we issue warrants
as part of a unit, the applicable prospectus supplement will specify whether those warrants may be separated from the other securities
in the unit prior to the expiration date of the warrants. The applicable prospectus supplement will also describe the following terms
of any warrants:
| · | the specific designation
and aggregate number of, and the offering price at which we will issue, the warrants; |
| · | the currency or currency
units in which the offering price, if any, and the exercise price are payable; |
| · | the date on which
the right to exercise the warrants will begin and the date on which that right will expire
or, if you may not continuously exercise the warrants throughout that period, the specific
date or dates on which you may exercise the warrants; |
| · | whether the warrants
are to be sold separately or with other securities as parts of units; |
| · | whether the warrants
will be issued in definitive or global form or in any combination of these forms, although,
in any case, the form of a warrant included in a unit will correspond to the form of the
unit and of any security included in that unit; |
| · | any applicable material
U.S. federal income tax consequences; |
| · | the identity of the
warrant agent for the warrants and of any other depositaries, execution or paying agents,
transfer agents, registrars or other agents; |
| · | the proposed listing,
if any, of the warrants or any securities purchasable upon exercise of the warrants on any
securities exchange; |
| · | the designation and
terms of any equity securities purchasable upon exercise of the warrants; |
| · | the designation, aggregate
principal amount, currency and terms of any debt securities that may be purchased upon exercise
of the warrants; |
| · | if applicable, the
designation and terms of the debt securities or common stock with which the warrants are
issued and, the number of warrants issued with each security; |
| · | if applicable, the
date from and after which any warrants issued as part of a unit and the related debt securities
or common stock will be separately transferable; |
| · | the number of shares
of common stock purchasable upon exercise of a warrant and the price at which those shares
may be purchased; |
| · | if applicable, the
minimum or maximum amount of the warrants that may be exercised at any one time; |
| · | information with respect
to book-entry procedures, if any; |
| · | the antidilution provisions
of, and other provisions for changes to or adjustment in the exercise price of, the warrants,
if any; |
| · | any redemption or
call provisions; and |
| · | any additional terms
of the warrants, including terms, procedures and limitations relating to the exchange or
exercise of the warrants. |
Specific warrant agreements will contain additional
important terms and provisions and will be incorporated by reference as an exhibit to the registration statement of which this prospectus
forms a part.
DESCRIPTION
OF UNITS
The following description, together with the
additional information that we include in any applicable prospectus supplements and in any related free writing prospectuses, summarizes
the material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will
apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in
more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the
terms described below.
We will file as exhibits to the registration
statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of unit
agreement that describes the terms of the series of units we are offering, and any supplemental agreements, before the issuance of the
related series of units. The following summaries of material terms and provisions of the units are subject to, and qualified in their
entirety by reference to, all the provisions of the unit agreement and any supplemental agreements applicable to a particular series
of units. We urge you to read the applicable prospectus supplements related to the particular series of units that we may offer under
this prospectus, as well as any related free writing prospectuses and the complete unit agreement and any supplemental agreements that
contain the terms of the units.
General
We may issue units comprised of shares of common
stock, debt securities, warrants and units in any combination. Each unit will be issued so that the holder of the unit is also the holder
of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security.
The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately,
at any time or at any time before a specified date.
We will describe in the applicable prospectus
supplement the terms of the series of units, including:
| · | designation and terms
of the units, including whether and under what circumstances the securities comprising the
units may be held or transferred separately; |
| · | any provisions of
the governing unit agreement that differ from those described below; and |
| · | any provisions for
the issuance, payment, settlement, transfer or exchange of the units or of the securities
comprising the units. |
The provisions described in this section, as
well as those described under “Description of Capital Stock,” “Description of Debt Securities” and “Description
of Warrants,” will apply to each unit and to the common stock, debt securities and warrants included in each unit, respectively.
Issuance in Series
We may issue units in such amounts and in such
numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent
under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit.
A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility
in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings
at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder
of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.
Title
We, the unit agent and any of its agents, may
treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any purpose and
as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the contrary.
PLAN
OF DISTRIBUTION
We may sell securities through any one or more
of the following methods from time to time:
| · | to or through underwriters,
brokers or dealers; |
| · | directly to one or
more other purchasers in negotiated sales or competitively bid transactions; |
| · | in an “at the
market offering,” within the meaning of Rule 415(a)(4) of the Securities Act; |
| · | through a block trade
in which the broker or dealer engaged to handle the block trade will attempt to sell the
securities as agent, but may position and resell a portion of the block as principal to facilitate
the transaction; or |
| · | through a combination
of any of the above methods of sale. |
We may directly solicit offers to purchase securities,
or agents may be designated to solicit such offers. We will, in the prospectus supplement relating to such offering, name any agent that
could be viewed as an underwriter under the Securities Act and describe any commissions that we must pay. Any such agent will be acting
on a best efforts basis for the period of its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment
basis. This prospectus may be used in connection with any offering of our securities through any of these methods or other methods described
in the applicable prospectus supplement.
The distribution of the securities may be effected
from time to time in one or more transactions:
| · | at a fixed price,
or prices, which may be changed from time to time; |
| · | at market prices prevailing
at the time of sale; |
| · | at prices related
to such prevailing market prices; or |
Each prospectus supplement will describe the
method of distribution of the securities and any applicable restrictions.
The prospectus supplement with respect to the
securities of a particular series will describe the terms of the offering of the securities, including the following:
| · | the name of the agent
or any underwriters; |
| · | the public offering
or purchase price; |
| · | any discounts and
commissions to be allowed or paid to the agent or underwriters; |
| · | all other items constituting
underwriting compensation; |
| · | any discounts and
commissions to be allowed or paid to dealers; and |
| · | any exchanges on which
the securities will be listed. |
If any underwriters or agents are utilized in
the sale of the securities in respect of which this prospectus is delivered, we will enter into an underwriting agreement or other agreement
with them at the time of sale to them, and we will set forth in the prospectus supplement relating to such offering the names of the
underwriters or agents and the terms of the related agreement with them.
If a dealer is utilized in the sale of the securities
in respect of which the prospectus is delivered, we will sell such securities to the dealer, as principal. The dealer may then resell
such securities to the public at varying prices to be determined by such dealer at the time of resale.
If we offer securities in a subscription rights
offering to our existing security holders, we may enter into a standby underwriting agreement with dealers, acting as standby underwriters.
We may pay the standby underwriters a commitment fee for the securities they commit to purchase on a standby basis. If we do not enter
into a standby underwriting arrangement, we may retain a dealer-manager to manage a subscription rights offering for us.
Agents, underwriters, dealers and other persons
may be entitled under agreements which they may enter into with us to indemnification by us against certain civil liabilities, including
liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary
course of business.
If so indicated in the applicable prospectus
supplement, we will authorize underwriters or other persons acting as our agents to solicit offers by certain institutions to purchase
securities from us pursuant to delayed delivery contracts providing for payment and delivery on the date stated in the prospectus supplement.
Each contract will be for an amount not less than, and the aggregate amount of securities sold pursuant to such contracts shall not be
less nor more than, the respective amounts stated in the prospectus supplement. Institutions with whom the contracts, when authorized,
may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable
institutions and other institutions, but shall in all cases be subject to our approval. Delayed delivery contracts will not be subject
to any conditions except that:
| · | the purchase by an
institution of the securities covered under that contract shall not at the time of delivery
be prohibited under the laws of the jurisdiction to which that institution is subject; and |
| · | if the securities
are also being sold to underwriters acting as principals for their own account, the underwriters
shall have purchased such securities not sold for delayed delivery. The underwriters and
other persons acting as our agents will not have any responsibility in respect of the validity
or performance of delayed delivery contracts. |
Certain agents, underwriters and dealers, and
their associates and affiliates may be customers of, have borrowing relationships with, engage in other transactions with, or perform
services, including investment banking services, for us or one or more of our respective affiliates in the ordinary course of business.
In order to facilitate the offering of the securities,
any underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities or any other securities
the prices of which may be used to determine payments on such securities. Specifically, any underwriters may overallot in connection
with the offering, creating a short position for their own accounts. In addition, to cover overallotments or to stabilize the price of
the securities or of any such other securities, the underwriters may bid for, and purchase, the securities or any such other securities
in the open market. Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may reclaim
selling concessions allowed to an underwriter or a dealer for distributing the securities in the offering if the syndicate repurchases
previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any
of these activities may stabilize or maintain the market price of the securities above independent market levels. Any such underwriters
are not required to engage in these activities and may end any of these activities at any time.
Under Rule 15c6-1 of the Exchange Act, trades
in the secondary market generally are required to settle in one business day, unless the parties to any such trade expressly agree otherwise.
The applicable prospectus supplement may provide that the original issue date for your securities may be more than one scheduled business
day after the trade date for your securities. Accordingly, in such a case, if you wish to trade securities on any date prior to the second
business day before the original issue date for your securities, you will be required, by virtue of the fact that your securities initially
are expected to settle in more than one scheduled business day after the trade date for your securities, to make alternative settlement
arrangements to prevent a failed settlement.
The securities may be new issues of securities
and may have no established trading market. The securities may or may not be listed on a national securities exchange. We can make no
assurance as to the liquidity of or the existence of trading markets for any of the securities.
The specific terms of any lock-up provisions in
respect of any given offering will be described in the applicable prospectus supplement.
Any underwriters, dealers and agents may engage
in transactions with us, or perform services for us, in the ordinary course of business for which they receive compensation.
The anticipated date of delivery of offered securities
will be set forth in the applicable prospectus supplement relating to each offer.
LEGAL
MATTERS
Unless the applicable prospectus supplement indicates
otherwise, the validity of the securities in respect of which this prospectus is being delivered will be passed upon by Goodwin Procter
LLP.
EXPERTS
The consolidated financial statements of Brainstorm
Cell Therapeutics Inc. as of December 31, 2022 and 2023 and for each of the years in the two-year period ended December 31, 2023 incorporated
in this Prospectus by reference from the Brainstorm Cell Therapeutics Inc. have been audited by Brightman Almagor Zohar & Co., a
Firm in the Deloitte Global Network, an independent registered public accounting firm, as stated in their report thereon, incorporated
herein by reference, and have been incorporated in this Prospectus and Registration Statement in reliance upon such report and upon the
authority of such firm as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s
website at www.sec.gov. Copies of certain information filed by us with the SEC are also available on our website at www.brainstorm-cell.com.
Our website is not a part of this prospectus and is not incorporated by reference in this prospectus.
This prospectus is part of a registration statement
we filed with the SEC. This prospectus omits some information contained in the registration statement in accordance with SEC rules and
regulations. You should review the information and exhibits in the registration statement for further information on us and the securities
we are offering. Statements in this prospectus concerning any document we filed as an exhibit to the registration statement or that we
otherwise filed with the SEC are not intended to be comprehensive and are qualified by reference to these filings. You should review
the complete document to evaluate these statements. You can obtain a copy of the registration statement from the SEC at the address listed
above or from the SEC’s website.
INCORPORATION
BY REFERENCE
The SEC allows us to incorporate by reference
much of the information we file with the SEC, which means that we can disclose important information to you by referring you to those
publicly available documents. The information that we incorporate by reference in this prospectus is considered to be part of this prospectus.
Because we are incorporating by reference future
filings with the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information
included or incorporated in this prospectus. This means that you must look at all of the SEC filings that we incorporate by reference
to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or
superseded. This prospectus incorporates by reference the documents listed below and any future filings we make with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act (in each case, other than those documents
or the portions of those documents not deemed to be filed) between the date of the initial registration statement and the effectiveness
of the registration statement and following the effectiveness of the registration statement until the offering of the securities under
the registration statement is terminated or completed:
| · | Quarterly Reports
on Form 10-Q for the quarters ended March 31, 2024, and June 30, 2024, which were filed with
the SEC on May
14, 2024, and August 14, 2024, respectively; |
| · | Current Reports on
Form 8-K filed on April
2, 2024, April
9, 2024, April
11, 2024, April
17, 2024, May
3, 2024, June
4, 2024, June
20, 2024, June
26, 2024, June
28, 2024, July
19, 2024 and July
30, 2024; and |
We incorporate by reference any future filings
made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act between the date of this prospectus and the termination
of the offering.
Notwithstanding the foregoing, unless specifically
stated to the contrary, information that we furnish (and that is not deemed “filed” with the SEC) under Items 2.02 and 7.01
of any Current Report on Form 8-K, including the related exhibits under Item 9.01, is not incorporated by reference into this prospectus
or the registration statement of which this prospectus is a part.
Any statement contained in a document that is
incorporated by reference will be modified or superseded for all purposes to the extent that a statement contained in this prospectus,
or in any other document that is subsequently filed with the SEC and incorporated by reference into this prospectus, modifies or is contrary
to that previous statement. Any statement so modified or superseded will not be deemed a part of this prospectus, except as so modified
or superseded. Since information that we later file with the SEC will update and supersede previously incorporated information, you should
look at all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any documents
previously incorporated by reference have been modified or superseded.
Upon request, we will provide, without charge,
to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, a copy of the documents incorporated
by reference into this prospectus but not delivered therewith. You may request a copy of these filings, and any exhibits we have specifically
incorporated by reference as an exhibit in this prospectus, at no cost by writing or telephoning us at the following address: Brainstorm
Cell Therapeutics Inc. 1325 Avenue of Americas, 28th Floor, New York, NY 10019, Attention: Chief Executive Officer; telephone: (201)
488-0460.
You may also access these documents, free of
charge on the SEC’s website at www.sec.gov or on our website at www.brainstorm-cell.com. Information contained on
our website is not incorporated by reference into this prospectus and you should not consider any information on, or that can be accessed
from, our website as part of this prospectus.
This prospectus is part of a registration statement
we filed with the SEC. We have incorporated exhibits into this registration statement. You should read the exhibits carefully for provisions
that may be important to you. You should rely only on the information incorporated by reference or provided in this prospectus. We have
not authorized anyone to provide you with different information. We are not making an offer of these securities in any state where the
offer is not permitted. You should not assume that the information in this prospectus or in the documents incorporated by reference is
accurate as of any date other than the date on the front of this prospectus or those documents.
$172,561,230
Common Stock
Debt Securities
Warrants
Units
PROSPECTUS
, 2024
We have not authorized any dealer, salesperson or other person to
give any information or represent anything not contained in this prospectus. You must not rely on any unauthorized information. If anyone
provides you with different or inconsistent information, you should not rely on it. This prospectus does not offer to sell any securities
in any jurisdiction where it is unlawful. Neither the delivery of this prospectus, nor any sale made hereunder, shall create any implication
that the information in this prospectus is correct after the date hereof.
The information in this prospectus is not complete
and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission
is effective. This prospectus is not an offer to sell these securities and we are not soliciting offers to buy these securities in any
jurisdiction where the offer or sale is not permitted.
Subject to completion, dated
August 28, 2024
PROSPECTUS
$5,776,035
Common Stock
This prospectus and any accompanying prospectus relate to the offer
and sale from time to time of shares of our common stock, par value $0.00005 per share, having an aggregate offering price of up to $5,776,035.
We previously entered into a Distribution Agreement with Leerink Partners
LLC (“Leerink Partners”) and Raymond James & Associates, Inc. (“Raymond James”), dated August 9,
2021 (the “Distribution Agreement”), relating to the issuance and sale of shares of our common stock, par value $0.00005 per
share, having an aggregate offering price of up to $100,000,000. On April 2, 2024, we entered into Amendment No. 1 to the Distribution
Agreement (“Amendment No. 1”) pursuant to which Leerink Partners ceased to be an agent.
Shares of our common stock to which this prospectus relates may be
offered over a period of time and from time to time through Raymond James, as our distribution agent, which we refer to as our Distribution
Agent, for sale to the public in accordance with the terms of the Distribution Agreement, as amended. Sales of shares of our common stock,
if any, may be made in transactions that are deemed to be “at-the-market offerings” as defined in Rule 415 under the
Securities Act of 1933, as amended, or the Securities Act, including sales made directly on or through the Nasdaq Capital Market, sales
made to or through a market maker other than on an exchange, in transactions at market prices prevailing at the time of sale or at prices
related to such market prices, or any other method permitted by law. Under the terms of the Distribution Agreement, as amended, we may
also sell our common stock to the Distribution Agent as principal for its own account at prices agreed upon at the time of sale. If we
sell our common stock to the Distribution Agent as principal, we will enter into a separate terms agreement with the Distribution Agent.
The Distribution Agent is not required to sell any specific dollar amount or number of securities, but will act as the Distribution Agent
using commercially reasonable efforts consistent with its normal trading and sales practice, on mutually agreed upon terms between us
and the Distribution Agent. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
Our common stock is listed on the Nasdaq Capital Market under the symbol
“BCLI.” On August 27, 2024, the last reported sale price of our common stock on the Nasdaq Capital Market was $0.3139
per share.
As of the date of this prospectus, the aggregate market value of
our outstanding common stock held by non-affiliates pursuant to General Instruction I.B.6 of Form S-3 is $31,613,306, which was calculated
based on 75,269,777 shares of our outstanding common stock held by non-affiliates as of July 31, 2024 and a price of $0.42 per share,
the closing price of our common stock on July 15, 2024, which is within 60 days of the date of this prospectus. As of the date of
this prospectus, we have sold approximately $4,761,733 of our securities pursuant to General Instruction I.B.6 of Form S-3 during
the period of 12 calendar months immediately prior to, and including, the date of this prospectus. Pursuant to General Instruction I.B.6
of Form S-3, in no event will we sell securities in public primary offerings on Form S-3 with a value exceeding more than one-third
of our public float (as defined by General Instruction I.B.6) in any 12 calendar month period so long as our public float remains below
$75.0 million.
We will pay the Distribution Agent a commission rate equal to 3.0%
of the gross sales price of all shares sold by it as the Distribution Agent under the Distribution Agreement, as amended. In connection
with the sale of our common stock on our behalf, the Distribution Agent will be deemed to be an “underwriter” within the meaning
of the Securities Act and the compensation of the Distribution Agent will be deemed to be underwriting commissions. We have also agreed
to provide rights of indemnification and contribution to the Distribution Agent with respect to certain liabilities, including liabilities
under the Securities Act.
Investing in our common stock involves a high degree of risk. Before
deciding whether to invest in our common stock, you should review carefully the risks and uncertainties that are described in the “Risk Factors” section beginning on page S-6 of this prospectus, and in the documents incorporated by reference herein, including
our most recent Annual Report on Form 10-K, as well as the risks and uncertainties described in the other documents incorporated
herein by reference.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this prospectus and any accompanying prospectus are truthful
or complete. Any representation to the contrary is a criminal offense.
Raymond James
The date of this prospectus is , 2024.
TABLE OF CONTENTS
We are responsible for the information contained
and incorporated by reference in this prospectus, in the accompanying prospectus, and in any related free writing prospectus we prepare
or authorize. We have not authorized anyone to give you any other information, and we take no responsibility for any other information
that others may give you. If you are in a jurisdiction where offers to sell, or solicitations of offers to purchase, the securities offered
by this documentation are unlawful, or if you are a person to whom it is unlawful to direct these types of activities, then the offer
presented in this document does not extend to you. The information contained in this document speaks only as of the date of this document,
unless the information specifically indicates that another date applies. Our business, financial condition, results of operations and
prospects may have changed since those dates.
ABOUT
THIS PROSPECTUS
This
prospectus is part of a shelf registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or the
SEC. We may offer shares of our common stock having an aggregate offering price of up to $5,776,035 from time to time under this
prospectus and the accompanying prospectus at prices and on terms to be determined by market conditions at the time of the offering.
If the information contained in this prospectus
differs or varies from the information contained in any document incorporated by reference herein that was filed with the SEC before the
date of this prospectus, you should rely on the information set forth in this prospectus. If any statement in one of these documents is
inconsistent with a statement in another document having a later date (for example, a subsequently filed document deemed incorporated
by reference in this prospectus), the statement in the document having the later date modifies or supersedes the earlier statement. Any
statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
You should rely only on the information contained
or incorporated by reference in this prospectus. We have not, and the Distribution Agent has not, authorized anyone to provide you with
information that is in addition to or different from that contained or incorporated by reference in this prospectus or contained in any
permitted free writing prospectuses we may authorize for use in connection with this offering. We and the Distribution Agent take no responsibility
for, and can provide no assurance as to the reliability of, any other information that others may provide.
The information contained in this prospectus and
the documents incorporated by reference herein is accurate only as of their respective dates, regardless of the time of delivery of any
such document or the time of any sale of our common stock. Our business, financial condition, results of operations and prospects may
have changed since those dates. It is important for you to read and consider all information contained or incorporated by reference in
this prospectus in making your investment decision. You should read this prospectus, as well as the documents incorporated by reference
herein, the additional information described under the section titled “Where You Can Find More Information” and “Incorporation
of Certain Documents by Reference” in this prospectus and any free writing prospectus that we may authorize for use in connection
with this offering, before investing in our common stock.
We further note that the representations, warranties
and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference in this prospectus
were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among
the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations,
warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should
not be relied on as accurately representing the current state of our affairs.
We use various trademarks and trade names in our
business, including without limitation our corporate name and logo. All other trademarks or trade names referred to in this prospectus
are the property of their respective owners. Solely for convenience, the trademarks and trade names in this prospectus may be referred
to without the ® and ™ symbols, but such references should not be construed as any indicator that their respective owners will
not assert, to the fullest extent under applicable law, their rights thereto. This prospectus and the documents incorporated by reference
herein also contain estimates, projections and other information concerning our industry, our business, and the markets for certain diseases,
including data regarding the estimated size of those markets, and the incidence and prevalence of certain medical conditions. Information
that is based on estimates, forecasts, projections, market research or similar methodologies is inherently subject to uncertainties and
actual events or circumstances may differ materially from events and circumstances reflected in this information. Unless otherwise expressly
stated, we obtained this industry, business, market and other data from reports, research surveys, studies and similar data prepared by
market research firms and other third parties, industry, medical and general publications, government data and similar sources. We are
offering to sell, and seeking offers to buy, shares of our common stock only in jurisdictions where such offers and sales are permitted.
The distribution of this prospectus and the offering of our common stock in certain jurisdictions may be restricted by law. Persons outside
the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to,
the offering of our common stock and the distribution of this prospectus outside the United States. This prospectus does not constitute,
and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus
by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
Unless the context suggests otherwise, all references
in this prospectus and any free writing prospectus to “us,” “our,” “Brainstorm,” “we,”
the “Company” and similar designations refer to Brainstorm Cell Therapeutics Inc. and, where appropriate, our subsidiaries.
PROSPECTUS
SUMMARY
This
summary highlights selected information about us and this offering and does not contain all of the information that you should consider
before investing in our common stock. Before investing in our common stock, you should carefully read the information contained and incorporated
by reference in this prospectus, including the section titled “Risk Factors” and the financial statements and accompanying
notes.
Our Business
Brainstorm Cell Therapeutics Inc. is a leading
biotechnology company committed to the development and commercialization of best-in-class autologous cellular therapies for the treatment
of neurodegenerative diseases, including ALS, also known as Lou Gehrig’s disease); PMS; AD; and other neurodegenerative diseases.
NurOwn®, our proprietary cell therapy platform, leverages cell culture methods to induce autologous bone marrow-derived mesenchymal
stem cells(“MSCs”) to secrete high levels of neurotrophic factors (“NTFs”), modulate neuroinflammatory and neurodegenerative
disease processes, promote neuronal survival and improve neurological function.
NurOwn® has completed its Phase 3 ALS and Phase
2 PMS clinical trials. On November 17, 2020, we announced top-line data from our Phase 3 ALS trial. On March 24, 2021, we announced
positive top-line data from our Phase 2 trial evaluating three repeated intrathecal administrations of NurOwn®, each given 2 months
apart, as a treatment for PMS. On June 24, 2020, we announced a new clinical program focused on the development of NurOwn® as
a treatment for AD. On August 15, 2022, we announced our decision to submit a Biologics License Application (“BLA”) to
the U.S. Food and Drug Administration (“FDA”)for NurOwn® for the treatment of ALS. On September 9, 2022, we filed
a BLA to the FDA for NurOwn® for the treatment of ALS. On November 10, 2022, we announced that we had received a refusal to file
(“RTF”) letter from the FDA regarding our BLA. On September 22, 2023, we submitted an amendment to our BLA to revise
the indication to NurOwn® for the treatment of mild to moderate ALS. On September 27, 2023, we announced that the Advisory Committee
voted, with 17 voting no, one voting yes, and one abstention, that NurOwn® did not demonstrate substantial evidence of effectiveness
for treatment of mild to moderate ALS. On October 18, 2023, we announced that FDA invited the Company to request an expedited face-to-face
meeting to discuss the path forward for NurOwn® as a treatment for ALS. Brainstorm remains committed to the ALS Community and is actively
exploring the next steps in support of NurOwn®, including publication of emerging clinical data and development of a protocol for
an additional clinical study. On October 18, 2023 Brainstorm announced that the BLA for NurOwn® would be withdrawn. The BLA was
withdrawn on November 3, 2023. The decision to withdraw the BLA was coordinated with FDA and is viewed by FDA as a withdrawal without
prejudice. On November 20, 2023, we announced that the FDA granted the company a meeting to discuss the regulatory path forward for
NurOwn® in ALS. The meeting took place on December 6, 2023. On December 7, 2023, we announced the completion of a productive
meeting with the FDA to discuss NurOwn®. The primary objective of the meeting was to discuss plans for a Special Protocol Assessment
(“SPA”)with FDA on the overall protocol design for a planned Phase 3b registrational trial for NurOwn®. The ultimate goal
of the SPA is to secure the FDA’s agreement that critical elements of the overall protocol design (e.g., entry criteria, endpoints,
planned analyses) are adequate and acceptable for a study intended to support a future marketing application. On February 23, 2024,
we announced that we submitted the SPA request to the FDA for the planned Phase 3b clinical trial of NurOwn® for the treatment of
ALS. On April 9, 2024, the Company announced that it received written agreement from the FDA, under a SPA, on the design for a Phase
3b trial of NurOwn® in ALS. The SPA agreement with the FDA validates the clinical trial protocol and statistical analysis of the planned
Phase 3b trial of NurOwn, demonstrating the Company’s adequacy in addressing objectives that support a future BLA in ALS. On June 26,
2024, the Company announced that it has reached alignment with FDA on the Chemistry, Manufacturing, and Controls (CMC) aspects of Brainstorm's
Phase 3b clinical trial for NurOwn®, its investigational therapy for ALS. This Type C meeting builds upon the positive momentum established
in April 2024, when the FDA granted Brainstorm a SPA agreement for its NurOwn Phase 3b trial.
Our wholly-owned Israeli subsidiary, Brainstorm
Cell Therapeutics Ltd. (“Israeli Subsidiary”), holds exclusive rights to commercialize NurOwn® technology through a licensing
agreement with Ramot (“Ramot”), the technology transfer company of Tel Aviv University, Israel.
NurOwn® has a strong and comprehensive intellectual
property portfolio and was granted Fast Track designation by the FDA and Orphan Drug status by the FDA and the European Medicines Agency
(“EMA”) for ALS.
Implications of Being a Smaller Reporting Company
We are a “smaller reporting company”
as defined in the Securities Exchange Act of 1934, as amended. We may continue to be a smaller reporting company after this offering if
either (i) the market value of our shares held by non-affiliates is less than $250 million or (ii) our annual revenue was less
than $100 million during the most recently completed fiscal year and the market value of our shares held by non-affiliates is less than
$700 million. If we are a smaller reporting company at the time we cease to be an emerging growth company, we may continue to rely on
exemptions from certain disclosure requirements that are available to smaller reporting companies.
Corporate Information
We are incorporated under the laws of the State
of Delaware. Our principal executive offices are located at 1325 Avenue of Americas, 28th Floor, New York, NY 10019, and our telephone
number is (201) 488-0460. We also maintain an office in Petach Tikva, Israel. We maintain a website at http://www.brainstorm-cell.com.
No portion of our website is incorporated by reference into this prospectus and you should not consider any information on, or that can
be accessed through, our website as part of this prospectus. Our common stock trades on The Nasdaq Capital Market under the symbol “BCLI”.
THE OFFERING
| Common stock offered by us: |
|
Shares of our common stock having an aggregate offering price of up to $5,776,035. |
| |
|
|
| Common stock to be outstanding after this offering: |
|
Up to 98,047,818 shares (as more fully described in the notes following this table), assuming sales of 18,400,876 shares of our common stock in this offering at an offering price of $0.3139 per share, which was the last reported sale price of our common stock on The Nasdaq Capital Market on August 27, 2024. The actual number of shares issued will vary depending on the sales prices under this offering. |
| |
|
|
| Manner of offering: |
|
“At the market offering” that may be made from time to time on The Nasdaq Capital Market or other existing trading market for our common stock through our distribution agent, Raymond James & Associates, Inc., or the Distribution Agent, and such other sales as agreed upon by us and the Distribution Agent. See “Plan of Distribution” on page S-17 of this prospectus. |
| |
|
|
| Use of proceeds: |
|
We intend to use the net proceeds from the sale of our common stock in this offering to advance our clinical programs and for working capital and general corporate purposes. See “Use of Proceeds” on page S-9 of this prospectus. |
| |
|
|
| Risk factors: |
|
Investing in our common stock involves risks. See “Risk Factors” beginning on page S-6 of this prospectus and under similar headings in the documents incorporated by reference herein for a discussion of the factors you should carefully consider before deciding to invest in our common stock. |
| |
|
|
| Nasdaq Capital Market symbol: |
|
“BCLI” |
All information in this prospectus related to the
number of shares of our common stock to be outstanding immediately after this offering is based on 79,646,942 shares of our common stock
outstanding as of June 30, 2024. The number of shares outstanding as of June 30, 2024, excludes:
| • | 1,444,050 shares of common stock issuable upon the exercise of share options outstanding as of June 30, 2024, at a weighted average
exercise price of $2.6294 per share; |
| • | 20,720,722 shares of common stock issuable upon the exercise of warrants outstanding as of June 30, 2024, at a weighted average
exercise price of $0.3912 per share; |
| • | 3,192,347 shares of common stock issuable upon the exercise of pre-funded warrants outstanding as of June 30, 2024, at a weighted
average exercise price of $0.00005 per share; and |
| • | 521,163 shares of common stock reserved for future issuance under our equity incentive plans as of June 30, 2024. |
Unless otherwise stated, all information contained in this prospectus
assumes no exercise of stock options after June 30, 2024, and reflects an assumed public offering price of $0.3139 per share, which
was the last reported sale price of our common stock on The Nasdaq Capital Market August 27, 2024.
RISK
FACTORS
An investment in our common stock involves a
high degree of risk. Before you invest in our common stock, you should carefully consider the risk factors set forth below, those risk
factors related to us and our business described in “Item 1A. Risk Factors” in Part I of our most recent Annual Report
on Form 10-K, as amended, our most recent Quarterly Report on Form 10-Q, any subsequently filed Quarterly Reports on Form 10-Q
and any subsequently filed Current Reports on Form 8-K, which are incorporated herein by reference, and those risk factors that may
be included in any applicable prospectus supplement, together with all of the other information included in this prospectus, any accompanying
prospectus supplement and the documents we incorporate by reference, in evaluating an investment in our common stock. If any of the risks
discussed in the foregoing documents were to occur, our business, financial condition, results of operations and cash flows could be materially
adversely affected. Please read “Special Note Regarding Forward-Looking Statements.”
Risks Relating to this Offering and an Investment in Our Common
Stock
The
number of shares of our common stock available for future sale could adversely affect the market price of our common stock.
We
cannot predict whether future issuances of shares of our common stock or the availability of shares for resale in the open market will
decrease the market price per share of our common stock. We may sell shares of our common stock under this prospectus with an aggregate
gross offering price of up to $5,776,035. We may also sell additional shares of our common stock in the future under additional
prospectus supplements which will accompany this prospectus or in other offerings or other acquisitions we may undertake. Sales of substantial
amounts of shares of our common stock in the public market, or the perception that such sales might occur, could adversely affect the
market price of our common stock.
Our
management will have broad discretion as to the use of proceeds from this offering. You may not agree with the manner in which we use
the proceeds and our use of those proceeds may not yield a favorable return on investment.
We intend to use the net proceeds of this offering
to advance the Company’s clinical programs and for working capital and general corporate purposes. We have not designated the amount
of net proceeds we will use for any particular purpose and our management will retain broad discretion to allocate the net proceeds of
this offering. The net proceeds may be applied in ways with which some investors in this offering may not agree. Moreover, our management
may use the net proceeds for corporate purposes that may not increase our market value or make us more profitable. In addition, it may
take us some time to effectively deploy the net proceeds from this offering. Until the net proceeds are effectively deployed, our return
on equity and earnings per share may be negatively impacted. Management’s failure to use the net proceeds of this offering effectively
could have an adverse effect on our business, financial condition and results of operations.
We
may sell additional shares of common stock in the future which could result in dilution to our stockholders.
As
of July 31, 2024, a total of approximately 20.3 million authorized but unissued shares of our common stock are available for future
sale and issuance by action of our board of directors alone, including sales of up to $5,776,035 in value of shares of our common
stock under this prospectus. Accordingly, if we were to sell additional shares in the future, our stockholders could suffer dilution in
their investment in their shares of our common stock and in their percentage ownership of the Company.
We
may issue additional equity securities, or engage in other transactions which could dilute our book value or affect the priority of our
common stock, which may adversely affect the market price of our common stock.
Our board of directors may determine from time
to time to raise additional capital by issuing additional shares of our common stock or other securities. In addition, we may issue additional
securities in connection with future acquisitions we may make. We are not restricted from issuing additional shares of common stock, including
securities that are convertible into or exchangeable for, or that represent the right to receive, common stock. We cannot predict or estimate
the amount, timing, or nature of any future offerings or issuances of additional stock in connection with acquisitions, or the prices
at which such offerings may be affected. Such offerings could be dilutive to common stockholders. New investors also may have rights,
preferences and privileges that are senior to, and that adversely affect, our then-current common stockholders. Additionally, if we raise
additional capital by making additional offerings of debt or securities, upon liquidation of the Company, holders of our debt securities,
and lenders with respect to other borrowings, will receive distributions of our available assets prior to the holders of our common stock.
Additional equity offerings may dilute the holdings of our existing stockholders or reduce the market price of our common stock, or both.
Holders of our common stock are not entitled to preemptive rights or other protections against dilution.
If
securities or industry analysts do not publish research or publish inaccurate or unfavorable research about our business, our stock price
and trading volume could decline.
The trading market for our common stock will depend
in part on the research and reports that securities or industry analysts publish about us or our business. If one or more of the analysts
who cover us downgrade our stock or publish inaccurate or unfavorable research about our business, our stock price would likely decline.
If one or more of these analysts cease coverage of our company or fail to publish reports on us regularly, demand for our stock could
decrease, which might cause our stock price and trading volume to decline.
The
shares of our common stock offered under this prospectus and any accompanying supplement may be sold in “at-the-market” offerings,
and investors who buy shares at different times will likely pay different prices.
Investors who purchase shares under this prospectus
and any accompanying prospectus supplement at different times will likely pay different prices, and so may experience different outcomes
in their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold,
and to determine the minimum sales price for shares sold. Investors may experience declines in the value of their shares as a result of
share sales made in connection with “at-the-market” offerings at prices lower than the prices they paid.
The
actual number of shares we will issue under the distribution agreement, as amended, at any one time or in total, is uncertain.
Subject to certain limitations in the Distribution
Agreement, as amended, and compliance with applicable law, we and the Distribution Agent may mutually agree to sell shares of our common
stock under a transaction acceptance at any time throughout the term of the Distribution Agreement, as amended. The number of shares that
are sold by the Distribution Agent after agreement on the terms of the transaction acceptance will fluctuate based on the market price
of the shares of our common stock during the sales period and limits we set with the Distribution Agent. Because the price per share of
each share sold will fluctuate based on the market price of our shares of common stock during the sales period, it is not possible to
predict the number of shares that will ultimately be issued.
In addition, as of the date of this prospectus,
the aggregate market value of our outstanding common stock held by non-affiliates pursuant to General Instruction I.B.6 of Form S-3
is below $75 million. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities in public primary offerings
on Form S-3 with a value exceeding more than one-third of our public float (as defined by General Instruction I.B.6) in any 12 calendar
month period so long as our public float remains below $75.0 million.
We
do not anticipate paying any cash dividends on our common stock in the foreseeable future. As a result, you will need to sell your shares
of common stock to receive any income or realize a return on your investment.
To date, we have not paid any cash dividends on
our common stock. We do not anticipate paying any cash dividends on our common stock in the foreseeable future. We cannot assure you that
we would, at any time, generate sufficient surplus cash that would be available for distribution to the holders of our common stock as
a dividend.
CAUTIONARY
STATEMENT ON FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated
by reference in this prospectus include, and any prospectus supplement or free writing prospectus may contain, “forward-looking
statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E
of the Exchange Act. Any forward-looking statements presented in this prospectus, or which management may make orally or in writing from
time to time, are based on management’s beliefs and assumptions made by, and information currently available to, management. All
statements, other than statements of historical facts, contained or incorporated by reference in this prospectus are forward-looking statements.
In some cases you can identify such “forward-looking statements” by the use of words like “may,” “will,”
“should,” “could,” “expects,” “hopes,” “anticipates,” “believes,”
“intends,” “plans,” “projects,” “targets, ”goals,” “estimates,” “predicts,”
“likely,” “potential,” or “continue” or the negative of any of these terms or similar words. These
statements, descriptions, forecasts and projections constitute “forward-looking statements,” and as such involve known and
unknown risks, uncertainties, and other factors that may cause our actual results, levels of activity, performance and achievements to
be materially different from any results, levels of activity, performance and achievements expressed or implied by any such “forward-looking
statements.” These risks and uncertainties include, but are not limited to the potential consequences of The Nasdaq Stock Market’s
(the “Nasdaq”) notice of delisting on our investors, the Nasdaq notice of noncompliance with the minimum market value of listed
securities requirement, our reputation and business generally, whether we will be able to meet Nasdaq’s bid price listing requirement
in time for Nasdaq’s October 21, 2024 deadline, whether we will be able to meet Nasdaq’s minimum market value of $35
million in time for Nasdaq’s January 14, 2025 deadline, the outcomes of the derivative lawsuits filed by four of our shareholders,
the potential for more derivative lawsuits to be brought, our need to raise additional capital, our ability to continue as a going concern,
regulatory approval of our NurOwn® treatment candidate, the success of our product development programs and research, regulatory and
personnel issues, development of a global market for our services, the ability to secure and maintain research institutions to conduct
our clinical trials, the ability to generate significant revenue, the ability of our NurOwn® treatment candidate to achieve broader
acceptance as a treatment option for ALS, progressive multiple sclerosis (“PMS”), Alzheimer’s disease (“AD”)
or other neurodegenerative diseases, our ability to manufacture and commercialize our NurOwn® treatment candidate, obtaining patents
that provide meaningful protection, competition and market developments, our ability to protect our intellectual property from infringement
by third parties, heath reform legislation, demand for our services, currency exchange rates and product liability claims and litigation,
adverse developments affecting the financial services industry, political instability, unrest and wars, such as the conflicts involving
Ukraine and Russia and Israel and its surrounding regions, including our clinical development activities, and other factors described
under “Risk Factors” in this prospectus and elsewhere in our most recent Annual Report on Form 10-K, our subsequent Quarterly
Reports on Form 10-Q and our Current Reports on Form 8-K, and the section of any accompanying prospectus supplement entitled
“Risk Factors.”
Any forward-looking statements contained or incorporated
by reference in this prospectus reflect our current views with respect to future events or to our future financial performance and involve
known and unknown risks, uncertainties and other important factors that may cause our actual results, performance or achievements to be
materially different from any future results, performance or achievements expressed or implied by these forward-looking statements. See
“Risk Factors” for more information. Given these uncertainties, you should not place undue reliance on these forward-looking
statements. Our forward-looking statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint
ventures or investments we may make or enter into. Except as required by law, we assume no obligation to update or revise these forward-looking
statements for any reason, whether as a result of new information, future events or otherwise.
USE OF
PROCEEDS
We
may issue and sell shares of our common stock having aggregate sale proceeds of up to $5,776,035 from time to time. The amount
of proceeds from this offering will depend upon the number of shares of our common stock sold and the market price at which they are sold.
There can be no assurance that we will be able to sell any shares under or fully utilize the Distribution Agreement, as amended, with
the Distribution Agent as a source of financing. Because there is no minimum offering amount required as a condition to close this offering,
the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time.
We intend to use the net proceeds from the sale
of any securities offered under this prospectus for general corporate purposes unless the applicable prospectus supplement provides otherwise.
General corporate purposes may include research and development costs, sales and marketing costs, clinical studies, manufacturing development,
the acquisition or licensing of other businesses or technologies, repayment and refinancing of debt, working capital and capital expenditures.
We may temporarily invest the net proceeds in a variety of capital preservation instruments, including short-term, investment grade, interest
bearing instruments and U.S. government securities, until they are used for their stated purpose. We have not determined the amount of
net proceeds to be used specifically for such purposes. As a result, our management will retain broad discretion over the allocation of
net proceeds.
DIVIDEND
POLICY
We have never declared or paid cash dividends on
our capital stock. We intend to retain all of our future earnings, if any, to finance the growth and development of our business. We do
not intend to pay cash dividends to our stockholders in the foreseeable future.
DILUTION
If you invest in our common stock in this offering,
your ownership interest will be diluted to the extent of the difference between the public offering price per share of our common stock
in this offering and the as adjusted net tangible book value per share of our common stock immediately after this offering. The net tangible
book value of our common stock as of June 30, 2024, was approximately negative $3.5 million, or approximately $(0.0443) per share of common stock
based upon 79,646,942 shares outstanding. Net tangible book value per share is equal to our total tangible assets, less our total liabilities,
divided by the total number of shares of common stock outstanding as of June 30, 2024.
Net tangible book value dilution per share to investors
participating in this offering represents the difference between the amount per share paid by purchasers of shares of common stock in
this offering and the as adjusted net tangible book value per share of our common stock immediately after this offering. After giving
effect to the sale of 18,400,876 shares of common stock in this offering at an assumed public offering price of $0.3139 per share, the
last reported sale price of our common stock on The Nasdaq Capital Market on August 27, 2024, and after deducting sales commissions
and estimated offering expenses payable by us, our as adjusted net tangible book value as of June 30, 2024, would have been approximately
$1.8 million, or approximately $0.0182 per share of common stock. This represents an immediate increase in as adjusted net tangible book
value of $0.0625 per share to our existing stockholders and an immediate dilution in net tangible book value of $0.2706 per share to investors
participating in this offering at the assumed public offering price.
Dilution per share to new investors is determined
by subtracting as adjusted net tangible book value per share after this offering from the assumed public offering price per share paid
by new investors. The following table illustrates this per share dilution to new investors:
| Assumed public offering price per share | |
| | | |
$ | 0.3139 | |
| Historical net tangible book value per share as of June 30, 2024 | |
$ | (0.0443 | ) | |
| | |
| Increase in net tangible book value per share attributable to the offering | |
$ | 0.0625 | | |
| | |
| As adjusted net tangible book value per share after giving effect to this offering | |
| | | |
$ | 0.0182 | |
| Dilution in net tangible book value per share to investors participating in this offering | |
| | | |
$ | 0.2706 | |
The
table above assumes for illustrative purposes that an aggregate of $5,776,035 in shares of our common stock are sold at a price of
$0.3139 per share, the last reported sale price of our common stock on The Nasdaq Capital Market on August 27, 2024. The shares
sold in this offering, if any, will be sold from time to time at various prices. An increase of $0.10 per share in the price at
which the shares are sold from the assumed offering price of $0.3139 per share shown in the table above, assuming all of our common
stock in the aggregate amount of $5,776,035 is sold at that price, would result in an adjusted net tangible book value per
share after the offering to $0.0191 per share and would increase the dilution in net tangible book value per share to investors
participating in this offering to $0.3617 per share, after deducting sales commissions and estimated offering expenses payable by us. A
decrease of $0.10 per share in the price at which the shares are sold from the assumed offering price of $0.3139 per share shown in
the table above, assuming all of our common stock in the aggregate amount of $5,776,035 is sold at that price, would result in an
adjusted net tangible book value per share after the offering to $0.0168 per share and would decrease the dilution in net tangible book
value per share to investors participating in this offering to $0.1800 per share, after deducting sales commissions and estimated
offering expenses payable by us.
The information discussed above is illustrative
only and will adjust based on the actual price at which our shares of common stock are sold.
All information in this prospectus related to the
number of shares of our common stock to be outstanding immediately after this offering is based on 79,646,942 shares of our common stock
outstanding as of June 30, 2024. The number of shares outstanding as of June 30, 2024, excludes:
| · | 1,444,050 shares of common stock issuable upon the exercise of share options outstanding as of June 30, 2024, at a weighted average
exercise price of $2.6294 per share; |
| · | 20,720,722 shares of common stock issuable upon the exercise of warrants outstanding as of June 30, 2024, at a weighted average
exercise price of $0.3912 per share; |
| · | 3,192,347 shares of common stock issuable upon the exercise of pre-funded warrants outstanding as of June 30, 2024, at a weighted
average exercise price of $0.00005 per share; and |
| · | 521,163 shares of common stock reserved for future issuance under our equity incentive plans as of June 30, 2024. |
To the extent that any options are exercised, new
options are issued under our equity incentive plans or we otherwise issue additional shares of common stock in the future (including shares
issued in connection with acquisitions), there will be further dilution to new investors.
In addition, we may choose to raise additional
capital due to market conditions or strategic considerations, even if we believe we have sufficient funds for our current or future operating
plans. To the extent that additional capital is raised through the sale of equity or convertible debt securities, the issuance of these
securities could result in further dilution to our stockholders.
MATERIAL
U.S. FEDERAL INCOME TAX CONSIDERATIONS FOR NON-U.S. HOLDERS
The following discussion is a summary of certain
material U.S. federal income tax considerations applicable to non-U.S. holders (as defined below) with respect to their purchase, ownership
and disposition of shares of our common stock issued pursuant to this offering. For purposes of this discussion, a non-U.S. holder means
a beneficial owner of our common stock that is for U.S. federal income tax purposes:
| · | a non-resident alien individual; |
| · | a foreign corporation or any other foreign organization taxable as a corporation for U.S. federal income tax purposes; or |
| · | an estate or trust, the income of which is not subject to U.S. federal income tax on a net income basis and that (1) is not subject
to the primary supervision of a court within the United States or over which no U.S. persons have authority to control all substantial
decisions and (2) has not made an election to be treated as a U.S. person under applicable U.S. Treasury Regulations. |
This discussion does not address the tax treatment
of partnerships or other entities or arrangements that are treated as pass-through entities for U.S. federal income tax purposes (including
S-corporations) or persons that hold their common stock through partnerships or other pass-through entities. A partner in a partnership
or an investor in any other pass-through entity that will hold our common stock should consult his, her or its tax advisor regarding the
tax consequences of acquiring, holding and disposing of our common stock through a partnership or other pass-through entity, as applicable.
This discussion is based on current provisions
of the U.S. Internal Revenue Code of 1986, as amended, or the Code, existing and proposed U.S. Treasury Regulations promulgated thereunder,
current administrative rulings and judicial decisions, all as in effect as of the date of this prospectus and all of which are subject
to change or to differing interpretation, possibly with retroactive effect. Any such change or differing interpretation could alter the
tax consequences to non-U.S. holders described in this prospectus. There can be no assurance that the Internal Revenue Service, or the
IRS, will not challenge one or more of the tax consequences described herein. We assume in this discussion that each non-U.S. holder holds
shares of our common stock as a capital asset within the meaning of Section 1221 of the Code, which is generally property held for
investment.
This discussion does not address all aspects of
U.S. federal income taxation that may be relevant to a particular non-U.S. holder in light of that non-U.S. holder’s individual
circumstances nor does it address any U.S. state, local or non-U.S. tax considerations, the alternative minimum tax, the rules regarding
qualified small business stock within the meaning of Section 1202 of the Code, the Medicare tax on net investment income, any tax
treaties or any other aspect of any U.S. federal tax other than income taxes (including, for example, estate taxes). This discussion also
does not consider any specific facts or circumstances that may apply to a non-U.S. holder and does not address the special tax rules applicable
to particular non-U.S. holders, such as:
| · | tax-exempt or governmental organizations; |
| · | brokers or dealers in securities; |
| · | regulated investment companies; |
| · | “controlled foreign corporations,” “passive foreign investment companies,” and corporations that accumulate
earnings to avoid U.S. federal income tax; |
| · | “qualified foreign pension funds” as defined in Section 897(l)(2) of the Code and entities all of the interests
of which are held by qualified foreign pension funds; |
| · | partnerships or other entities or arrangements treated as partnerships for U.S. federal income tax purposes (and partners and investors
therein); |
| · | persons deemed to sell our common stock under the constructive sale provisions of the Code; |
| · | persons that hold our common stock as part of a straddle, hedge, conversion transaction, synthetic security or other integrated investment; |
| · | persons subject to special tax accounting rules as a result of any item of gross income with respect to our common stock being
taken into account in an applicable financial statement under Section 451(b) of the Code; |
| · | persons who have elected to mark securities to market; |
| · | persons who hold or receive our common stock pursuant to the exercise of any employee stock option or otherwise as compensation; and |
This discussion is for general information only
and is not tax advice. Accordingly, all prospective non-U.S. holders of our common stock should consult their tax advisors with respect
to the U.S. federal, state, local and non-U.S. tax consequences of the purchase, ownership and disposition of our common stock, including
the consequences of any proposed changes in appliable laws.
Distributions on Our Common Stock
As described in the “Dividend Policy”
section above, we do not intend to pay any cash dividends on our common stock in the foreseeable future. Distributions, if any, on our
common stock generally will constitute dividends for U.S. federal income tax purposes to the extent paid from our current or accumulated
earnings and profits, as determined under U.S. federal income tax principles. If a distribution exceeds our current and accumulated earnings
and profits, the excess will be treated as a tax-free return of the non-U.S. holder’s investment, up to such holder’s tax
basis in the common stock. Any remaining excess will be treated as capital gain, subject to the tax treatment described below in “-Gain
on Sale, Exchange or Other Taxable Disposition of Our Common Stock.” Any such distributions will also be subject to the discussions
below under the sections titled “-Backup Withholding and Information Reporting” and “-FATCA.”
Subject to the discussion in the following two
paragraphs in this section, dividends paid to a non-U.S. holder generally will be subject to withholding of U.S. federal income tax at
a 30% rate or such reduced rate specified by an applicable income tax treaty between the United States and such holder’s country
of residence. If we or the applicable withholding agent are unable to determine, at a time reasonably close to the date of payment of
a distribution on our common stock, what portion, if any, of the distribution will constitute a dividend, then we or the applicable withholding
agent may withhold U.S. federal income tax on the basis of assuming that the full amount of the distribution will be a dividend. If we
or another withholding agent apply over-withholding, a non-U.S. holder may be entitled to a refund or credit of any excess tax withheld
by timely filing an appropriate claim with the IRS.
Dividends that are treated as effectively connected
with a trade or business conducted by a non-U.S. holder within the United States and, if an applicable income tax treaty so provides,
that are attributable to a permanent establishment or a fixed base maintained by the non-U.S. holder within the United States, are generally
exempt from the 30% withholding tax if the non-U.S. holder satisfies applicable certification and disclosure requirements. To obtain this
exemption, a non-U.S. holder must generally provide us with a properly executed original IRS Form W- 8ECI (or applicable successor
form) properly certifying such exemption. However, such U.S. effectively connected income, net of specified deductions and credits, is
taxed at the same graduated U.S. federal income tax rates applicable to United States persons (as defined in the Code). Any U.S. effectively
connected income received by a non-U.S. holder that is a is classified as a corporation for U.S. federal income tax purposes may also,
under certain circumstances, be subject to an additional “branch profits tax” at a 30% rate or such reduced rate specified
by an applicable income tax treaty between the United States and such holder’s country of residence.
A non-U.S. holder of our common stock who claims
the benefit of an applicable income tax treaty between the United States and such holder’s country of residence generally will be
required to provide a properly executed IRS Form W-8BEN or W-8BEN-E (or other applicable or successor form) to the applicable withholding
agent and satisfy applicable certification and other requirements. Any documentation provided to an applicable withholding agent may need
to be updated in certain circumstances. The certification requirements described above may require a non-U.S. holder to provide its U.S.
taxpayer identification number. Non-U.S. holders are urged to consult their tax advisors regarding their entitlement to benefits under
a relevant income tax treaty. A non-U.S. holder that is eligible for a reduced rate of U.S. withholding tax under an income tax treaty
may obtain a refund or credit of any excess amounts withheld by timely filing an appropriate claim with the IRS.
Gain on Sale, Exchange or Other Taxable Disposition of Our Common
Stock
Subject to the discussions below under “-Backup
Withholding and Information Reporting” and “-FATCA,” a non-U.S. holder generally will not be subject to any U.S. federal
income or withholding tax on any gain realized upon such holder’s sale, exchange or other taxable disposition of shares of our common
stock unless:
| · | the gain is effectively connected with the non-U.S. holder’s conduct of a U.S. trade or business and, if an applicable income
tax treaty so provides, the gain is attributable to a permanent establishment or a fixed base maintained by such non-U.S. holder in the
United States, in which case the non-U.S. holder generally will be taxed on a net income basis at the graduated U.S. federal income tax
rates applicable to United States persons (as defined in the Code) with respect to the gain and, if the non-U.S. holder is a foreign corporation,
the branch profits tax described above in “-Distributions on Our Common Stock” also may apply with respect to such effectively
connected gain, as adjusted for certain items; |
| · | the non-U.S. holder is a nonresident alien individual who is present in the United States for a period or periods aggregating 183
days or more in the taxable year of the disposition and certain other conditions are met, in which case the non-U.S. holder will be subject
to a 30% tax (or such lower rate as may be specified by an applicable income tax treaty between the United States and such holder’s
country of residence) on the net gain derived from the disposition, which may be offset by certain U.S. source capital losses of the non-U.S.
holder, if any (even though the individual is not considered a resident of the United States), provided that the non-U.S. holder has timely
filed U.S. federal income tax returns with respect to such losses; or |
| · | we are, or have been, at any time during the five-year period preceding such sale, exchange or other taxable disposition (or the non-U.S.
holder’s holding period, if shorter) a “United States real property holding corporation” (as defined in the Code and
applicable Treasury Regulations), unless our common stock is “regularly traded,” as defined by applicable Treasury Regulations,
on an established securities market and the non-U.S. holder holds no more than 5% of our outstanding common stock, directly or indirectly,
actually or constructively, during the shorter of the 5-year period ending on the date of the disposition or the period that the non-U.S.
holder held our common stock. If we are or were a “United States real property holding corporation” during the relevant period
and the foregoing 5% exception does not apply, the non-U.S. holder generally will be taxed on its net gain derived from the disposition
at the graduated U.S. federal income tax rates applicable to United States persons (as defined in the Code and applicable Treasury Regulations).
If we are a ”United States real property holding corporation” and our common stock is not regularly traded on an established
securities market, a non-U.S. holder’s proceeds received on the disposition of shares will also generally be subject to withholding
at a rate of 15%. Generally, a corporation is a ”United States real property holding corporation” only if the fair market
value of its ”United States real property interests” (as defined in the Code) equals or exceeds 50% of the sum of the fair
market value of its worldwide real property interests plus its other assets used or held for use in a trade or business. Although there
can be no assurance, we do not believe that we are, or have been, a ”United States real property holding corporation” for
U.S. federal income tax purposes, or that we are likely to become one in the future. No assurance can be provided that our common stock
will be regularly traded on an established securities market for purposes of the rules described above. Non-U.S. holders should consult
their tax advisors with respect to the application of the foregoing rules to their ownership and disposition of our common stock. |
Backup Withholding and Information Reporting
We (or the applicable paying agent) must report
annually to the IRS and to each non-U.S. holder the gross amount of the distributions on our common stock paid to such holder and the
tax withheld, if any, with respect to such distributions, regardless of whether any tax was actually withheld. Non-U.S. holders may have
to comply with specific certification procedures to establish that the holder is not a “United States person” (as defined
in Section 7701(a)(30) of the Code) in order to avoid backup withholding at the applicable rate with respect to dividends on our
common stock. Dividends paid to non-U.S. holders subject to withholding of U.S. federal income tax, as described above in “-Distributions
on Our Common Stock,” generally will be exempt from U.S. backup withholding if the non-U.S. holders establish an exemption by properly
certifying their non-U.S. status on an IRS Form W-8BEN or W-8BEN-E (or other applicable or successor form).
Information reporting and backup withholding will
generally apply to the proceeds of a disposition of our common stock by a non-U.S. holder effected by or through the U.S. office of any
broker, U.S. or foreign, unless the holder certifies its status as a non-U.S. holder and satisfies certain other requirements, or otherwise
establishes an exemption. Generally, information reporting and backup withholding will not apply to a payment of disposition proceeds
to a non-U.S. holder where the transaction is effected outside the United States through a non-U.S. office of a broker. However, for information
reporting purposes, dispositions effected through a non-U.S. office of a broker with substantial U.S. ownership or operations generally
will be treated in a manner similar to dispositions effected through a U.S. office of a broker. Non-U.S. holders should consult their
tax advisors regarding the application of the information reporting and backup withholding rules to them. Copies of information returns
may be made available to the tax authorities of the country in which the non-U.S. holder resides or is incorporated under the provisions
of a specific treaty or agreement. Any documentation provided to an applicable withholding agent may need to be updated in certain circumstances.
Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules from a payment to a non-U.S.
holder can be refunded or credited against the non-U.S. holder’s U.S. federal income tax liability, if any, provided that an appropriate
claim is filed with the IRS in a timely manner.
FATCA
The Foreign Account Tax Compliance Act, or FATCA,
generally imposes a U.S. federal withholding tax at a rate of 30% on payments of dividends on, or subject to the discussion of certain
proposed U.S. Treasury regulations below, gross proceeds from the sale or other disposition of, our common stock paid to a foreign entity
unless (i) if the foreign entity is a “foreign financial institution,” such foreign entity undertakes certain due diligence,
reporting, withholding, and certification obligations, (ii) if the foreign entity is not a “foreign financial institution,”
such foreign entity either certifies it does not have any substantial U.S. owners or furnishes identifying information regarding each
substantial U.S. owner and such entity meets certain other specified requirements, or (iii) the foreign entity is otherwise exempt
under FATCA. However, proposed regulations, if finalized in their present form, would eliminate the federal withholding tax of 30% applicable
to the gross proceeds of a sale or other disposition of our common stock. Taxpayers (including withholding agents) are permitted to rely
on the proposed regulations until final regulations are issued. Under certain circumstances, a non-U.S. holder may be eligible for refunds
or credits of this withholding tax. An intergovernmental agreement between the United States and an applicable foreign country may modify
the requirements described in this paragraph. Non-U.S. holders should consult their tax advisors regarding the possible implications of
this legislation on their investment in our common stock and the entities through which they hold our common stock, including, without
limitation, the process and deadlines for meeting the applicable requirements to prevent the imposition of the 30% withholding tax under
FATCA.
PLAN
OF DISTRIBUTION
Pursuant
to the Distribution Agreement, as amended, and this prospectus, we may issue and sell from time to time up to $5,776,035 of our
common stock through Raymond James & Associates, Inc. as our distribution agent. Sales of our common stock, if any, will
be made at market prices by any method that is deemed to be an “at the market offering” as defined in Rule 415(a)(4) under
the Securities Act, including sales made directly on Nasdaq or any other trading market for our common stock. If authorized by us in writing,
the Distribution Agent may purchase shares of our common stock as principal.
The Distribution Agent will offer our common stock
subject to the terms and conditions of the Distribution Agreement, as amended, on a daily basis or as otherwise agreed upon by us and
the Distribution Agent. We will designate the maximum amount of common stock to be sold through the Distribution Agent on a daily basis
or otherwise determine such maximum amount together with the Distribution Agent. Subject to the terms and conditions of the Distribution
Agreement, as amended, the Distribution Agent will use their commercially reasonable efforts to sell on our behalf all of the shares of
common stock requested to be sold by us. We may instruct the Distribution Agent not to sell common stock if the sales cannot be effected
at or above the price designated by us in any such instruction. The Distribution Agent or we may suspend the offering of our common stock
being made through the Distribution Agent under the Distribution Agreement, as amended, upon proper notice to the other party. The Distribution
Agent and we each have the right, by giving written notice as specified in the Distribution Agreement, as amended, to terminate the Distribution
Agreement, as amended, in each party’s sole discretion at any time.
The aggregate compensation payable to the Distribution
Agent as distribution agent is equal to 3% of the gross sales price of the shares sold through them pursuant to the Distribution Agreement,
as amended. In addition, we have agreed to reimburse the Distribution Agent for fees and disbursements, including related to its legal
counsel in an amount not to exceed $50,000 as provided in the Distribution Agreement, as amended.
The remaining sales proceeds, after deducting any
expenses payable by us and any transaction fees imposed by any governmental, regulatory, or self-regulatory organization in connection
with the sales, will equal our net proceeds for the sale of such common stock.
The Distribution Agent will provide written confirmation
to us no later than the opening of the trading day immediately after each day of trading on Nasdaq in which common stock is sold through
it as distribution agent under the Distribution Agreement, as amended. Each confirmation will include the number of shares of common stock
sold through them as distribution agent on that day, the volume weighted average price of the shares sold, and the net proceeds to us.
We will report at least quarterly the number of
shares of common stock sold through the Distribution Agent under the Distribution Agreement, as amended, the gross and net proceeds to
us and the compensation paid by us to the Distribution Agent in connection with the sales of common stock.
Settlement for sales of common stock will occur,
unless the parties agree otherwise or otherwise required by law, on the first business day that is also a trading day following the date
on which any sales were made in return for payment of the net proceeds to us. There is no arrangement for funds to be received in an escrow,
trust or similar arrangement.
In connection with the sales of our common stock
on our behalf, the Distribution Agent may be deemed to be an “underwriter” within the meaning of the Securities Act, and the
compensation paid to the Distribution Agent may be deemed to be underwriting commissions or discounts. We have agreed in the Distribution
Agreement, as amended, to provide indemnification and contribution to the Distribution Agent against certain liabilities, including liabilities
under the Securities Act. As distribution agent, the Distribution Agent will not engage in any transactions that stabilizes our common
stock.
Our common stock is listed on The Nasdaq Capital
Market and trades under the symbol “BCLI.” The transfer agent of our common stock is Equiniti Trust Company, LLC.
The Distribution Agent 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 in connection with this offering
and the validity of the securities offered by this prospectus will be passed upon for us by Goodwin Procter LLP, Boston, MA. Raymond James &
Associates, Inc. is being represented in connection with this offering by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., New
York, N.Y.
EXPERTS
The consolidated financial statements of Brainstorm
Cell Therapeutics Inc. as of December 31, 2022 and 2023 and for each of the years in the two-year period ended December 31,
2023 incorporated in this Prospectus by reference from the Brainstorm Cell Therapeutics Inc. have been audited by Brightman Almagor Zohar &
Co., a Firm in the Deloitte Global Network, an independent registered public accounting firm, as stated in their report thereon, incorporated
herein by reference, and have been incorporated in this prospectus and registration statement in reliance upon such report and upon the
authority of such firms experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s
website at www.sec.gov. Copies of certain information filed by us with the SEC are also available on our website at www.brainstorm-cell.com.
Our website is not a part of this prospectus and is not incorporated by reference in this prospectus.
This prospectus is part of a registration statement
we filed with the SEC. This prospectus omits some information contained in the registration statement in accordance with SEC rules and
regulations. You should review the information and exhibits in the registration statement for further information on us and the securities
we are offering. Statements in this prospectus concerning any document we filed as an exhibit to the registration statement or that we
otherwise filed with the SEC are not intended to be comprehensive and are qualified by reference to these filings. You should review the
complete document to evaluate these statements. You can obtain a copy of the registration statement from the SEC at the address listed
above or from the SEC’s website.
INCORPORATION
BY REFERENCE
The SEC allows us to incorporate by reference the
information and reports we file with it, which means that we can disclose important information to you by referring you to these documents.
The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will
automatically update and supersede the information already incorporated by reference. We are incorporating by reference the documents
listed below, which we have already filed with the SEC, and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act, except as to any portion of any future report or document that is not deemed filed under such provision,
including all filings made between the date of this prospectus and the effectiveness of the registration statement and following the effectiveness
of the registration statement until the termination or completion of this offering:
| · | Quarterly Reports on Form 10-Q for the quarters ended March 31, 2024, and June 30, 2024, which were filed with
the SEC on May 14,
2024, and August 14, 2024, respectively; |
| · | Current Reports on Form 8-K filed on April 2, 2024, April 9, 2024, April 11, 2024, April 17, 2024, May 3, 2024, June 4, 2024, June 20, 2024, June 26,2024, June 28, 2024, July 19, 2024 and July 30, 2024; and |
We incorporate by reference any future filings
made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act between the date of this prospectus and the termination
of the offering.
Notwithstanding the foregoing, unless specifically
stated to the contrary, information that we furnish (and that is not deemed “filed” with the SEC) under Items 2.02 and 7.01
of any Current Report on Form 8-K, including the related exhibits under Item 9.01, is not incorporated by reference into this prospectus
or the registration statement of which this prospectus is a part.
Any statement contained in a document that is incorporated
by reference will be modified or superseded for all purposes to the extent that a statement contained in this prospectus, or in any other
document that is subsequently filed with the SEC and incorporated by reference into this prospectus, modifies or is contrary to that previous
statement. Any statement so modified or superseded will not be deemed a part of this prospectus, except as so modified or superseded.
Since information that we later file with the SEC will update and supersede previously incorporated information, you should look at all
of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any documents previously
incorporated by reference have been modified or superseded.
Upon request, we will provide, without charge,
to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, a copy of the documents incorporated by
reference into this prospectus but not delivered therewith. You may request a copy of these filings, and any exhibits we have specifically
incorporated by reference as an exhibit in this prospectus, at no cost by writing or telephoning us at the following address: Brainstorm
Cell Therapeutics Inc. 1325 Avenue of Americas, 28th Floor, New York, NY 10019, Attention: Chief Executive Officer; telephone: (201) 488-0460.
You may also access these documents, free of charge
on the SEC’s website at www.sec.gov or on our website at www.brainstorm-cell.com. Information contained on our website
is not incorporated by reference into this prospectus and you should not consider any information on, or that can be accessed from, our
website as part of this prospectus.
This prospectus is part of a registration statement
we filed with the SEC. We have incorporated exhibits into this registration statement. You should read the exhibits carefully for provisions
that may be important to you. You should rely only on the information incorporated by reference or provided in this prospectus. We have
not authorized anyone to provide you with different information. We are not making an offer of these securities in any state where the
offer is not permitted. You should not assume that the information in this prospectus or in the documents incorporated by reference is
accurate as of any date other than the date on the front of this prospectus or those documents.
BRAINSTORM CELL THERAPEUTICS INC.
Up to $5,776,035
Common Stock
Raymond James
, 2024
PROSPECTUS
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Set forth below is an estimate (except in the
case of the SEC registration fee) of the amount of fees and expenses to be incurred in connection with the issuance and distribution
of the offered securities, other than underwriting discounts and commissions.
| SEC registration fee | |
| $ |
6,643.61# | |
| Accounting fees and expenses | |
| * | |
| Legal fees and expenses | |
| * | |
| Transfer agent’s, trustee’s and depositary’s fees and expenses | |
| * | |
| Printing fees and expenses | |
| * | |
| Miscellaneous | |
| * | |
| Total | |
| $ |
* | |
| # | This registration statement includes our securities in aggregate
principal amount of $172,561,230 that have previously been registered under our registration
statement on Form S-3 (File No. 333-258640) initially filed on August 9, 2021 (“Prior
Registration Statement”) and remain unsold. We previously paid a filing fee of $18,826.43 in connection with the registration of such unsold securities under Prior Registration Statement.
Pursuant to Rule 457(p), the filing fee of $18,826.43 in connection with such unsold securities is used to offset against the total filing
fee due for this registration statement. |
| * | These fees and expenses are calculated based on the securities offered
and the number of issuances and distributions of the offered securities and, accordingly,
cannot be estimated at this time. |
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation
Law, or the DGCL, authorizes a corporation to indemnify its directors and officers against liabilities arising out of actions, suits
and proceedings to which they are made or threatened to be made a party by reason of the fact that they have served or are currently
serving as a director or officer to a corporation. The indemnity may cover expenses (including attorneys’ fees) judgments, fines
and amounts paid in settlement actually and reasonably incurred by the director or officer in connection with any such action, suit or
proceeding. Section 145 permits corporations to pay expenses (including attorneys’ fees) incurred by directors and officers in
advance of the final disposition of such action, suit or proceeding. In addition, Section 145 provides that a corporation has the power
to purchase and maintain insurance on behalf of its directors and officers against any liability asserted against them and incurred by
them in their capacity as a director or officer, or arising out of their status as such, whether or not the corporation would have the
power to indemnify the director or officer against such liability under Section 145.
We have adopted provisions in our certificate
of incorporation and bylaws that limit or eliminate the personal liability of our directors to the fullest extent permitted by the DGCL,
as it now exists or may in the future be amended. Consequently, a director are not personally liable to us or our stockholders for monetary
damages or breach of fiduciary duty as a director, except for liability for:
| · | any breach of the
director’s duty of loyalty to us or our stockholders; |
| · | any act or omission
not in good faith or that involves intentional misconduct or a knowing violation of law |
| · | any unlawful payments
related to dividends or unlawful stock purchases, redemptions or other distributions; or |
| · | any transaction from
which the director derived an improper personal benefit. |
These limitations of liability do not alter director
liability under the federal securities laws and do not affect the availability of equitable remedies such as an injunction or rescission.
In addition, our bylaws provide that:
| · | we will indemnify
our directors, officers and, in the discretion of our board of directors, certain employees
to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended;
and |
| · | we will advance reasonable
expenses, including attorneys’ fees, to our directors and, in the discretion of our
board of directors, to our officers and certain employees, in connection with legal proceedings
relating to their service for or on behalf of us, subject to limited exceptions. |
We have entered into indemnification agreements
with each of our directors and executive officers. These agreements provide that we will indemnify each of our directors, certain of
our executive officers and, at times, their affiliates to the fullest extent permitted by Delaware law. We will advance expenses, including
attorneys’ fees (but excluding judgments, fines and settlement amounts), to each indemnified director or executive officer in connection
with any proceeding in which indemnification is available and we will indemnify our directors and officers for any action or proceeding
arising out of that person’s services as a director or officer brought on behalf of us or in furtherance of our rights. Additionally,
certain of our directors or officers may have certain rights to indemnification, advancement of expenses or insurance provided by their
affiliates or other third parties, which indemnification relates to and might apply to the same proceedings arising out of such director’s
or officer’s services as a director referenced herein. Nonetheless, we have agreed in the indemnification agreements that our obligations
to those same directors or officers are primary and any obligation of such affiliates or other third parties to advance expenses or to
provide indemnification for the expenses or liabilities incurred by those directors are secondary.
We also maintain general liability insurance
which covers certain liabilities of our directors and officers arising out of claims based on acts or omissions in their capacities as
directors or officers, including liabilities under the Securities Act.
Item 16. Exhibits.
The exhibits to this Registration Statement are
listed in the exhibit index, which appears elsewhere herein and is incorporated herein by reference.
| Exhibit No. |
|
Exhibit Index |
| |
|
|
| 1.1* |
|
Form of Underwriting Agreement |
| 1.2 |
|
Distribution Agreement, dated as of August 9, 2021 by and among Brainstorm Cell Therapeutics Inc. and SVB Leerink LLC and Raymond James
& Associates, Inc. (incorporated by reference to the Exhibit 1.2 to the Registrant's Registration Statement S-3 (File No. 001-36641)
filed on August 9, 2021) |
| 1.3 |
|
Amendment No. 1 dated April 2, 2024 to the Distribution Agreement dated as of August 9, 2024 by and among Brainstorm Cell Therapeutics
Inc., Leerink Partners LLC and Raymond James & Associates, Inc. (incorporated by reference to Exhibit 1.1 to the Registrant's Current
Report on Form 8-K (File No. 001-36641) filed on April 2, 2024) |
| 3.1 |
|
Certificate of Incorporation of
Brainstorm Cell Therapeutics Inc. (incorporated by reference to the Appendix A to the Registrant’s Definitive Schedule 14A
(File No. 333-61610) filed on November 20, 2006) |
| 3.2 |
|
Certificate of Amendment of Certificate
of Incorporation of Brainstorm Cell Therapeutics Inc. dated September 15, 2014 (incorporated by reference to the Exhibit 3.1 to the
Registrant’s Current Report on Form 8-K (File No. 000-54365) filed on September 16, 2014) |
| 3.3 |
|
Certificate of Amendment of Certificate
of Incorporation of Brainstorm Cell Therapeutics Inc. dated August 31, 2015 (incorporated by reference to the Exhibit 3.1 to the
Registrant’s Current Report on Form 8-K (File No. 001-366641) filed on September 4, 2015) |
| 3.4 |
|
ByLaws of Brainstorm Cell Therapeutics
Inc. (incorporated by reference to the Appendix C to the Registrant’s Definitive Schedule 14A (File No. 333-61610) filed
on November 20, 2006) |
| 3.5 |
|
Amendment No. 1 to ByLaws of Brainstorm
Cell Therapeutics Inc., dated as of March 21, 2007 (incorporated by reference to the Exhibit 3.1 to the Registrant’s Current
Report on Form 8-K (File No. 333-61610) filed on March 27, 2007) |
| 4.1 |
|
Specimen certificate evidencing
shares of common stock (incorporated by reference to the Exhibit 4.1 to the Registrant’s Current Report on Form 8-K (File No.
000-54365) filed on September 16, 2014) |
| 4.2 |
|
Form of Senior Indenture (including Form of Senior Note) |
| 4.3 |
|
Form of Subordinated Indenture (including Form of Subordinated Note) |
| 4.4* |
|
Form of Warrant Agreement |
| 4.5* |
|
Form of Unit Agreement |
| 5.1 |
|
Opinion of Goodwin Procter LLP |
| 5.2 |
|
Opinion of Goodwin Procter LLP relating to distribution agreement prospectus |
| 23.1 |
|
Consent of Brightman Almagor Zohar & Co., a Firm in the Deloitte Global Network, independent
registered public accounting firm for the Registrant |
| 23.2 |
|
Consent of Goodwin Procter LLP (included in Exhibit 5.1) |
| 23.3 |
|
Consent of Goodwin Procter LLP (included in Exhibit 5.2) |
| 24.1 |
|
Powers of Attorney (included in the signature pages hereto) |
| 25.1** |
|
The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Senior Indenture |
| 25.2** |
|
The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Subordinated
Indenture |
| 107 |
|
Filing Fee Table |
| * | To be filed, if necessary, subsequent to the effectiveness of this registration
by an amendment to this registration statement or incorporation by reference pursuant to
a Current Report on Form 8-K in connection with an offering of securities. |
| ** | To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of
1939, as amended. |
Item 17. Undertakings.
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; |
| (ii) | to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in this Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price set forth in
the “Calculation of Registration Fee” table in the effective registration statement;
and |
| (iii) | to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any material change
to such information in this Registration Statement; provided, however, that paragraphs (i),
(ii) and (iii) of this section do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in reports filed with or furnished
to the Securities and Exchange Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
that are incorporated by reference in this Registration Statement, or is contained in a form
of prospectus filed pursuant to Rule 424(b) that is part of this Registration Statement. |
| (2) | That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of the offering. |
| (4) | That, for the purpose of determining liability under the Securities
Act to any purchaser: |
| (i) | 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 |
| (ii) | each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to
an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing
the information required by Section 10(a) of the Securities Act shall be deemed to be part
of and included in the registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such date shall
be deemed to be a new effective date of the registration statement relating to the securities
in the registration statement to which that prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed incorporated by reference
in the registration statement or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such effective date, supersede
or modify any statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately prior to such
effective date. |
| (5) | That, for the purpose of determining liability of a Registrant under
the Securities Act to any purchaser in the initial distribution of the securities, the undersigned
Registrant undertakes that in a primary offering of securities of the undersigned Registrant
pursuant to this registration statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered or sold to such purchaser
by means of any of the following communications, the undersigned Registrant will be a seller
to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (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. |
| (6) | That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d)
of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in this registration statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. |
| (7) | Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the Registrant pursuant
to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by a Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the final adjudication
of such issue. |
| (8) | To file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act of 1939
in accordance with the rules and regulations prescribed by the Securities and Exchange Commission
under Section 305(b)(2) of the Trust Indenture Act of 1939. |
| (9) | That, for purposes
of determining any liability under the Securities Act, the information omitted from the form
of prospectus filed as part of the registration statement in reliance upon Rule 430A and
contained in the form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of the registration
statement as of the time it was declared effective. |
| (10) | For the purpose of
determining any liability under the Securities Act, each post-effective amendment that contains
a form of prospectus 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. |
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of New York, State of New York, on this 28th day of August, 2024.
| |
BRAINSTORM CELL THERAPEUTICS INC. |
| |
|
| |
By: |
/s/ Chaim Lebovits |
| |
|
Chaim Lebovits |
| |
|
Chief Executive Officer |
| |
|
(Principal Executive Officer) |
SIGNATURES
AND POWER OF ATTORNEY
We, the undersigned officers and directors of
Brainstorm Cell Therapeutics Inc. hereby severally constitute and appoint Chaim Lebovits, our true and lawful attorney with full power
to sign for us and in our names in the capacities indicated below the Registration Statement on Form S-3 filed herewith and any and all
amendments (including post-effective amendments) to said Registration Statement, and any registration statement filed pursuant to Rule
462 under the Securities Act of 1933, as amended, in connection with said Registration Statement, and to file or cause to be filed the
same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, and generally
to do all such things in our name and on our behalf in our capacities as officers and directors to enable Brainstorm Cell Therapeutics
Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission,
hereby ratifying and confirming said attorney, or his substitute or substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
|
Title(s) |
|
Date |
| |
|
|
|
|
| /s/ Chaim Lebovits |
|
Chief Executive Officer (Principal Executive Officer) |
|
August 28, 2024 |
| Chaim Lebovits |
|
|
|
|
| |
|
|
|
|
| /s/ Alla Patlis |
|
Interim Chief Financial Officer (Principal Financial and Accounting Officer) |
|
August 28, 2024 |
| Alla Patlis |
|
|
|
|
| |
|
|
|
|
| /s/ Irit Arbel |
|
Director |
|
August 28, 2024 |
| Irit Arbel |
|
|
|
|
| |
|
|
|
|
| /s/ Menghisteab Bairu |
|
Director |
|
August 28, 2024 |
| Menghisteab Bairu |
|
|
|
|
| |
|
|
|
|
| /s/ Jacob Frenkel |
|
Director |
|
August 28, 2024 |
| Jacob Frenkel |
|
|
|
|
| |
|
|
|
|
| /s/ Anthony Polverino |
|
Director |
|
August 28, 2024 |
| Anthony Polverino |
|
|
|
|
| |
|
|
|
|
| /s/ Nir Naor |
|
Director |
|
August 28, 2024 |
| Nir Naor |
|
|
|
|
| |
|
|
|
|
| /s/ Uri Yablonka |
|
Director |
|
August 28, 2024 |
| Uri Yablonka |
|
|
|
|
| |
|
|
|
|
| /s/ Stacy Lindborg |
|
Director |
|
August 28, 2024 |
| Stacy Lindborg |
|
|
|
|
Exhibit 4.2
BRAINSTORM CELL THERAPEUTICS INC.,
Issuer
AND
[TRUSTEE],
Trustee
INDENTURE
Dated as of [●], 202[●]
Senior Debt Securities
TABLE OF CONTENTS1
Page
| ARTICLE 1 |
DEFINITIONS |
1 |
| |
| |
|
|
| Section 1.01 | |
Definitions of Terms. |
1 |
| |
| |
|
|
| ARTICLE 2 |
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
4 |
| |
| |
|
|
| Section 2.01 | |
Designation and Terms of Securities. |
4 |
| Section 2.02 | |
Form of Securities and Trustee’s
Certificate. |
6 |
| Section 2.03 | |
Denominations: Provisions for
Payment. |
6 |
| Section 2.04 | |
Execution and Authentications. |
7 |
| Section 2.05 | |
Registration of Transfer and
Exchange. |
8 |
| Section 2.06 | |
Temporary Securities. |
9 |
| Section 2.07 | |
Mutilated, Destroyed, Lost or
Stolen Securities. |
9 |
| Section 2.08 | |
Cancellation. |
10 |
| Section 2.09 | |
Benefits of Indenture. |
10 |
| Section 2.10 | |
Authenticating Agent. |
10 |
| Section 2.11 | |
Global Securities. |
11 |
| |
| |
|
|
| ARTICLE 3 |
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
11 |
| |
| |
|
|
| Section 3.01 | |
Redemption. |
11 |
| Section 3.02 | |
Notice of Redemption. |
11 |
| Section 3.03 | |
Payment Upon Redemption. |
12 |
| Section 3.04 | |
Sinking Fund. |
13 |
| Section 3.05 | |
Satisfaction of Sinking Fund
Payments with Securities. |
13 |
| Section 3.06 | |
Redemption of Securities for
Sinking Fund. |
13 |
| |
| |
|
|
| ARTICLE 4 |
COVENANTS |
13 |
| |
| |
|
|
| Section 4.01 | |
Payment of Principal, Premium
and Interest. |
13 |
| Section 4.02 | |
Maintenance of Office or Agency. |
14 |
| Section 4.03 | |
Paying Agents. |
14 |
| Section 4.04 | |
Appointment to Fill Vacancy
in Office of Trustee. |
15 |
| Section 4.05 | |
Compliance with Consolidation
Provisions. |
15 |
| | |
|
|
| ARTICLE 5 |
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
15 |
| |
| |
|
|
| Section 5.01 | |
Company to Furnish Trustee Names
and Addresses of Securityholders. |
15 |
| Section 5.02 | |
Preservation Of Information;
Communications With Securityholders. |
15 |
| Section 5.03 | |
Reports by the Company. |
16 |
| Section 5.04 | |
Reports by the Trustee. |
16 |
| |
| |
|
|
| ARTICLE 6 |
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
16 |
| |
| |
|
|
| Section 6.01 | |
Events of Default. |
16 |
| Section 6.02 | |
Collection of Indebtedness and
Suits for Enforcement by Trustee. |
18 |
| Section 6.03 |
|
Application of Moneys Collected. |
19 |
| Section 6.04 | |
Limitation on Suits. |
19 |
| Section 6.05 | |
Rights and Remedies Cumulative;
Delay or Omission Not Waiver. |
19 |
| Section 6.06 | |
Control by Securityholders. |
20 |
| Section 6.07 | |
Undertaking to Pay Costs. |
20 |
| |
| |
|
|
1 This Table of Contents does not constitute part of the Indenture and shall not
have any bearing on the interpretation of any of its terms or provisions.
Table of Contents
(continued)
| |
|
Page |
| |
|
|
| ARTICLE 7 |
CONCERNING THE TRUSTEE |
20 |
| |
| |
|
|
| Section 7.01 | |
Certain Duties and Responsibilities
of Trustee. |
20 |
| Section 7.02 | |
Certain Rights of Trustee. |
21 |
| Section 7.03 | |
Trustee Not Responsible for
Recitals or Issuance or Securities. |
22 |
| Section 7.04 | |
May Hold Securities. |
23 |
| Section 7.05 | |
Moneys Held in Trust. |
23 |
| Section 7.06 | |
Compensation and Reimbursement. |
23 |
| Section 7.07 | |
Reliance on Officer’s
Certificate or Opinion of Counsel. |
24 |
| Section 7.08 | |
Disqualification; Conflicting
Interests. |
24 |
| Section 7.09 | |
Corporate Trustee Required;
Eligibility. |
24 |
| Section 7.10 | |
Resignation and Removal; Appointment
of Successor. |
24 |
| Section 7.11 | |
Acceptance of Appointment By
Successor. |
25 |
| Section 7.12 | |
Merger, Conversion, Consolidation
or Succession to Business. |
26 |
| Section 7.13 | |
Preferential Collection of Claims
Against the Company. |
26 |
| Section 7.14 | |
Notice of Default. |
26 |
| |
| |
|
|
| ARTICLE 8 |
CONCERNING THE SECURITYHOLDERS |
27 |
| |
| |
|
|
| Section 8.01 | |
Evidence of Action by Securityholders. |
27 |
| Section 8.02 | |
Proof of Execution by Securityholders. |
27 |
| Section 8.03 | |
Who May be Deemed Owners. |
27 |
| Section 8.04 | |
Certain Securities Owned by
Company Disregarded. |
27 |
| Section 8.05 | |
Actions Binding on Future Securityholders. |
28 |
| |
| |
|
|
| ARTICLE 9 |
SUPPLEMENTAL INDENTURES |
28 |
| |
| |
|
|
| Section 9.01 | |
Supplemental Indentures Without
the Consent of Securityholders. |
28 |
| Section 9.02 | |
Supplemental Indentures With
Consent of Securityholders. |
29 |
| Section 9.03 | |
Effect of Supplemental Indentures. |
29 |
| Section 9.04 | |
Securities Affected by Supplemental
Indentures. |
29 |
| Section 9.05 | |
Execution of Supplemental Indentures. |
30 |
| |
| |
|
|
| ARTICLE 10 |
SUCCESSOR ENTITY |
30 |
| |
| |
|
|
| Section 10.01 | |
Company May Consolidate, Etc. |
30 |
| Section 10.02 | |
Successor Entity Substituted. |
30 |
| |
| |
|
|
| ARTICLE 11 |
SATISFACTION AND DISCHARGE |
31 |
| |
| |
|
|
| Section 11.01 | |
Satisfaction and Discharge of
Indenture. |
31 |
| Section 11.02 | |
Discharge of Obligations. |
31 |
| Section 11.03 | |
Deposited Moneys to be Held
in Trust. |
32 |
| Section 11.04 | |
Payment of Moneys Held by Paying
Agents. |
32 |
| Section 11.05 | |
Repayment to Company. |
32 |
| |
| |
|
|
| ARTICLE 12 |
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
32 |
| |
| |
|
|
| Section 12.01 | |
No Recourse. |
32 |
| |
| |
|
|
| ARTICLE 13 |
MISCELLANEOUS PROVISIONS |
32 |
| |
| |
|
|
| Section 13.01 | |
Effect on Successors and Assigns. |
32 |
| Section 13.02 | |
Actions by Successor. |
33 |
| Section 13.03 | |
Surrender of Company Powers. |
33 |
| Section 13.04 | |
Notices. |
33 |
| Section 13.05 | |
Governing Law; Jury Trial Waiver. |
33 |
| Section 13.06 | |
Treatment of Securities as Debt. |
33 |
| | |
|
|
Table of Contents
(continued)
Page
| Section 13.07 |
|
Certificates and Opinions as to Conditions Precedent. |
33 |
| Section 13.08 |
|
Payments on Business Days. |
34 |
| Section 13.09 |
|
Conflict with Trust Indenture Act. |
34 |
| Section 13.10 |
|
Counterparts. |
34 |
| Section 13.11 |
|
Separability. |
34 |
| Section 13.12 |
|
Compliance Certificates. |
34 |
| Section 13.13 |
|
USA PATRIOT ACT. |
34 |
| Section 13.14 |
|
Calculations. |
35 |
INDENTURE
INDENTURE, dated as
of [●], 202[●], among BRAINSTORM CELL THERAPEUTICS INC., a Delaware corporation (the “Company”),
and [TRUSTEE] as trustee (the “Trustee”):
WHEREAS, for its lawful
corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of debt securities
(hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued from time to
time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated by the certificate
of the Trustee;
WHEREAS, to provide
the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all things
necessary to make this Indenture a valid and binding agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in
consideration of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows
for the equal and ratable benefit of the holders of Securities:
ARTICLE
1
DEFINITIONS
Section
1.01 Definitions of Terms.
The terms defined in this
Section (except as in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in
this Section and shall include the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein
or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned
to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution of this instrument.
“Authenticating
Agent” means an authenticating agent with respect to all or any of the series of Securities appointed by the Trustee pursuant
to Section 2.10.
“Bankruptcy Law”
means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board of Directors”
means the Board of Directors (or the functional equivalent thereof) of the Company or any duly authorized committee of such Board.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such certification and delivered to the Trustee.
“Business Day”
means, with respect to any series of Securities, any day other than a day on which federal or state banking institutions in the Borough
of Manhattan, the City of New York, or at a place of payment, are authorized or obligated by law, executive order or regulation to close.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Company”
means Brainstorm Cell Therapeutics Inc., a corporation duly organized and existing under the laws of the State of Delaware, and, subject
to the provisions of Article 10, shall also include its successors and assigns.
“Company Order”
means a written order of the Company, signed by an Officer of the Company, and delivered to the Trustee.
“Corporate Trust
Office” means the office of the Trustee at which, at any particular time, its corporate trust business shall be administered,
which office at the date hereof is located at.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Defaulted Interest”
has the meaning set forth in Section 2.03.
“Depositary”
means, with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, another clearing agency, or any successor registered as a clearing agency under the Exchange Act,
or other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01
or 2.11.
“Event of Default”
means, with respect to Securities of a particular series, any event specified in Section 6.01, continued for the period of time,
if any, therein designated.
“Exchange Act”
means the United States Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Commission thereunder.
“Global Security”
means a Security issued to evidence all or a part of any series of Securities which is executed by the Company and authenticated and delivered
by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all in accordance with the Indenture, which shall
be registered in the name of the Depositary or its nominee.
“Governmental Obligations”
means securities that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is
pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America that,
in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated maturity of the applicable
series of Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian for
the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation
evidenced by such depositary receipt.
“herein”,
“hereof” and “hereunder”, and other words of similar import, refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof and shall include the terms of particular series of Securities established as
contemplated by Section 2.01.
“Interest Payment
Date”, when used with respect to any installment of interest on a Security of a particular series, means the date specified
in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which
an installment of interest with respect to Securities of that series is due and payable.
“Officer”
means, with respect to the Company, the Chairman of the Board of Directors, a Chief Executive Officer, a President, a Chief Financial
Officer, a Chief Operating Officer, any Executive Vice President, any Senior Vice President, any Vice President, the Treasurer or any
Assistant Treasurer, the Controller or any Assistant Controller or the Secretary or any Assistant Secretary.
“Officer’s
Certificate” means a certificate signed by any Officer. Each such certificate shall include the statements provided for in Section
13.07, if and to the extent required by the provisions thereof.
“Opinion of Counsel”
means an opinion in writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company, that
is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section
13.07, if and to the extent required by the provisions thereof.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time,
all Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore
canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously
been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside
and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if such
Securities or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been
given as provided in Article 3, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities
in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section
2.07.
“Person”
means any individual, corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated
organization, any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor Security”
of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible Officer”
when used with respect to the Trustee means any officer within the corporate trust department of the Trustee, including any vice president,
assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate
trust matter relating to this Indenture is referred because of such person’s knowledge of and familiarity with the particular subject
and, in each case, who shall have direct responsibility for the administration of this Indenture (which, for the avoidance of doubt, includes
without limitation any supplemental indenture hereto).
“Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under
this Indenture.
“Securityholder”,
“holder”, “registered holder”, or other similar term, means the Person or Persons in whose name
or names a particular Security is registered on the Security Register kept for that purpose in accordance with the terms of this Indenture.
“Security Register”
and “Security Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary”
means, with respect to any Person:
(1) any
corporation or company a majority of whose capital stock with voting power, under ordinary circumstances, to elect directors is, at the
date of determination, directly or indirectly, owned by such Person (a “subsidiary”), by one or more subsidiaries of
such Person or by such Person and one or more subsidiaries of such Person;
(2) a
partnership in which such Person or a subsidiary of such Person is, at the date of determination, a general partner of such partnership;
or
(3) any
partnership, limited liability company or other Person in which such Person, a subsidiary of such Person or such Person and one or more
subsidiaries of such Person, directly or indirectly, at the date of determination, have (x) at least a majority ownership interest or
(y) the power to elect or appoint or direct the election or appointment of the managing partner or member of such Person or, if applicable,
a majority of the directors or other governing body of such Person.
“Trustee”
means , and, subject to the provisions of Article 7, shall also include its successors and assigns, and, if at any time there is
more than one Person acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee”
as used with respect to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture
Act” means the Trust Indenture Act of 1939, as amended and in effect from time to time.
“U.S. dollar”
or “$” means the lawful currency of the United States of America.
ARTICLE
2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section
2.01 Designation and Terms of Securities.
(a) The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time
authorized by or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance
of Securities of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate
or established in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of that series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of that series);
(3) the date or dates on which the principal of the Securities of the series is payable;
(4) if the price (expressed as a percentage of the aggregate principal amount thereof) at which such Securities will be issued
is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration
of the maturity thereof, or if applicable, the portion of the principal amount of such Securities that is convertible into another security
or the method by which any such portion shall be determined;
(5) the rate or rates at which the Securities of the series shall bear interest or the manner of calculation of such rate or
rates, if any;
(6) the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest will be payable
or the manner of determination of such Interest Payment Dates, the place(s) of payment, and the record date for the determination of holders
to whom interest is payable on any such Interest Payment Dates or the manner of determination of such record dates;
(7) the right, if any, to extend the interest payment periods and the duration of such extension;
(8) the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the
series may be redeemed, converted or exchanged, in whole or in part;
(9) the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund, mandatory
redemption, or analogous provisions (including payments made in cash in satisfaction of future sinking fund obligations) or at the option
of a holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon which, Securities
of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(10) the form of the Securities of the series including the form of the Certificate of Authentication for such series;
(11) if other than minimum denominations of one thousand U.S. dollars ($1,000) or any integral multiple of $1,000 thereof, the
denominations in which the Securities of the series shall be issuable;
(12) any and all other terms (including terms, to the extent applicable, relating to any auction or remarketing of the Securities
of that series and any security for the obligations of the Company with respect to such Securities) with respect to such series (which
terms shall not be inconsistent with the terms of this Indenture, as amended by any supplemental indenture) including any terms which
may be required by or advisable under United States laws or regulations or advisable in connection with the marketing of Securities of
that series;
(13) whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities;
the terms and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual
Securities; and the Depositary for such Global Security or Securities;
(14) whether the Securities will be convertible into or exchangeable for shares of common stock, preferred stock or other securities
of the Company or any other Person and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable,
including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional
(at the Company’s option or the holders’ option) conversion or exchange features, and the applicable conversion or exchange
period;
(15) if other than the full principal amount thereof, the portion of the principal amount of Securities of the series which shall
be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(16) any additional or alternative Events of Default;
(17) additional or alternative covenants (which may include, among other restrictions, restrictions on the Company’s ability
or the ability of the Company’s Subsidiaries to: incur additional indebtedness; issue additional securities; create liens; pay dividends
or make distributions in respect of the capital stock of the Company or the Company’s Subsidiaries; redeem capital stock; place
restrictions on the Company’s Subsidiaries’ ability to pay dividends, make distributions or transfer assets; make investments
or other restricted payments; sell or otherwise dispose of assets; enter into sale-leaseback transactions; engage in transactions with
stockholders or affiliates; issue or sell stock of the Company’s Subsidiaries; or effect a consolidation or merger) or financial
covenants (which may include, among other financial covenants, financial covenants that require the Company and its Subsidiaries to maintain
specified interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios) provided for with respect to the Securities
of the series;
(18) the currency or currencies, including composite currencies, in which payment of the principal of (and premium, if any) and
interest, if any, on such Securities shall be payable (if other than the currency of the United States of America), which unless otherwise
specified shall be the currency of the United States of America as at the time of payment is legal tender for payment of public or private
debts;
(19) if the principal of (and premium, if any) or interest, if any, on such Securities is to be payable, at the election of the
Company or any holder thereof, in a coin or currency other than that in which such Securities are stated to be payable, then the period
or periods within which, and the terms and conditions upon which, such election may be made;
(20) whether interest will be payable in cash or additional Securities at the Company’s or the Securityholders’ option
and the terms and conditions upon which the election may be made;
(21) the terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium,
if any and principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for
federal tax purposes;
(22) additional or alternative provisions, if any, related to defeasance and discharge of the offered Securities;
(23) the applicability of any guarantees;
(24) any restrictions on transfer, sale or assignment of the Securities of the series; and
(25) any other terms of the series.
All Securities of any one
series shall be substantially identical except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures
supplemental hereto.
If any of the terms of the
series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall
be certified by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery of the
Officer’s Certificate of the Company setting forth the terms of the series.
Securities of any particular
series may be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such interest
may be payable and with different redemption dates.
Section
2.02 Form of Securities and Trustee’s Certificate.
The Securities of any series
and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as
set forth in one or more indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officer’s Certificate,
and they may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed
or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities
exchange on which Securities of that series may be listed, or to conform to usage.
Section
2.03
Denominations: Provisions for Payment.
The Securities shall be issuable
as registered Securities and in the minimum denominations of one thousand U.S. dollars ($1,000) or any integral multiple of $1,000 thereof,
subject to Section 2.01(a)(11). The Securities of a particular series shall bear interest payable on the dates and at the rate specified
with respect to that series. Subject to Section 2.01(a)(18), the principal of and the interest on the Securities of any series,
as well as any premium thereon in case of redemption thereof prior to maturity, shall be payable in the coin or currency of the United
States of America that at the time is legal tender for public and private debt, at the office or agency of the Company maintained for
that purpose. Each Security shall be dated the date of its authentication. Interest on the Securities shall be computed on the basis of
a 360-day year composed of twelve 30-day months.
The interest installment
on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series
shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business
on the regular record date for such interest installment. In the event that any Security of a particular series or portion thereof is
called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date and prior
to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security as provided in
Section 3.03.
Any interest on any Security
that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein
called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular record
date by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause
(1) or clause (2) below:
(1) The Company may elect to make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities
(or their respective Predecessor Securities) are registered at the close of business on a special record date for the payment of such
Defaulted Interest, which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Company shall fix
a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date
of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Company
shall promptly notify the Trustee in writing of such special record date and in such notice, instruct the Trustee to send such notice
to holders, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be sent electronically or mailed, first class postage prepaid, to each Securityholder at his or her address
as it appears in the Security Register (as hereinafter defined), not less than 10 days prior to such special record date. Notice of the
proposed payment of such Defaulted Interest and the special record date therefor having been sent as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered on such special
record date.
(2) The Company may make or cause to be made payment of any Defaulted Interest on any Securities in any other lawful manner
not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth
in a Board Resolution or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section
2.01 hereof, the term “regular record date” as used in this Section with respect to a series of Securities and any Interest
Payment Date for such series shall mean either (i) the fifteenth day of the month immediately preceding the month in which an Interest
Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the first
day of a month, or (ii) the first day of the month in which an Interest Payment Date established for such series pursuant to Section
2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing
provisions of this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other
Security.
Section
2.04 Execution and Authentications.
The Securities shall be signed
on behalf of the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile
signature of any Person who shall have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated
and delivered or disposed of such Person shall have ceased to be such an officer of the Company. The Securities may contain such notations,
legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication by
the Trustee.
A Security shall not be valid
until authenticated manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive
evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, signed by an Officer, and the Trustee in accordance with such Company Order shall authenticate and deliver
such Securities.
In authenticating such Securities
and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall receive, and (subject
to Section 7.01) shall be fully protected in conclusively relying upon, an Officer’s Certificate and an Opinion of Counsel
stating that the form and terms thereof have been established in conformity with the provisions of this Indenture, that all conditions
precedent in connection with the issuance, authentication and delivery of such Securities have been met and that such Securities are legal,
valid and binding obligations against the Company, enforceable against it in accordance with its terms, subject to customary exceptions
and qualifications.
The Trustee shall not be
required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own
rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
Section
2.05 Registration of Transfer and Exchange.
(a) Securities of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for
such purpose, for other Securities of such series of authorized denominations, and for a like aggregate principal amount, upon payment
of a sum sufficient to cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of
any Securities so surrendered for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall
deliver in exchange therefor the Security or Securities of the same series that the Securityholder making the exchange shall be entitled
to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or agency designated for such purpose a register or registers
(herein referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe,
the Company shall register the Securities and the transfers of Securities as in this Article provided and which at all reasonable times
shall be open for inspection by the Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein
provided shall be appointed as authorized by Board Resolution (the “Security Registrar”).
Upon surrender for transfer
of any Security at the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate
and such office or agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series as
the Security presented for a like aggregate principal amount.
All Securities presented
or surrendered for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so required by the Company
or the Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar,
duly executed by the registered holder or by such holder’s duly authorized attorney in writing.
(c) Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate,
or established in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration
of transfer of Securities, or issue of new Securities in case of partial redemption of any series, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06,
Section 3.03(b) and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding Securities
of the same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or exchange any
Securities of any series or portions thereof called for redemption, other than the unredeemed portion of any such Securities being redeemed
in part. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
The Trustee shall have no
obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among depositary
participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation
or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine
the same to determine substantial compliance as to form with the express requirements hereof.
Neither the Trustee nor any
Agent shall have any responsibility or liability for any actions taken or not taken by the Depositary.
Section
2.06 Temporary Securities.
Pending the preparation of
definitive Securities of any series, the Company may execute, and the Trustee shall, upon receipt of a Company Order, authenticate and
deliver, temporary Securities (printed, lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be
substantially in the form of the definitive Securities in lieu of which they are issued, but with such omissions, insertions and variations
as may be appropriate for temporary Securities, all as may be determined by the Company. Every temporary Security of any series shall
be executed by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive
Securities of such series and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without
charge to the holders), at the office or agency of the Company designated for the purpose, and the Trustee shall, upon receipt of a Company
Order, authenticate and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate principal amount
of definitive Securities of such series, unless the Company advises the Trustee to the effect that definitive Securities need not be executed
and furnished until further notice from the Company. Until so exchanged, the temporary Securities of such series shall be entitled to
the same benefits under this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section
2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or
definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall
execute, and upon receipt of a Company Order the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the
same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of
and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish
to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case
of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction of the destruction,
loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such substituted Security
and deliver the same upon receipt of a Company Order. Upon the issuance of any substituted Security, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
In case any Security that
has or is about to become due and payable, whether upon maturity of the Securities of a series or upon declaration or otherwise shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment
of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish to
the Company and the Trustee such security or indemnity as they may require to save them harmless, and, in case of destruction, loss or
theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of such Security and of the ownership
thereof.
Every replacement Security
issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not
the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder.
All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
Section
2.08 Cancellation.
All Securities surrendered
for the purpose of payment, redemption, exchange or registration of transfer shall, if surrendered to the Company or any paying agent,
be delivered to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be
issued in lieu thereof except as expressly required or permitted by any of the provisions of this Indenture. On written request of the
Company at the time of such surrender, the Trustee shall deliver to the Company evidence of cancellation for such canceled Securities
held by the Trustee. The Trustee shall cancel and dispose of canceled Securities in accordance with its standard procedures and deliver
a certificate of disposition to the Company. If the Company shall otherwise acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered
to the Trustee for cancellation.
Section
2.09 Benefits of Indenture.
Nothing in this Indenture
or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders
of the Securities any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the
holders of the Securities.
Section
2.10 Authenticating Agent.
So long as any of the Securities
of any series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of
such series issued upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this
Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating Agent for
such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital and surplus,
as most recently reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized or in which it
is doing business to conduct a trust business, and that is otherwise authorized under such laws to conduct such business and is subject
to supervision or examination by federal or state authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance
with these provisions, it shall resign immediately.
Any Authenticating Agent
may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon
request by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating
Agent pursuant hereto.
Section
2.11 Global Securities.
(a) If the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued
as a Global Security, then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver,
a Global Security that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all
of the Outstanding Securities of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered
by the Trustee to the Depositary or held by it, pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially
to the following effect: “Except as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred,
in whole but not in part, only to another nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but
not in part and in the manner provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor
Depositary for such series selected or approved by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue
as Depositary for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under
the Exchange Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default
has occurred and is continuing and the Company has received a request from the Depositary or from the Trustee, this Section 2.11
shall no longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee
will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security.
In addition, the Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security
and that the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company
will execute and, subject to Section 2.04, the Trustee, upon receipt of an Officer’s Certificate and a Company Order evidencing
such determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series
in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive registered form without
coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form
issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee
in writing. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities are
so registered.
ARTICLE
3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section
3.01 Redemption.
The Company may redeem the
Securities of any series issued hereunder on and after the dates and in accordance with the terms established for such series pursuant
to Section 2.01 hereof.
Section
3.02 Notice of Redemption.
(a) In case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities
of any series in accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company
shall, or shall cause the Trustee (upon 5 Business Days written notice, unless a shorter period shall be satisfactory to the Trustee)
to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, electronically or by first class
postage prepaid mail, a notice of such redemption not less than 15 days and not more than 90 days, except that redemption notices may
be sent more than 90 days prior to the redemption date if the notice is issued in connection with a defeasance of the Securities or a
satisfaction and discharge, before the date fixed for redemption of that series to such holders (with a copy to the Trustee) at their
last addresses as they shall appear upon the Security Register, unless a shorter period is specified in the Securities to be redeemed.
Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give such notice to the holder of any Security of any series designated for redemption
in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities
of such series or any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s
Certificate evidencing compliance with any such restriction.
Each such notice of redemption
shall specify the date fixed for redemption, if applicable, any record date with respect to such redemption and the redemption price at
which Securities of that series are to be redeemed, and shall state that payment of the redemption price of such Securities to be redeemed
will be made at the office or agency of the Company, upon presentation and surrender of such Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, that from and after said date interest will cease to accrue and that
the redemption is from a sinking fund, if such is the case. If less than all the Securities of a series are to be redeemed, the notice
to the holders of Securities of that series to be redeemed in part shall specify the particular Securities to be so redeemed.
In case any Security is to
be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed,
and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
(b) If less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 20 days’
notice (unless a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as
it shall deem appropriate and fair in its discretion (and subject to the applicable procedures of the Depositary) and that may provide
for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof) of the principal
amount of such Securities of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify the
Company in writing of the numbers of the Securities to be redeemed, in whole or in part. The Company may, if and whenever it shall so
elect, by delivery of instructions signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or any part
of the Securities of a particular series for redemption and to send notice of redemption in the manner set forth in this Section, such
notice to be in the name and at the expense of the Company. In any case in which notice of redemption is to be sent by the Trustee or
any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying agent,
as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable
the Trustee or such paying agent to give any notice by mail that may be required under the provisions of this Section.
Section
3.03 Payment
Upon Redemption.
(a) If the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities
of the series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice
at the applicable redemption price, together with interest accrued to the date fixed for redemption and interest on such Securities or
portions of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment
of such redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such
Securities on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid and
redeemed at the applicable redemption price for such series, together with interest accrued thereon to the date fixed for redemption (but
if the date fixed for redemption is an interest payment date, the interest installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date pursuant to Section 2.03).
(b) Upon presentation of any physical Security of such series that is to be redeemed in part only, the Company shall execute
and the Trustee shall authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the
expense of the Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion
of the Security so presented.
Section
3.04 Sinking Fund.
The provisions of Sections
3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as
otherwise specified as contemplated by Section 2.01 for Securities of such series.
The minimum amount of any
sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,”
and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities
of any series as provided for by the terms of Securities of such series.
Section
3.05 Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver
Outstanding Securities of a series and (ii) may apply as a credit Securities of a series that have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities
of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series, provided
that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee
at the redemption price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
Section
3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior
to each sinking fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company
will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer’s Certificate, deliver
to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.02. Such notice
having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE
4
COVENANTS
Section
4.01 Payment of Principal, Premium and Interest.
The Company will duly and
punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and
place and in the manner provided herein and established with respect to such Securities. Payments of principal on the physical Securities
may be made at the time provided herein and established with respect to such Securities by U.S. dollar check drawn on and mailed to the
address of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to,
a U.S. dollar account if such Securityholder shall have furnished wire instructions to the Trustee no later than 15 days prior to the
relevant payment date. Payments of interest on the Securities may be made at the time provided herein and established with respect to
such Securities by U.S. dollar check mailed to the address of the Securityholder entitled thereto as such address shall appear in the
Security Register, or U.S. dollar wire transfer to an account in the United States if such Securityholder shall have furnished wire instructions
in writing to the Security Registrar and the Trustee no later than 15 days prior to the relevant payment date.
Section
4.02 Maintenance of Office or Agency.
So long as any series of
the Securities remain Outstanding, the Company agrees to maintain an office or agency with respect to each such series and at such other
location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be presented
for payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange, and
(iii) notices in respect of the Securities of that series and this Indenture may be given or made, such designation to continue with respect
to such office or agency until the Company shall, by written notice in an Officer’s Certificate and delivered to the Trustee, designate
some other office or agency for such purposes or any of them. If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such presentations and notices may be made at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations and notices; provided,
however, the Trustee shall not be considered an agent of the Company for service of process.
Section
4.03 Paying Agents.
(a) If the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee,
the Company will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with
the Trustee, subject to the provisions of this Section:
(1) that it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest
on the Securities of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in
trust for the benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make
any payment of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon
the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent;
(4) that upon any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition
or judicial proceedings affecting the Company, the Trustee will automatically be the Paying Agent; and
(5) that it will perform all other duties of paying agent as set forth in this Indenture.
(b) If the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each
due date of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on
Securities of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company
shall have one or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if
any) or interest on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section
is subject to the provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust
by the Company or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums
were held by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or
such paying agent shall be released from all further liability with respect to such money.
(d) The Company initially appoints the Trustee at its Corporate Trust Office as its paying agent with respect to the Securities.
Section
4.04 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary
to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
Section
4.05 Compliance with Consolidation Provisions.
The Company will not, while
any of the Securities remain Outstanding, consolidate with or merge into any other Person, in either case where the Company is not the
survivor of such transaction, or sell or convey all or substantially all of its property to any other Person unless the provisions of
Article 10 hereof are complied with.
ARTICLE
5
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
Section
5.01 Company to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish
or cause to be furnished to the Trustee (a) within 5 days after each regular record date (as defined in Section 2.03) a list, in
such form as the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities as of such regular
record date, provided that the Company shall not be obligated to furnish or cause to be furnished such list at any time that the
list shall not differ in any respect from the most recent list furnished to the Trustee by the Company and (b) at such other times as
the Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is furnished; provided, however, that, in either case, no
such list need be furnished for any series for which the Trustee shall be the Security Registrar.
Section
5.02 Preservation Of Information; Communications With Securityholders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses
of the holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names
and addresses of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with
respect to their rights under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall
satisfy its obligations under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust
Indenture Act.
Section
5.03 Reports by the Company.
(a) The Company covenants and agrees to provide (which delivery may be via electronic mail) to the Trustee within 30 days, after
the Company files the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) that the Company
is required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however,
the Company shall not be required to deliver to the Trustee any materials for which the Company has sought and received confidential treatment
by the Commission; and provided further, that so long as such filings by the Company are available on the Commission’s Electronic
Data Gathering, Analysis and Retrieval System (EDGAR), or Interactive Data Electronic Applications (IDEA), or any successor system, such
filings shall be deemed to have been filed with the Trustee for purposes hereof without any further action required by the Company; provided
that an electronic link to such filing, together with an electronic notice of such filing have been sent to the Trustee it being understood
that the Trustee shall have no responsibility to determine whether such filings have been made. For the avoidance of doubt, a failure
by the Company to file annual reports, information and other reports with the Commission within the time period prescribed thereof by
the Commission shall not be deemed a breach of this Section 5.03.
(b) Delivery of reports, information and documents to the Trustee under Section 5.03 is for informational purposes only
and the information and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained
therein, or determinable from information contained therein including the Company’s compliance with any of their covenants thereunder
(as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate).
Section
5.04 Reports by the Trustee.
(a) If required by Section 313(a) of the Trust Indenture Act, the Trustee, within sixty (60) days after each May 15, commencing
the calendar year after the year in which the first Securities are issued hereunder, shall transmit by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear upon the Security Register, a brief report dated as of such May 15, which
complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the
Company, with each securities exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees
to notify the Trustee in writing when any Securities become listed on any securities exchange or of any delisting thereof.
ARTICLE
6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
Section
6.01 Events of Default.
(a) Whenever used herein with respect to Securities of a particular series, “Event of Default” means any
one or more of the following events that has occurred and is continuing:
(1) the Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when
the same shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension
of an interest payment period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a
default in the payment of interest for this purpose;
(2) the Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as
and when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required
by any sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the
maturity of such Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment
of principal or premium, if any;
(3) the Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in
this Indenture or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a
covenant or agreement that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other
than such series) for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and
stating that such notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee or
to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time Outstanding;
(4) the Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the
entry of an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property or (iv) makes a general assignment for the benefit of its creditors; or
(5) a court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in
an involuntary case, (ii) appoints a Custodian of the Company for all or substantially all of its property or (iii) orders the liquidation
of the Company, and the order or decree remains unstayed and in effect for 90 days.
(b) In each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal
of all the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest
on all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall
be immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of and accrued
and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without any declaration or
other act on the part of the Trustee or the holders of the Securities.
(c) At any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series
shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company
has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of that series
and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise than by acceleration
(with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per annum expressed in the Securities of that series to the date of such payment or deposit)
and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture with respect
to such series, other than the nonpayment of principal on (and premium, if any, on) and accrued and unpaid interest on Securities of that
series that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.06.
No such rescission and annulment
shall extend to or shall affect any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture
and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall
have been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the Company
and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee shall continue as though no such proceedings had been taken.
Section
6.02 Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) The Company covenants that if an Event of Default described in Section 6.01(a) or 6.01(b) shall have occurred with respect
to the Securities of any series, the Company will pay to the Trustee, for the benefit of the holders of the Securities of that series,
the whole amount that then shall have been become due and payable on all such Securities for principal (and premium, if any) or interest,
or both, as the case may be, with interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest
is enforceable under applicable law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series;
and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable
to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of
an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the
sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment
or final decree against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to
be payable in the manner provided by law or equity out of the property of the Company or other obligor upon the Securities of that series,
wherever situated.
(c) In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition
or judicial proceedings affecting the Company, or its creditors or property, irrespective of whether the Trustee shall have made any demand
pursuant to this Section 6.02, the Trustee shall have power to intervene in such proceedings and take any action therein that may be permitted
by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim and other papers and documents
as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities of such series allowed for
the entire amount due and payable by the Company under the Indenture at the date of institution of such proceedings and for any additional
amount that may become due and payable by the Company after such date, and to collect and receive any moneys or other property payable
or deliverable on any such claim, and to distribute the same after the deduction of the amount payable to the Trustee under Section
7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the holders of Securities
of such series to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly
to such Securityholders, to pay to the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to
Securities of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof
at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due
under Section 7.06, be for the ratable benefit of the holders of the Securities of such series.
In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or
in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or in aid of
the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Nothing contained herein
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder thereof or to authorize the
Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section
6.03 Application of Moneys Collected.
Any moneys or properties
collected by the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium,
if any) or interest, upon presentation of the Securities of that series, and notation thereon of the payment, if only partially paid,
and upon surrender thereof if fully paid:
FIRST: To the payment
of reasonable costs and expenses of collection and of all amounts payable to the Trustee, its agents and attorneys under this Indenture;
SECOND: To the payment
of the amounts then due and unpaid upon Securities of such series for principal (and premium, if any) and interest, in respect of which
or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To the payment
of the remainder, if any, to the Company or any other Person lawfully entitled thereto.
Section
6.04 Limitation on Suits.
No holder of any Security
of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance
thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided; (ii) the holders of
not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii) such holder or holders shall have
offered to the Trustee such indemnity reasonably satisfactory to it as it may require against the costs, expenses, claims and liabilities
to be incurred therein or thereby; (iv) the Trustee for 90 days after its receipt of such notice, request and offer of indemnity, shall
have failed to institute any such action, suit or proceeding and (v) during such 90 day period, the holders of a majority in principal
amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything
contained herein to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive payment
of the principal of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed
in such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such holder and by accepting
a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security of such series with
every other such taker and holder and the Trustee, that no one or more holders of Securities of such series shall have any right in any
manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the holders
of any other of such Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any
right under this Indenture (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions
or forbearances are unduly prejudicial to such holders), except in the manner herein provided and for the equal, ratable and common benefit
of all holders of Securities of such series. For the protection and enforcement of the provisions of this Section, each and every Securityholder
and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section
6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to
the Securityholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available
to the Trustee or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon
any Event of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver
of any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by
this Article or by law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee or by the Securityholders.
Section
6.06 Control by Securityholders.
The holders of a majority
in aggregate principal amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04,
shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to such series; provided, however, that such direction shall not
be in conflict with any rule of law or with this Indenture or subject the Trustee in its sole discretion to personal liability. The Trustee
shall have the right to decline to follow any such direction if the Trustee in good faith shall determine that the proceeding so directed,
subject to the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly
prejudicial to the Securityholders not involved in the proceeding. Prior to taking any action under this Indenture, the Trustee shall
be entitled to indemnity or security satisfactory to it against loss, liability or expense that may be caused by taking such action. The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding affected thereby, determined
in accordance with Section 8.04, may on behalf of the holders of all of the Securities of such series waive any past default in
the performance of any of the covenants contained herein or established pursuant to Section 2.01 with respect to such series and
its consequences, except a default in the payment of the principal of, or premium, if any, or interest on, any of the Securities of that
series as and when the same shall become due by the terms of such Securities otherwise than by acceleration (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and principal and any premium has been deposited with the Trustee
(in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes
of this Indenture and the Company, the Trustee and the holders of the Securities of such series shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent
thereon.
Section
6.07 Undertaking to Pay Costs.
All parties to this Indenture
agree, and each holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or
group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security
of such series, on or after the respective due dates expressed in such Security or established pursuant to this Indenture.
ARTICLE
7
CONCERNING THE TRUSTEE
Section
7.01 Certain Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing
of all Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect
to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants
shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred
(that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person’s own affairs.
(b) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving
of all such Events of Default with respect to that series that may have occurred:
(A)
the duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the
performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(B)
in the absence of willful misconduct on the part of the Trustee, the Trustee may with respect to the Securities of such
series conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein);
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance
with the direction of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding
relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture with respect to the Securities of that series; and
(4) none of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur personal or financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there
is reasonable ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably assured to it.
Section
7.02 Certain Rights of Trustee.
Except as otherwise provided
in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document or other evidence of
indebtedness believed by it to be genuine and to have been signed or presented by the proper party or parties. The Trustee need not investigate
any fact or matter stated in the document. The Trustee shall receive and retain financial reports and statements of the Company to the
extent provided herein, but shall have no duty to review or analyze such reports or statements to determine compliance with covenants
or other obligations of the Company;
(b) Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution
or an instrument signed in the name of the Company by any authorized Officer of the Company (unless other evidence in respect thereof
is specifically prescribed herein);
(c) The Trustee may consult with counsel of its selection and the advice of such counsel or, if requested, any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith
and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have
offered (and if requested, provided) to the Trustee security or indemnity satisfactory to it against the costs, expenses, claims and liabilities
that may be incurred therein or thereby;
(e) The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents or other
evidence of indebtedness, unless requested in writing so to do by the holders of not less than a majority in principal amount of the Outstanding
Securities of the particular series affected thereby (determined as provided in Section 8.04); provided, however,
that if the payment within a reasonable time to the Trustee of the costs, expenses, claims or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may require indemnity or security satisfactory to it against such costs, expenses, claims
or liabilities as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Company or, if paid
by the Trustee, shall be repaid by the Company upon demand;
(g) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h) In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances;
(i) In no event shall the Trustee be responsible or liable for special, punitive, indirect, or consequential loss or damage
of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action;
(j) The permissive rights of the Trustee enumerated herein shall not be construed as duties;
(k) The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture; and
(l) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
In addition, the Trustee
shall not be deemed to have knowledge of any Default or Event of Default until a Responsible Officer of the Trustee shall have received
written notification in the manner set forth in this Indenture, and such notice references the Securities and this Indenture or a Responsible
Officer of the Trustee shall have obtained actual knowledge.
Section
7.03 Trustee Not Responsible for Recitals or Issuance or Securities.
(a) The recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes
no responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds
of such Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture
or established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the
Trustee.
Section
7.04 May Hold Securities.
The Trustee or any paying
agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights
it would have if it were not Trustee, paying agent or Security Registrar.
Section
7.05 Moneys Held in Trust.
Subject to the provisions
of Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on any moneys received by it hereunder except such as it may agree in writing with the Company to pay
thereon.
Section
7.06 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such compensation (which shall
not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as the Company and the Trustee
may from time to time agree in writing, for all services rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided herein, the Company
will pay or reimburse the Trustee upon its request for all reasonable and documented expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable and documented fees and the expenses
and disbursements of its counsel and of all Persons not regularly in its employ), except any such expense, disbursement or advance as
may arise from its negligence or willful misconduct. The Company also covenants to indemnify the Trustee (and its officers, agents, directors
and employees) for, and to hold it harmless against, any documented loss, liability or expense, including reasonable and documented attorneys’
fees, incurred without negligence or willful misconduct on the part of the Trustee and arising out of or in connection with the acceptance
or administration of this trust, including the reasonable and documented costs and expenses of defending itself against any claim of liability
in the premises (whether asserted by the Company, or any holder or any other Person) or liability in connection with the exercise or performance
of any of its powers or duties hereunder, or in connection with enforcing the provisions of this Section.
(b) The obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee
for reasonable expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall
be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the holders of particular Securities.
(c) To ensure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities
on all funds or property held or collected by the Trustee, except that held in trust to pay principal of, premium, if any, or interest
on particular Securities. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section
6.01(a)(4) or (5), the expenses (including the reasonable fees and expenses of its counsel) and the compensation for services
in connection therewith are to constitute expenses of administration under any Bankruptcy Law. The provisions of this Section 7.06
shall survive the termination of this Indenture and the earlier resignation or removal of the Trustee.
Section
7.07 Reliance on Officer’s Certificate or Opinion of Counsel.
Except as otherwise provided
in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary
or desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or willful misconduct on
the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate and Opinion of Counsel
delivered to the Trustee and such certificate and opinion, in the absence of negligence or willful misconduct on the part of the Trustee,
shall be full warrant to the Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture
upon the faith thereof.
Section
7.08 Disqualification; Conflicting Interests.
If the Trustee has or shall
acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company
shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section
7.09 Corporate Trustee Required; Eligibility.
There shall at all times
be a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and doing business under
the laws of the United States of America or any state or territory thereof or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state, territorial,
or District of Columbia authority.
If such corporation or other
Person publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such corporation or other Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor may
any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in
the manner and with the effect specified in Section 7.10.
Section
7.10 Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series
by giving written notice thereof to the Company and by transmitting notice of resignation by electronic mail, or by first class postage
prepaid mail, to the Securityholders of such series, as their names and addresses appear upon the Security Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee with respect to Securities of such series by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after
the mailing of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder
of a Security or Securities for at least six months may on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint
a successor trustee.
(b) In case at any time any one of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company
or by any Securityholder who has been a bona fide holder of a Security or Securities for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign
after written request therefor by the Company or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee with respect
to all Securities and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or any Securityholder who
has been a bona fide holder of a Security or Securities for at least six months may, on behalf of that holder and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any
time remove the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for
such series with the consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series
pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided
in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more
series or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section
7.11 Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee
so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor trustee, such retiring Trustee shall, upon full payment of any amount then due it pursuant to Section
7.06, execute and deliver an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute
and deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such
successor trustee relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee
and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment of such successor
trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations
vested in the Trustee under this Indenture, and each such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but, on request of the Company or any successor trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property
and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such
successor trustee relates.
(c) Upon request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be
qualified and eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of
the succession of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear
upon the Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section
7.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee,
including the administration of the trust created by this Indenture, shall be the successor of the Trustee hereunder, provided
that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09,
without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such Securities.
Section
7.13 Preferential Collection of Claims Against the Company.
The Trustee shall comply
with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture
Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section
7.14 Notice of Default.
If any Event of Default occurs
and is continuing and if such Event of Default is actually known to a Responsible Officer of the Trustee, the Trustee shall send to each
Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Event of Default within
the later of 90 days after it occurs and 30 days after it is actually known to a Responsible Officer of the Trustee or written notice
of it is received by the Trustee, unless such Event of Default has been cured; provided, however, that, except in the case
of a default in the payment of the principal of (or premium, if any) or interest on any Security, the Trustee shall be protected in withholding
such notice if and so long as it in good faith determines that the withholding of such notice is in the interest of the Securityholders.
ARTICLE
8
CONCERNING THE SECURITYHOLDERS
Section
8.01 Evidence of Action by Securityholders.
Whenever in this Indenture
it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular
series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action the holders of such majority or specified percentage of that series
have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders of Securities
of that series in person or by agent or proxy appointed in writing.
If the Company shall solicit
from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, as evidenced by an Officer’s Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company
shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver
or other action may be given before or after the record date, but only the Securityholders of record at the close of business on the record
date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of Outstanding
Securities of that series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver
or other action, and for that purpose the Outstanding Securities of that series shall be computed as of the record date; provided,
however, that no such authorization, agreement or consent by such Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
Section
8.02 Proof of Execution by Securityholders.
Subject to the provisions
of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his
agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable
to the Trustee.
(b) The ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security
Registrar thereof. The Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary.
Section
8.03 Who May be Deemed Owners.
Prior to the due presentment
for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat
the Person in whose name such Security shall be registered upon the books of the Security Registrar as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than
the Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to Section
2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
Section
8.04 Certain Securities Owned by Company Disregarded.
In determining whether the
holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any direction, consent, demand,
authorization, notice or waiver under this Indenture, the Securities of that series that are owned by the Company or any other obligor
on the Securities of that series or by any Person directly or indirectly controlling or controlled by or under common control with the
Company or any other obligor on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction,
consent or waiver, only Securities of such series that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.
The Securities so owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee
shall establish to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee
is not a Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any
such other obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
Section
8.05 Actions Binding on Future Securityholders.
At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority
or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with such
action, any holder of a Security of that series that is shown by the evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued in exchange
therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made
upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal amount of the Securities of a
particular series specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee
and the holders of all the Securities of that series.
ARTICLE
9
SUPPLEMENTAL INDENTURES
Section
9.01 Supplemental Indentures Without the Consent of Securityholders.
In addition to any supplemental
indenture otherwise authorized by this Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent
of the Securityholders at any time Outstanding, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b) to comply with Article 10;
(c) to provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of
all or any series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than
all series of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for
the benefit of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes
of issue, authentication, and delivery of Securities, as herein set forth;
(f) to make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g) to provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided
in Section 2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or
any series of Securities, or to add to the rights of the holders of any series of Securities;
(h) to evidence and provide for the acceptance of appointment hereunder by a successor trustee or to appoint a separate trustee
with respect to any series; or
(i) to comply with any requirements of the Commission or any successor in connection with the qualification of this Indenture
under the Trust Indenture Act.
The Trustee is hereby authorized
to join with the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture
authorized by the provisions of this Section may be executed by the Company and the Trustee without the consent of the holders of any
of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section
9.02 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced
as provided in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each
series affected by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered by Section
9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend the
fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid percentage of Securities, the
holders of which are required to consent to any such supplemental indenture.
It shall not be necessary
for the consent of the Securityholders of any series affected thereby under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. The Trustee shall not be obligated
to enter into any such supplemental indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.
Section
9.03 Effect of Supplemental Indentures.
Upon the execution of any
supplemental indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such
series only, be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for
any and all purposes with respect to such series.
Section
9.04 Securities Affected by Supplemental Indentures.
Securities of any series
affected by a supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements
of any securities exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee
and delivered in exchange for the Securities of that series then Outstanding.
Section
9.05 Execution of Supplemental Indentures.
Upon the request of the Company,
accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such supplemental
indenture. The Trustee shall receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article is authorized or permitted by the terms of this Article and that all conditions precedent
to the execution of the supplemental indenture have been complied with and with respect to such Opinion of Counsel, that such supplemental
indenture is the legal, valid and binding obligation of the Company, enforceable against each of them in accordance with its terms, subject
to customary exceptions and qualifications.
Promptly after the execution
by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Article, the Company shall transmit by
electronic mail, or by first class mail, postage prepaid, a notice, setting forth in general terms the substance of such supplemental
indenture, to the Securityholders of all series affected thereby as their names and addresses appear upon the Security Register. Any failure
of the Company to mail, or cause the mailing of, such notice, or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
ARTICLE
10
SUCCESSOR ENTITY
Section
10.01 Company May Consolidate, Etc.
Nothing contained in this
Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated with the Company)
or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, or shall prevent
any sale, conveyance, transfer or other disposition of the property of the Company or its successor or successors as an entirety, or substantially
as an entirety, to any other corporation (whether or not affiliated with the Company or its successor or successors) authorized to acquire
and operate the same; provided, however, (a) the Company hereby covenants and agrees that, upon any such consolidation or
merger (in each case, if the Company is not the survivor of such transaction), sale, conveyance, transfer or other disposition, the due
and punctual payment of the principal of (premium, if any) and interest on all of the Securities of all series in accordance with the
terms of each series, according to their tenor, and the due and punctual performance and observance of all the covenants and conditions
of this Indenture with respect to each series or established with respect to such series pursuant to Section 2.01 to be kept or
performed by the Company shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture
Act, as then in effect) executed and delivered to the Trustee by the entity formed by such consolidation, or into which the Company shall
have been merged, or by the entity which shall have acquired such property and (b) in the event that the Securities of any series then
Outstanding are convertible into or exchangeable for shares of common stock or other securities of the Company, such entity shall, by
such supplemental indenture, make provision so that the Securityholders of Securities of that series shall thereafter be entitled to receive
upon conversion or exchange of such Securities the number of securities or property to which a holder of the number of shares of common
stock or other securities of the Company deliverable upon conversion or exchange of those Securities would have been entitled had such
conversion or exchange occurred immediately prior to such consolidation, merger, sale, conveyance, transfer or other disposition. If the
Company is not the surviving entity of any such transaction, the Company or the continuing entity agrees to deliver to the Trustee an
Officer’s Certificate and Opinion of Counsel stating that the transaction and the supplemental indenture complies with this Section
10.01 and that all conditions precedent herein relating to the transaction have been satisfied.
Section
10.02 Successor Entity Substituted.
(a) In case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the
successor entity by supplemental indenture, executed and delivered to the Trustee, of the obligations set forth under Section 10.01
on all of the Securities of all series Outstanding, such successor entity shall succeed to and be substituted for the Company with the
same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be relieved of all obligations
and covenants under this Indenture and the Securities.
(b) In case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology
and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c) Nothing contained in this Article shall require any action by the Company in the case of a consolidation or merger of any
Person into the Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise,
of all or any part of the property of any other Person (whether or not affiliated with the Company).
ARTICLE
11
SATISFACTION AND DISCHARGE
Section
11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company
shall have delivered to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee
for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or paid as
provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have theretofore been deposited in
trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged from such trust, as provided in
Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation shall
have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit or cause
to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination thereof, sufficient
in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered
to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed for redemption, as
the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder with respect to such series by
the Company then this Indenture shall thereupon cease to be of further effect with respect to such series except for the provisions of
Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the date
of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter,
and the Trustee, on demand of the Company and at the cost and expense of the Company shall execute such instruments reasonably requested
by the Company acknowledging satisfaction of and discharging this Indenture with respect to such series.
Section
11.02 Discharge of Obligations.
If at any time all such Securities
of a particular series not heretofore delivered to the Trustee for cancellation or that have not become due and payable as described in
Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount
of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder
by the Company with respect to such series, then after the date such moneys or Governmental Obligations, as the case may be, are deposited
with the Trustee the obligations of the Company under this Indenture with respect to such series shall cease to be of further effect except
for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.06, 7.10
and 11.05 hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06
and 11.05 shall survive.
Section
11.03 Deposited Moneys to be Held in Trust.
All moneys or Governmental
Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available
for payment as due, either directly or through any paying agent (including the Company acting as its own paying agent), to the holders
of the particular series of Securities for the payment or redemption of which such moneys or Governmental Obligations have been deposited
with the Trustee.
Section
11.04 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction
and discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability
with respect to such moneys or Governmental Obligations.
Section
11.05 Repayment to Company.
Any moneys or Governmental
Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or premium,
if any, or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities
for at least two years after the date upon which the principal of (and premium, if any) or interest on such Securities shall have respectively
become due and payable, or such other shorter period set forth in applicable escheat or abandoned or unclaimed property law, shall be
repaid to the Company on May 31 of each year or upon the Company’s request or (if then held by the Company) shall be discharged
from such trust; and thereupon the paying agent and the Trustee shall be released from all further liability with respect to such moneys
or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment shall thereafter, as a general creditor,
look only to the Company for the payment thereof.
ARTICLE
12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section
12.01 No Recourse.
No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood
that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason
of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom; and that any
and all such personal liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any
and all such rights and claims against, every such incorporator, stockholder, officer or director as such, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Securities.
ARTICLE
13
MISCELLANEOUS PROVISIONS
Section
13.01 Effect on Successors and Assigns.
All the covenants, stipulations,
promises and agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so expressed
or not.
Section
13.02 Actions by Successor.
Any act or proceeding by
any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall
and may be done and performed with like force and effect by the corresponding board, committee or officer of any corporation that shall
at the time be the lawful successor of the Company.
Section
13.03 Surrender of Company Powers.
The Company by instrument
in writing executed by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the
Company, and thereupon such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section
13.04 Notices.
Except as otherwise expressly
provided herein, any notice, request or demand that by any provision of this Indenture is required or permitted to be given, made or served
by the Trustee or by the holders of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or
served by any standard form of telecommunication or by being deposited in first class mail, postage prepaid, addressed (until another
address is filed in writing by the Company with the Trustee), as follows: [ ]. Any notice, election, request or demand by the Company
or any Securityholder or by any other Person pursuant to this Indenture to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at the Corporate Trust Office of the Trustee. Notwithstanding anything herein
to the contrary, where reference herein is made to notice of any event (including notice of redemption) to a Securityholder of Global
Securities, whether by mail or otherwise, such notice shall be sufficiently given when delivered to the Depositary (or its designee) pursuant
to the customary procedures of the Depositary.
Section
13.05 Governing Law; Jury Trial Waiver.
THIS INDENTURE AND EACH SECURITY,
AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH SECURITY, SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF). EACH OF THE COMPANY
AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section
13.06 Treatment of Securities as Debt.
It is intended that the Securities
will be treated as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted
to further this intention.
Section
13.07 Certificates and Opinions as to Conditions Precedent.
(a) Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture,
the Company shall furnish to the Trustee an Officer’s Certificate stating that all covenants and conditions precedent provided for
in this Indenture (other than the certificate to be delivered pursuant to Section 13.12) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such counsel all such covenants and conditions precedent have been
complied with.
(b) Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with
a condition or covenant in this Indenture shall include (i) a statement that the Person making such certificate or opinion has read such
covenant or condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such
examination or investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant
has been complied with.
Section
13.08 Payments on Business Days.
Except as provided pursuant
to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more
indentures supplemental to this Indenture, in any case where the date that principal of, interest and/or premium, if any, on any Security
is due or otherwise payable shall not be a Business Day or is a day on which the banking institutions in the city of the office of the
Paying Agent are authorized or obligated by law to close or be closed, then payment of principal, premium, if any, and/or interest may
be made on the next succeeding day that is a Business Day and is not a day on which the banking institutions in the city of the office
of the Paying Agent are authorized or obligated by law to close or be closed with the same force and effect as if made on the nominal
date of maturity or redemption, and no interest shall accrue for the period after such nominal date.
Section
13.09 Conflict with Trust Indenture Act.
If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
Section
13.10 Counterparts.
This Indenture may be executed
in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same
instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective
execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes.
Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section
13.11 Separability.
In case any one or more of
the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities,
but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained
herein or therein.
Section
13.12 Compliance Certificates.
The Company shall deliver
to the Trustee, within 120 days after the end of each fiscal year during which any Securities of any series were outstanding, an Officer’s
Certificate stating whether or not the signers know of any Event of Default that occurred during such fiscal year. Such certificate shall
contain a certification from the principal executive officer, principal financial officer or principal accounting officer of the Company
that a review has been conducted of the activities of the Company and the Company’s performance under this Indenture and that the
Company has complied with all conditions and covenants under this Indenture. For purposes of this Section 13.12, such compliance
shall be determined without regard to any period of grace or requirement of notice provided under this Indenture. If the officer of the
Company signing such certificate has knowledge of such an Event of Default, the certificate shall describe any such Event of Default and
its status.
Section
13.13 USA PATRIOT ACT.
The parties hereto acknowledge
that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the
funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal
entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide
the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
Section
13.14 Calculations.
It is understood that the
Trustee nor the Paying Agent shall have no responsibility for any calculations hereunder and shall be entitled to conclusively rely on
the calculations of the Company without any independent verification or investigation.
IN WITNESS WHEREOF,
the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
| |
BRAINSTORM CELL THERAPEUTICS INC., as Issuer |
Signature Page to Form of Indenture
TRUST INDENTURE ACT CROSS-REFERENCE TABLE2
|
Section of Trust Indenture Act of
1939, as amended |
|
Section of
Indenture |
| 310(a) |
|
7.09 |
| 310(b) |
|
7.08
7.10 |
| 310(c) |
|
Inapplicable |
| 311(a) |
|
7.13 |
| 311(b) |
|
7.13 |
| 311(c) |
|
Inapplicable |
| 312(a) |
|
5.01
5.02(a) |
| 312(b) |
|
5.02(c) |
| 312(c) |
|
5.02(c) |
| 313(a) |
|
5.04(a) |
| 313(b) |
|
5.04(b) |
| 313(c) |
|
5.04(a)
5.04(b) |
| 313(d) |
|
5.04(c) |
| 314(a) |
|
5.03
13.12 |
| 314(b) |
|
Inapplicable |
| 314(c) |
|
13.07(a) |
| 314(d) |
|
Inapplicable |
| 314(e) |
|
13.07(b) |
| 314(f) |
|
Inapplicable |
| 315(a) |
|
7.01(a)
7.01(b) |
| 315(b) |
|
7.14 |
| 315(c) |
|
7.01(a) |
| 315(d) |
|
7.01(b) |
| 315(e) |
|
6.07 |
| 316(a) |
|
6.06
8.04 |
| 316(b) |
|
6.04 |
| 316(c) |
|
8.01 |
| 317(a) |
|
6.02 |
| 317(b) |
|
4.03 |
| 318(a) |
|
13.09 |
2
This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation
of any of its terms or provisions.
Exhibit 4.3
BRAINSTORM CELL THERAPEUTICS INC.,
Issuer
AND
[TRUSTEE],
Trustee
INDENTURE
Dated as of [●], 202[●]
Subordinated Debt Securities
TABLE OF CONTENTS1
| Article 1 |
DEFINITIONS |
1 |
| |
| |
|
|
| Section 1.01 | |
Definitions of Terms. |
1 |
| |
| |
|
|
| Article 2 |
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
4 |
| |
| |
|
|
| Section 2.01 | |
Designation and Terms of Securities. |
4 |
| Section 2.02 | |
Form of Securities and Trustee’s
Certificate. |
6 |
| Section 2.03 | |
Denominations: Provisions for
Payment. |
6 |
| Section 2.04 | |
Execution and Authentications. |
8 |
| Section 2.05 | |
Registration of Transfer and
Exchange. |
8 |
| Section 2.06 | |
Temporary Securities. |
9 |
| Section 2.07 | |
Mutilated, Destroyed, Lost or
Stolen Securities. |
9 |
| Section 2.08 | |
Cancellation. |
10 |
| Section 2.09 | |
Benefits of Indenture. |
10 |
| Section 2.10 | |
Authenticating Agent. |
10 |
| Section 2.11 | |
Global Securities. |
11 |
| |
| |
|
|
| Article 3 |
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
12 |
| |
| |
|
|
| Section 3.01 | |
Redemption. |
12 |
| Section 3.02 | |
Notice of Redemption. |
12 |
| Section 3.03 | |
Payment Upon Redemption. |
13 |
| Section 3.04 | |
Sinking Fund. |
13 |
| Section 3.05 | |
Satisfaction of Sinking Fund
Payments with Securities. |
13 |
| Section 3.06 | |
Redemption of Securities for
Sinking Fund. |
13 |
| |
| |
|
|
| Article 4 |
COVENANTS |
14 |
| |
| |
|
|
| Section 4.01 | |
Payment of Principal, Premium
and Interest. |
14 |
| Section 4.02 | |
Maintenance of Office or Agency. |
14 |
| Section 4.03 | |
Paying Agents. |
14 |
| Section 4.04 | |
Appointment to Fill Vacancy
in Office of Trustee. |
15 |
| Section 4.05 | |
Compliance with Consolidation
Provisions. |
15 |
| |
| |
|
|
| Article 5 |
SECURITYHOLDERS ’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
15 |
| |
| |
|
|
| Section 5.01 | |
Company to Furnish Trustee Names
and Addresses of Securityholders. |
15 |
| Section 5.02 | |
Preservation Of Information;
Communications With Securityholders. |
16 |
| Section 5.03 | |
Reports by the Company. |
16 |
| Section 5.04 | |
Reports by the Trustee. |
16 |
| |
| |
|
|
| Article 6 |
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
17 |
| |
| |
|
|
| Section 6.01 | |
Events of Default. |
17 |
| Section 6.02 | |
Collection of Indebtedness and
Suits for Enforcement by Trustee. |
18 |
| Section 6.03 | |
Application of Moneys Collected. |
19 |
| Section 6.04 | |
Limitation on Suits. |
19 |
| Section 6.05 | |
Rights and Remedies Cumulative;
Delay or Omission Not Waiver. |
20 |
| Section 6.06 | |
Control by Securityholders. |
20 |
| Section 6.07 | |
Undertaking to Pay Costs. |
20 |
| |
| |
|
|
| Article 7 |
CONCERNING THE TRUSTEE |
21 |
| |
| |
|
|
| Section 7.01 | |
Certain Duties and Responsibilities
of Trustee. |
21 |
| Section 7.02 | |
Certain Rights of Trustee. |
22 |
1 This Table of Contents
does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
| Section 7.03 | |
Trustee Not Responsible for
Recitals or Issuance or Securities. |
23 |
| Section 7.04 | |
May Hold Securities. |
23 |
| Section 7.05 | |
Moneys Held in Trust. |
23 |
| Section 7.06 | |
Compensation and Reimbursement. |
23 |
| Section 7.07 | |
Reliance on Officer’s
Certificate or Opinion of Counsel. |
24 |
| Section 7.08 | |
Disqualification; Conflicting
Interests. |
24 |
| Section 7.09 | |
Corporate Trustee Required;
Eligibility. |
24 |
| Section 7.10 | |
Resignation and Removal; Appointment
of Successor. |
25 |
| Section 7.11 | |
Acceptance of Appointment By
Successor. |
25 |
| Section 7.12 | |
Merger, Conversion, Consolidation
or Succession to Business. |
26 |
| Section 7.13 | |
Preferential Collection of Claims
Against the Company. |
27 |
| Section 7.14 | |
Notice of Default. |
27 |
| |
| |
|
|
| Article 8 |
CONCERNING THE SECURITYHOLDERS |
27 |
| |
| |
|
|
| Section 8.01 | |
Evidence of Action by Securityholders. |
27 |
| Section 8.02 | |
Proof of Execution by Securityholders. |
27 |
| Section 8.03 | |
Who May be Deemed Owners. |
28 |
| Section 8.04 | |
Certain Securities Owned by
Company Disregarded. |
28 |
| Section 8.05 | |
Actions Binding on Future Securityholders. |
28 |
| |
| |
|
|
| Article 9 |
SUPPLEMENTAL INDENTURES |
28 |
| |
| |
|
|
| Section 9.01 | |
Supplemental Indentures Without
the Consent of Securityholders. |
28 |
| Section 9.02 | |
Supplemental Indentures With
Consent of Securityholders. |
29 |
| Section 9.03 | |
Effect of Supplemental Indentures. |
30 |
| Section 9.04 | |
Securities Affected by Supplemental
Indentures. |
30 |
| Section 9.05 | |
Execution of Supplemental Indentures. |
30 |
| |
| |
|
|
| Article 10 |
SUCCESSOR ENTITY |
30 |
| |
| |
|
|
| Section 10.01 | |
Company May Consolidate, Etc. |
30 |
| Section 10.02 | |
Successor Entity Substituted. |
31 |
| |
| |
|
|
| Article 11 |
SATISFACTION AND DISCHARGE |
31 |
| |
| |
|
|
| Section 11.01 | |
Satisfaction and Discharge of
Indenture. |
31 |
| Section 11.02 | |
Discharge of Obligations. |
32 |
| Section 11.03 | |
Deposited Moneys to be Held
in Trust. |
32 |
| Section 11.04 | |
Payment of Moneys Held by Paying
Agents. |
32 |
| Section 11.05 | |
Repayment to Company. |
32 |
| |
| |
|
|
| Article 12 |
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
33 |
| |
| |
|
|
| Section 12.01 | |
No Recourse. |
33 |
| |
| |
|
|
| Article 13 |
MISCELLANEOUS PROVISIONS |
33 |
| |
| |
|
|
| Section 13.01 | |
Effect on Successors and Assigns. |
33 |
| Section 13.02 | |
Actions by Successor. |
33 |
| Section 13.03 | |
Surrender of Company Powers. |
33 |
| Section 13.04 | |
Notices. |
33 |
| Section 13.05 | |
Governing Law; Jury Trial Waiver. |
34 |
| Section 13.06 | |
Treatment of Securities as Debt. |
34 |
| Section 13.07 | |
Certificates and Opinions as
to Conditions Precedent. |
34 |
| Section 13.08 | |
Payments on Business Days. |
34 |
| Section 13.09 | |
Conflict with Trust Indenture
Act. |
34 |
| Section 13.10 | |
Counterparts. |
35 |
| Section 13.11 | |
Separability. |
35 |
| Section 13.12 | |
Compliance Certificates. |
35 |
| Section 13.13 | |
USA PATRIOT ACT. |
35 |
| Section 13.14 | |
Calculations. |
35 |
| |
| |
|
|
| Article 14 |
SUBORDINATION OF SECURITIES |
35 |
| |
|
|
|
|
| Section 14.01 |
|
Subordination Terms. |
35 |
| |
|
|
|
|
| TRUST INDENTURE ACT CROSS-REFERENCE TABLE |
INDENTURE
INDENTURE, dated as of [●], 202[●]
, among BRAINSTORM CELL THERAPEUTICS INC., a Delaware corporation (the “Company”), and [TRUSTEE] as trustee
(the “Trustee”):
WHEREAS, for its lawful corporate purposes,
the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of subordinated debt securities
(hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued from time to
time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated by the certificate
of the Trustee;
WHEREAS, to provide the terms and conditions
upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution of this Indenture;
and
WHEREAS, all things necessary to make this
Indenture a valid and binding agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the
premises and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal and
ratable benefit of the holders of Securities:
Article 1
DEFINITIONS
Section 1.01
Definitions of Terms.
The terms defined in this Section (except as in
this Indenture or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires) for all purposes
of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section and shall include
the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939, as amended,
or that are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein or any indenture supplemental
hereto otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of the execution of this instrument.
“Authenticating Agent” means
an authenticating agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to Section 2.10.
“Bankruptcy Law” means Title
11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board of Directors” means
the Board of Directors (or the functional equivalent thereof) of the Company or any duly authorized committee of such Board.
“Board Resolution” means a
copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification and delivered to the Trustee.
“Business Day” means, with
respect to any series of Securities, any day other than a day on which federal or state banking institutions in the Borough of Manhattan,
the City of New York, or at a place of payment, are authorized or obligated by law, executive order or regulation to close.
“Commission” means the Securities
and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing
such duties at such time.
“Company” means BrainStorm
Cell Therapeutics Inc., a corporation duly organized and existing under the laws of the State of Delaware, and, subject to the provisions
of Article 10, shall also include its successors and assigns.
“Company Order” means a written
order of the Company, signed by an Officer of the Company, and delivered to the Trustee.
“Corporate Trust Office” means
the office of the Trustee at which, at any particular time, its corporate trust business shall be administered, which office at the date
hereof is located at .
“Custodian” means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Defaulted Interest” has the
meaning set forth in Section 2.03.
“Depositary” means, with respect
to Securities of any series for which the Company shall determine that such Securities will be issued as a Global Security, The Depository
Trust Company, another clearing agency, or any successor registered as a clearing agency under the Exchange Act, or other applicable statute
or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01 or 2.11.
“Event of Default” means, with
respect to Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any, therein
designated.
“Exchange Act” means the United
States Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Commission thereunder.
“Global Security” means a Security
issued to evidence all or a part of any series of Securities which is executed by the Company and authenticated and delivered by the Trustee
to the Depositary or pursuant to the Depositary’s instruction, all in accordance with the Indenture, which shall be registered in
the name of the Depositary or its nominee.
“Governmental Obligations”
means securities that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is
pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America that,
in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated maturity of the applicable
series of Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian for
the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation
evidenced by such depositary receipt.
“herein”, “hereof”
and “hereunder”, and other words of similar import, refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
“Indenture” means this instrument
as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered
into in accordance with the terms hereof and shall include the terms of particular series of Securities established as contemplated by
Section 2.01.
“Interest Payment Date”, when
used with respect to any installment of interest on a Security of a particular series, means the date specified in such Security or in
a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment of interest
with respect to Securities of that series is due and payable.
“Officer” means, with respect
to the Company, the Chairman of the Board of Directors, a Chief Executive Officer, a President, a Chief Financial Officer, a Chief Operating
Officer, any Executive Vice President, any Senior Vice President, any Vice President, the Treasurer or any Assistant Treasurer, the Controller
or any Assistant Controller or the Secretary or any Assistant Secretary.
“Officer’s Certificate”
means a certificate signed by any Officer. Each such certificate shall include the statements provided for in Section 13.07, if
and to the extent required by the provisions thereof.
“Opinion of Counsel” means
an opinion in writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company, that is
delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section
13.07, if and to the extent required by the provisions thereof.
“Outstanding”, when used with
reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all Securities
of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled
by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously been canceled;
(b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary amount shall
have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated
in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if such Securities or
portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided
in Article 3, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities in lieu
of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person” means any individual,
corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated organization,
any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor Security” of any
particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost, destroyed
or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible Officer” when
used with respect to the Trustee means any officer within the corporate trust department of the Trustee, including any vice president,
assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate
trust matter relating to this Indenture is referred because of such person’s knowledge of and familiarity with the particular subject
and, in each case, who shall have direct responsibility for the administration of this Indenture (which, for the avoidance of doubt, includes
without limitation any supplemental indenture hereto).
“Securities” has the meaning
stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Securityholder”, “holder”,
“registered holder”, or other similar term, means the Person or Persons in whose name or names a particular Security
is registered on the Security Register kept for that purpose in accordance with the terms of this Indenture.
“Security Register” and “Security
Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary” means, with respect
to any Person:
(1)
any corporation or company a majority of whose capital stock with voting power, under ordinary circumstances, to elect directors
is, at the date of determination, directly or indirectly, owned by such Person (a “subsidiary”), by one or more subsidiaries
of such Person or by such Person and one or more subsidiaries of such Person;
(2)
a partnership in which such Person or a subsidiary of such Person is, at the date of determination, a general partner of
such partnership; or
(3)
any partnership, limited liability company or other Person in which such Person, a subsidiary of such Person or such Person
and one or more subsidiaries of such Person, directly or indirectly, at the date of determination, have (x) at least a majority ownership
interest or (y) the power to elect or appoint or direct the election or appointment of the managing partner or member of such Person or,
if applicable, a majority of the directors or other governing body of such Person.
“Trustee” means , and, subject
to the provisions of Article 7, shall also include its successors and assigns, and, if at any time there is more than one Person
acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with respect
to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture Act” means
the Trust Indenture Act of 1939, as amended and in effect from time to time.
“U.S. dollar” or “$”
means the lawful currency of the United States of America.
Article 2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01
Designation and Terms of Securities.
(a)
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time
authorized by or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance
of Securities of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate
or established in one or more indentures supplemental hereto:
(1)
the title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2)
any limit upon the aggregate principal amount of the Securities of that series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of that series);
(3)
the date or dates on which the principal of the Securities of the series is payable;
(4)
if the price (expressed as a percentage of the aggregate principal amount thereof) at which such Securities will be issued
is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration
of the maturity thereof, or if applicable, the portion of the principal amount of such Securities that is convertible into another security
or the method by which any such portion shall be determined;
(5)
the rate or rates at which the Securities of the series shall bear interest or the manner of calculation of such rate or
rates, if any;
(6)
the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest will be payable
or the manner of determination of such Interest Payment Dates, the place(s) of payment, and the record date for the determination of holders
to whom interest is payable on any such Interest Payment Dates or the manner of determination of such record dates;
(7)
the right, if any, to extend the interest payment periods and the duration of such extension;
(8)
the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the
series may be redeemed, converted or exchanged, in whole or in part;
(9)
the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund, mandatory
redemption, or analogous provisions (including payments made in cash in satisfaction of future sinking fund obligations) or at the option
of a holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon which, Securities
of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(10)
the form of the Securities of the series including the form of the Certificate of Authentication for such series;
(11)
if other than minimum denominations of one thousand U.S. dollars ($1,000) or any integral multiple of $1,000 thereof, the
denominations in which the Securities of the series shall be issuable;
(12)
any and all other terms (including terms, to the extent applicable, relating to any auction or remarketing of the Securities
of that series and any security for the obligations of the Company with respect to such Securities) with respect to such series (which
terms shall not be inconsistent with the terms of this Indenture, as amended by any supplemental indenture) including any terms which
may be required by or advisable under United States laws or regulations or advisable in connection with the marketing of Securities of
that series;
(13)
whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities;
the terms and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual
Securities; and the Depositary for such Global Security or Securities;
(14)
whether the Securities will be convertible into or exchangeable for shares of common stock, preferred stock or other securities
of the Company or any other Person and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable,
including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional
(at the Company’s option or the holders’ option) conversion or exchange features, and the applicable conversion or exchange
period;
(15)
if other than the full principal amount thereof, the portion of the principal amount of Securities of the series which shall
be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(16)
any additional or alternative Events of Default;
(17)
additional or alternative covenants (which may include, among other restrictions, restrictions on the Company’s ability
or the ability of the Company’s Subsidiaries to: incur additional indebtedness; issue additional securities; create liens; pay dividends
or make distributions in respect of the capital stock of the Company or the Company’s Subsidiaries; redeem capital stock; place
restrictions on the Company’s Subsidiaries’ ability to pay dividends, make distributions or transfer assets; make investments
or other restricted payments; sell or otherwise dispose of assets; enter into sale-leaseback transactions; engage in transactions with
stockholders or affiliates; issue or sell stock of the Company’s Subsidiaries; or effect a consolidation or merger) or financial
covenants (which may include, among other financial covenants, financial covenants that require the Company and its Subsidiaries to maintain
specified interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios) provided for with respect to the Securities
of the series;
(18)
the currency or currencies, including composite currencies, in which payment of the principal of (and premium, if any) and
interest, if any, on such Securities shall be payable (if other than the currency of the United States of America), which unless otherwise
specified shall be the currency of the United States of America as at the time of payment is legal tender for payment of public or private
debts;
(19)
if the principal of (and premium, if any) or interest, if any, on such Securities is to be payable, at the election of the
Company or any holder thereof, in a coin or currency other than that in which such Securities are stated to be payable, then the period
or periods within which, and the terms and conditions upon which, such election may be made;
(20)
whether interest will be payable in cash or additional Securities at the Company’s or the Securityholders’ option
and the terms and conditions upon which the election may be made;
(21)
the terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium,
if any and principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for
federal tax purposes;
(22)
additional or alternative provisions, if any, related to defeasance and discharge of the offered Securities;
(23)
the applicability of any guarantees;
(24)
any restrictions on transfer, sale or assignment of the Securities of the series; and (25) any other terms of the series.
All Securities of any one series shall be substantially
identical except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures supplemental hereto.
If any of the terms of the series are established
by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the
secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate
of the Company setting forth the terms of the series.
Securities of any particular series may be issued
at various times, with different dates on which the principal or any installment of principal is payable, with different rates of interest,
if any, or different methods by which rates of interest may be determined, with different dates on which such interest may be payable
and with different redemption dates.
Section 2.02
Form of Securities and Trustee’s Certificate.
The Securities of any series and the Trustee’s
certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one or more
indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officer’s Certificate, and they may have
such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on
which Securities of that series may be listed, or to conform to usage.
Section 2.03
Denominations: Provisions for Payment.
The Securities shall be issuable as registered
Securities and in the minimum denominations of one thousand U.S. dollars ($1,000) or any integral multiple of $1,000 thereof, subject
to Section 2.01(a)(11). The Securities of a particular series shall bear interest payable on the dates and at the rate specified with
respect to that series. Subject to Section 2.01(a)(18), the principal of and the interest on the Securities of any series, as well
as any premium thereon in case of redemption thereof prior to maturity, shall be payable in the coin or currency of the United States
of America that at the time is legal tender for public and private debt, at the office or agency of the Company maintained for that purpose.
Each Security shall be dated the date of its authentication. Interest on the Securities shall be computed on the basis of a 360-day year
composed of twelve 30-day months.
The interest installment on any Security that
is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid to the
Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business on the regular record
date for such interest installment. In the event that any Security of a particular series or portion thereof is called for redemption
and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment
Date, interest on such Security will be paid upon presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause (1) or clause (2) below:
(1)
The Company may elect to make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities
(or their respective Predecessor Securities) are registered at the close of business on a special record date for the payment of such
Defaulted Interest, which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Company shall fix
a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date
of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Company
shall promptly notify the Trustee in writing of such special record date and in such notice, instruct the Trustee to send such notice
to holders, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be sent electronically or mailed, first class postage prepaid, to each Securityholder at his or her address
as it appears in the Security Register (as hereinafter defined), not less than 10 days prior to such special record date. Notice of the
proposed payment of such Defaulted Interest and the special record date therefor having been sent as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered on such special
record date.
(2)
The Company may make or cause to be made payment of any Defaulted Interest on any Securities in any other lawful manner
not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution
or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof,
the term “regular record date” as used in this Section with respect to a series of Securities and any Interest Payment Date
for such series shall mean either (i) the fifteenth day of the month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of a month,
or (ii) the first day of the month in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section,
each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security of such
series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04
Execution and Authentications.
The Securities shall be signed on behalf of the
Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature of
any Person who shall have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated and delivered
or disposed of such Person shall have ceased to be such an officer of the Company. The Securities may contain such notations, legends
or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication by the Trustee.
A Security shall not be valid until authenticated
manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this
Indenture. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery
of such Securities, signed by an Officer, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities.
In authenticating such Securities and accepting
the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall receive, and (subject to Section
7.01) shall be fully protected in conclusively relying upon, an Officer’s Certificate and an Opinion of Counsel stating that
the form and terms thereof have been established in conformity with the provisions of this Indenture, that all conditions precedent in
connection with the issuance, authentication and delivery of such Securities have been met and that such Securities are legal, valid and
binding obligations against the Company, enforceable against it in accordance with its terms, subject to customary exceptions and qualifications.
The Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05
Registration of Transfer and Exchange.
(a)
Securities of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for
such purpose, for other Securities of such series of authorized denominations, and for a like aggregate principal amount, upon payment
of a sum sufficient to cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of
any Securities so surrendered for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall
deliver in exchange therefor the Security or Securities of the same series that the Securityholder making the exchange shall be entitled
to receive, bearing numbers not contemporaneously outstanding.
(b)
The Company shall keep, or cause to be kept, at its office or agency designated for such purpose a register or registers
(herein referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe,
the Company shall register the Securities and the transfers of Securities as in this Article provided and which at all reasonable times
shall be open for inspection by the Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein
provided shall be appointed as authorized by Board Resolution (the “Security Registrar”).
Upon surrender for transfer of any Security at
the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and such office
or agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series as the Security presented
for a like aggregate principal amount.
All Securities presented or surrendered for exchange
or registration of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the Security Registrar)
by a written instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar, duly executed by the
registered holder or by such holder’s duly authorized attorney in writing.
(c)
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate,
or established in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration
of transfer of Securities, or issue of new Securities in case of partial redemption of any series, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06,
Section 3.03(b) and Section 9.04 not involving any transfer.
(d)
The Company shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding Securities
of the same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or exchange any
Securities of any series or portions thereof called for redemption, other than the unredeemed portion of any such Securities being redeemed
in part. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Security (including any transfers between or among depositary participants or beneficial
owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
Neither the Trustee nor any Agent shall have any
responsibility or liability for any actions taken or not taken by the Depositary.
Section 2.06
Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall, upon receipt of a Company Order, authenticate and deliver, temporary Securities
(printed, lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the form of
the definitive Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed by the Company
and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive
Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series and
thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to the holders), at the
office or agency of the Company designated for the purpose, and the Trustee shall, upon receipt of a Company Order, authenticate and such
office or agency shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities
of such series, unless the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until
further notice from the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under
this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section 2.07
Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall
become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and upon receipt
of a Company Order the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series, bearing a number
not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft of the
applicant’s Security and of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same
upon receipt of a Company Order. Upon the issuance of any substituted Security, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses
of the Trustee) connected therewith.
In case any Security that has or is about to become
due and payable, whether upon maturity of the Securities of a series or upon declaration or otherwise shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish to the Company and the Trustee such
security or indemnity as they may require to save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction
of the Company and the Trustee of the destruction, loss or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant to
the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not the mutilated, destroyed,
lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities shall be held and
owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights or remedies, notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
Section 2.08
Cancellation.
All Securities surrendered for the purpose of
payment, redemption, exchange or registration of transfer shall, if surrendered to the Company or any paying agent, be delivered to the
Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof
except as expressly required or permitted by any of the provisions of this Indenture. On written request of the Company at the time of
such surrender, the Trustee shall deliver to the Company evidence of cancellation for such canceled Securities held by the Trustee. The
Trustee shall cancel and dispose of canceled Securities in accordance with its standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any of the Securities, however, such acquisition shall not operate as a redemption
or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.09
Benefits of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities
(and, with respect to the provisions of Article 14, the holders of any indebtedness of the Company to which the Securities of any
series are subordinated) any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the
holders of the Securities (and, with respect to the provisions of Article 14, the holders of any indebtedness of the Company to
which the Securities of any series are subordinated).
Section 2.10
Authenticating Agent.
So long as any of the Securities of any series
remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall have the right
to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued
upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this Indenture to the
authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating Agent for such series. Each
Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital and surplus, as most recently
reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized or in which it is doing business
to conduct a trust business, and that is otherwise authorized under such laws to conduct such business and is subject to supervision or
examination by federal or state authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance with these
provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign
by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request by the Company
shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the
Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall
become vested with all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating Agent pursuant
hereto.
Section 2.11
Global Securities.
(a)
If the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued
as a Global Security, then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver,
a Global Security that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the
Outstanding Securities of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered
by the Trustee to the Depositary or held by it, pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially
to the following effect: “Except as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred,
in whole but not in part, only to another nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
(b)
Notwithstanding the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but
not in part and in the manner provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor
Depositary for such series selected or approved by the Company or to a nominee of such successor Depositary.
(c)
If at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue
as Depositary for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under
the Exchange Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default
has occurred and is continuing and the Company has received a request from the Depositary or from the Trustee, this Section 2.11
shall no longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee
will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security.
In addition, the Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security
and that the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company
will execute and, subject to Section 2.04, the Trustee, upon receipt of an Officer’s Certificate and a Company Order evidencing
such determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series
in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive registered form without
coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form
issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee
in writing. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities are
so registered.
Article 3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01
Redemption.
The Company may redeem the Securities of any series
issued hereunder on and after the dates and in accordance with the terms established for such series pursuant to Section 2.01 hereof.
Section 3.02
Notice of Redemption.
(a)
In case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities
of any series in accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company
shall, or shall cause the Trustee (upon 5 Business Days written notice, unless a shorter period shall be satisfactory to the Trustee)
to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, electronically or by first class
postage prepaid mail, a notice of such redemption not less than 15 days and not more than 90 days, except that redemption notices may
be sent more than 90 days prior to the redemption date if the notice is issued in connection with a defeasance of the Securities or a
satisfaction and discharge, before the date fixed for redemption of that series to such holders (with a copy to the Trustee) at their
last addresses as they shall appear upon the Security Register, unless a shorter period is specified in the Securities to be redeemed.
Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give such notice to the holder of any Security of any series designated for redemption
in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities
of such series or any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s
Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the
date fixed for redemption, if applicable, any record date with respect to such redemption and the redemption price at which Securities
of that series are to be redeemed, and shall state that payment of the redemption price of such Securities to be redeemed will be made
at the office or agency of the Company, upon presentation and surrender of such Securities, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, that from and after said date interest will cease to accrue and that the redemption
is from a sinking fund, if such is the case. If less than all the Securities of a series are to be redeemed, the notice to the holders
of Securities of that series to be redeemed in part shall specify the particular Securities to be so redeemed.
In case any Security is to be redeemed in part
only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed, and shall state
that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series in principal amount
equal to the unredeemed portion thereof will be issued.
(b)
If less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 20 days’
notice (unless a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as
it shall deem appropriate and fair in its discretion (and subject to the applicable procedures of the Depositary) and that may provide
for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof) of the principal
amount of such Securities of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify the
Company in writing of the numbers of the Securities to be redeemed, in whole or in part. The Company may, if and whenever it shall so
elect, by delivery of instructions signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or any part
of the Securities of a particular series for redemption and to send notice of redemption in the manner set forth in this Section, such
notice to be in the name and at the expense of the Company. In any case in which notice of redemption is to be sent by the Trustee or
any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying agent,
as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable
the Trustee or such paying agent to give any notice by mail that may be required under the provisions of this Section.
Section 3.03
Payment Upon Redemption.
(a)
If the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities
of the series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice
at the applicable redemption price, together with interest accrued to the date fixed for redemption and interest on such Securities or
portions of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment
of such redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such
Securities on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid and
redeemed at the applicable redemption price for such series, together with interest accrued thereon to the date fixed for redemption (but
if the date fixed for redemption is an interest payment date, the interest installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date pursuant to Section 2.03).
(b)
Upon presentation of any physical Security of such series that is to be redeemed in part only, the Company shall execute
and the Trustee shall authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the
expense of the Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion
of the Security so presented.
Section 3.04
Sinking Fund.
The provisions of Sections 3.04, 3.05
and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified as
contemplated by Section 2.01 for Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any
payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities
of any series as provided for by the terms of Securities of such series.
Section 3.05
Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities
of a series and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms of such series, provided that such Securities have
not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the redemption price
specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be
reduced accordingly.
Section 3.06
Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund
payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to
the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to
the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities of that series pursuant
to Section 3.05 and the basis for such credit and will, together with such Officer’s Certificate, deliver to the Trustee
any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities
to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 and cause notice of the redemption thereof
to be given in the name of and at the expense of the Company in the manner provided in Section 3.02. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 3.03.
Article 4
COVENANTS
Section 4.01
Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or cause
to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and place and in the manner
provided herein and established with respect to such Securities. Payments of principal on the physical Securities may be made at the time
provided herein and established with respect to such Securities by U.S. dollar check drawn on and mailed to the address of the Securityholder
entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account if such
Securityholder shall have furnished wire instructions to the Trustee no later than 15 days prior to the relevant payment date. Payments
of interest on the Securities may be made at the time provided herein and established with respect to such Securities by U.S. dollar check
mailed to the address of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire
transfer to an account in the United States if such Securityholder shall have furnished wire instructions in writing to the Security Registrar
and the Trustee no later than 15 days prior to the relevant payment date.
Section 4.02
Maintenance of Office or Agency.
So long as any series of the Securities remain
Outstanding, the Company agrees to maintain an office or agency with respect to each such series and at such other location or locations
as may be designated as provided in this Section 4.02, where (i) Securities of that series may be presented for payment, (ii) Securities
of that series may be presented as herein above authorized for registration of transfer and exchange, and (iii) notices in respect of
the Securities of that series and this Indenture may be given or made, such designation to continue with respect to such office or agency
until the Company shall, by written notice in an Officer’s Certificate and delivered to the Trustee, designate some other office
or agency for such purposes or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations and notices may be made at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations and notices; provided, however, the
Trustee shall not be considered an agent of the Company for service of process.
Section 4.03
Paying Agents.
(a)
If the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee,
the Company will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with
the Trustee, subject to the provisions of this Section:
(1)
that it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest
on the Securities of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in
trust for the benefit of the Persons entitled thereto;
(2)
that it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make
any payment of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3)
that it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon
the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent;
(4)
that upon any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition
or judicial proceedings affecting the Company, the Trustee will automatically be the Paying Agent; and
(5)
that it will perform all other duties of paying agent as set forth in this Indenture.
(b)
If the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each
due date of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on
Securities of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company
shall have one or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if
any) or interest on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c)
Notwithstanding anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section
is subject to the provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust
by the Company or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums
were held by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or
such paying agent shall be released from all further liability with respect to such money.
(d)
The Company initially appoints the Trustee at its Corporate Trust Office as its paying agent with respect to the Securities.
Section 4.04
Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill
a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all
times be a Trustee hereunder.
Section 4.05
Compliance with Consolidation Provisions.
The Company will not, while any of the Securities
remain Outstanding, consolidate with or merge into any other Person, in either case where the Company is not the survivor of such transaction,
or sell or convey all or substantially all of its property to any other Person unless the provisions of Article 10 hereof are complied
with.
Article 5
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01
Company to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish or cause to be furnished
to the Trustee (a) within 5 days after each regular record date (as defined in Section 2.03) a list, in such form as the Trustee
may reasonably require, of the names and addresses of the holders of each series of Securities as of such regular record date, provided
that the Company shall not be obligated to furnish or cause to be furnished such list at any time that the list shall not differ in any
respect from the most recent list furnished to the Trustee by the Company and (b) at such other times as the Trustee may request in writing
within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished; provided, however, that, in either case, no such list need be furnished for
any series for which the Trustee shall be the Security Registrar.
Section 5.02
Preservation Of Information; Communications With Securityholders.
(a)
The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses
of the holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names
and addresses of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b)
The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c)
Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with
respect to their rights under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall
satisfy its obligations under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust
Indenture Act.
Section 5.03
Reports by the Company.
(a)
The Company covenants and agrees to provide (which delivery may be via electronic mail) to the Trustee within 30 days, after
the Company files the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) that the Company
is required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however,
the Company shall not be required to deliver to the Trustee any materials for which the Company has sought and received confidential treatment
by the Commission; and provided further, that so long as such filings by the Company are available on the Commission’s Electronic
Data Gathering, Analysis and Retrieval System (EDGAR), or Interactive Data Electronic Applications (IDEA), or any successor system, such
filings shall be deemed to have been filed with the Trustee for purposes hereof without any further action required by the Company; provided
that an electronic link to such filing, together with an electronic notice of such filing have been sent to the Trustee it being understood
that the Trustee shall have no responsibility to determine whether such filings have been made. For the avoidance of doubt, a failure
by the Company to file annual reports, information and other reports with the Commission within the time period prescribed thereof by
the Commission shall not be deemed a breach of this Section 5.03.
(b)
Delivery of reports, information and documents to the Trustee under Section 5.03 is for informational purposes only
and the information and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained
therein, or determinable from information contained therein including the Company’s compliance with any of their covenants thereunder
(as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate).
Section 5.04
Reports by the Trustee.
(a)
If required by Section 313(a) of the Trust Indenture Act, the Trustee, within sixty (60) days after each May 15, commencing
the calendar year after the year in which the first Securities are issued hereunder, shall transmit by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear upon the Security Register, a brief report dated as of such May 15, which
complies with Section 313(a) of the Trust Indenture Act.
(b)
The Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c)
A copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the
Company, with each securities exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees
to notify the Trustee in writing when any Securities become listed on any securities exchange or of any delisting thereof.
Article 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01
Events of Default.
(a)
Whenever used herein with respect to Securities of a particular series, “Event of Default” means any one or
more of the following events that has occurred and is continuing:
(1)
the Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when
the same shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of
an interest payment period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default
in the payment of interest for this purpose;
(2)
the Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as
and when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required
by any sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity of
such Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal
or premium, if any;
(3)
the Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in
this Indenture or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a
covenant or agreement that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other
than such series) for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and
stating that such notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee or
to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time Outstanding;
(4)
the Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the
entry of an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property or (iv) makes a general assignment for the benefit of its creditors; or
(5)
a court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in
an involuntary case, (ii) appoints a Custodian of the Company for all or substantially all of its property or (iii) orders the liquidation
of the Company, and the order or decree remains unstayed and in effect for 90 days.
(b)
In each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal
of all the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest
on all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall
be immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of and accrued
and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without any declaration or
other act on the part of the Trustee or the holders of the Securities.
(c)
At any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series
shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company
has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of that series
and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise than by acceleration
(with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per annum expressed in the Securities of that series to the date of such payment or deposit)
and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture with respect
to such series, other than the nonpayment of principal on (and premium, if any, on) and accrued and unpaid interest on Securities of that
series that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.06.
No such rescission and annulment shall extend
to or shall affect any subsequent default or impair any right consequent thereon.
(d)
In case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture
and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall
have been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the Company
and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee shall continue as though no such proceedings had been taken.
Section 6.02
Collection of Indebtedness and Suits for Enforcement by Trustee.
(a)
The Company covenants that if an Event of Default described in Section 6.01(a) or 6.01(b) shall have occurred with respect
to the Securities of any series, the Company will pay to the Trustee, for the benefit of the holders of the Securities of that series,
the whole amount that then shall have been become due and payable on all such Securities for principal (and premium, if any) or interest,
or both, as the case may be, with interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest
is enforceable under applicable law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series;
and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable
to the Trustee under Section 7.06.
(b)
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of
an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the
sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment
or final decree against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to
be payable in the manner provided by law or equity out of the property of the Company or other obligor upon the Securities of that series,
wherever situated.
(c)
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition
or judicial proceedings affecting the Company, or its creditors or property, irrespective of whether the Trustee shall have made any demand
pursuant to this Section 6.02, the Trustee shall have power to intervene in such proceedings and take any action therein that may be permitted
by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim and other papers and documents
as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities of such series allowed for
the entire amount due and payable by the Company under the Indenture at the date of institution of such proceedings and for any additional
amount that may become due and payable by the Company after such date, and to collect and receive any moneys or other property payable
or deliverable on any such claim, and to distribute the same after the deduction of the amount payable to the Trustee under Section
7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the holders of Securities
of such series to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly
to such Securityholders, to pay to the Trustee any amount due it under Section 7.06.
(d)
All rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to
Securities of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof
at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due
under Section 7.06, be for the ratable benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder, the
Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained in the Indenture or in aid of the exercise of any power granted
in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities of that series or the rights of any holder thereof or to authorize the Trustee to vote in respect
of the claim of any Securityholder in any such proceeding.
Section 6.03
Application of Moneys Collected.
Any moneys or properties collected by the Trustee
pursuant to this Article with respect to a particular series of Securities shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium, if any) or interest, upon presentation
of the Securities of that series, and notation thereon of the payment, if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all indebtedness
of the Company to which such series of Securities is subordinated to the extent required by Section 7.06 and any subordination
terms of the series specified as contemplated by Article 14;
SECOND: To the payment of the amounts then
due and unpaid upon Securities of such series for principal (and premium, if any) and interest, in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable
on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder,
if any, to the Company or any other Person lawfully entitled thereto.
Section 6.04
Limitation on Suits.
No holder of any Security of any series shall
have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder,
unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof
with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided; (ii) the holders of not less
than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii) such holder or holders shall have offered to
the Trustee such indemnity reasonably satisfactory to it as it may require against the costs, expenses, claims and liabilities to be incurred
therein or thereby; (iv) the Trustee for 90 days after its receipt of such notice, request and offer of indemnity, shall have failed to
institute any such action, suit or proceeding and (v) during such 90 day period, the holders of a majority in principal amount of the
Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein to the
contrary or any other provisions of this Indenture, the right of any holder of any Security to receive payment of the principal of (and
premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed in such Security (or
in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment on or after such respective
dates or redemption date, shall not be impaired or affected without the consent of such holder and by accepting a Security hereunder it
is expressly understood, intended and covenanted by the taker and holder of every Security of such series with every other such taker
and holder and the Trustee, that no one or more holders of Securities of such series shall have any right in any manner whatsoever by
virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the holders of any other of such
Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture
(it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly
prejudicial to such holders), except in the manner herein provided and for the equal, ratable and common benefit of all holders of Securities
of such series. For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Section 6.05
Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a)
Except as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to
the Securityholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available
to the Trustee or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established with respect to such Securities.
(b)
No delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon
any Event of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver
of any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by
this Article or by law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee or by the Securityholders.
Section 6.06
Control by Securityholders.
The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04, shall have the right
to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to such series; provided, however, that such direction shall not be in conflict
with any rule of law or with this Indenture or subject the Trustee in its sole discretion to personal liability. The Trustee shall have
the right to decline to follow any such direction if the Trustee in good faith shall determine that the proceeding so directed, subject
to the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial
to the Securityholders not involved in the proceeding. Prior to taking any action under this Indenture, the Trustee shall be entitled
to indemnity or security satisfactory to it against loss, liability or expense that may be caused by taking such action. The holders of
a majority in aggregate principal amount of the Securities of any series at the time Outstanding affected thereby, determined in accordance
with Section 8.04, may on behalf of the holders of all of the Securities of such series waive any past default in the performance
of any of the covenants contained herein or established pursuant to Section 2.01 with respect to such series and its consequences,
except a default in the payment of the principal of, or premium, if any, or interest on, any of the Securities of that series as and when
the same shall become due by the terms of such Securities otherwise than by acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal and any premium has been deposited with the Trustee (in accordance
with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes of this Indenture
and the Company, the Trustee and the holders of the Securities of such series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 6.07
Undertaking to Pay Costs.
All parties to this Indenture agree, and each
holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant
in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of Securityholders,
holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or to any suit instituted by any Securityholder
for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this Indenture.
Article 7
CONCERNING THE TRUSTEE
Section 7.01
Certain Duties and Responsibilities of Trustee.
(a)
The Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing
of all Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect
to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants
shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred
(that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person’s own affairs.
(b)
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(1)
prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving
of all such Events of Default with respect to that series that may have occurred:
(A)
the duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the
performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(B)
in the absence of willful misconduct on the part of the Trustee, the Trustee may with respect to the Securities of such
series conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein);
(2)
the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3)
the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance
with the direction of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding
relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture with respect to the Securities of that series; and
(4)
none of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur personal or financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there
is reasonable ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably assured to it.
Section 7.02
Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a)
The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document or other evidence of
indebtedness believed by it to be genuine and to have been signed or presented by the proper party or parties. The Trustee need not investigate
any fact or matter stated in the document. The Trustee shall receive and retain financial reports and statements of the Company to the
extent provided herein, but shall have no duty to review or analyze such reports or statements to determine compliance with covenants
or other obligations of the Company;
(b)
Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution
or an instrument signed in the name of the Company by any authorized Officer of the Company (unless other evidence in respect thereof
is specifically prescribed herein);
(c)
The Trustee may consult with counsel of its selection and the advice of such counsel or, if requested, any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith
and in reliance thereon;
(d)
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have
offered (and if requested, provided) to the Trustee security or indemnity satisfactory to it against the costs, expenses, claims and liabilities
that may be incurred therein or thereby;
(e)
The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(f)
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents or other
evidence of indebtedness, unless requested in writing so to do by the holders of not less than a majority in principal amount of the Outstanding
Securities of the particular series affected thereby (determined as provided in Section 8.04); provided, however,
that if the payment within a reasonable time to the Trustee of the costs, expenses, claims or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may require indemnity or security satisfactory to it against such costs, expenses, claims
or liabilities as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Company or, if paid
by the Trustee, shall be repaid by the Company upon demand;
(g)
The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h)
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances;
(i)
In no event shall the Trustee be responsible or liable for special, punitive, indirect, or consequential loss or damage
of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action;
(j)
The permissive rights of the Trustee enumerated herein shall not be construed as duties;
(k)
The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture; and
(l)
The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
In addition, the Trustee shall not be deemed to
have knowledge of any Default or Event of Default until a Responsible Officer of the Trustee shall have received written notification
in the manner set forth in this Indenture, and such notice references the Securities and this Indenture or a Responsible Officer of the
Trustee shall have obtained actual knowledge.
Section 7.03
Trustee Not Responsible for Recitals or Issuance or Securities.
(a)
The recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes
no responsibility for the correctness of the same.
(b)
The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c)
The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds
of such Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture
or established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the
Trustee.
Section 7.04
May Hold Securities.
The Trustee or any paying agent or Security Registrar,
in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not
Trustee, paying agent or Security Registrar.
Section 7.05
Moneys Held in Trust.
Subject to the provisions of Section 11.05,
all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for
interest on any moneys received by it hereunder except such as it may agree in writing with the Company to pay thereon.
Section 7.06
Compensation and Reimbursement.
(a)
The Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such compensation (which shall
not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as the Company and the Trustee
may from time to time agree in writing, for all services rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided herein, the Company
will pay or reimburse the Trustee upon its request for all reasonable and documented expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable and documented fees and the expenses
and disbursements of its counsel and of all Persons not regularly in its employ), except any such expense, disbursement or advance as
may arise from its negligence or willful misconduct. The Company also covenants to indemnify the Trustee (and its officers, agents, directors
and employees) for, and to hold it harmless against, any documented loss, liability or expense, including reasonable and documented attorneys’
fees, incurred without negligence or willful misconduct on the part of the Trustee and arising out of or in connection with the acceptance
or administration of this trust, including the reasonable and documented costs and expenses of defending itself against any claim of liability
in the premises (whether asserted by the Company, or any holder or any other Person) or liability in connection with the exercise or performance
of any of its powers or duties hereunder, or in connection with enforcing the provisions of this Section.
(b)
The obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee
for reasonable expenses, disbursements and advances shall constitute indebtedness of the Company to which the Securities are subordinated.
Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the benefit of the holders of particular Securities.
(c)
To ensure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities
on all funds or property held or collected by the Trustee, except that held in trust to pay principal of, premium, if any, or interest
on particular Securities. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section
6.01(a)(4) or (5), the expenses (including the reasonable fees and expenses of its counsel) and the compensation for services
in connection therewith are to constitute expenses of administration under any Bankruptcy Law. The provisions of this Section 7.06
shall survive the termination of this Indenture and the earlier resignation or removal of the Trustee.
Section 7.07
Reliance on Officer’s Certificate or Opinion of Counsel.
Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of negligence or willful misconduct on the part of the Trustee,
be deemed to be conclusively proved and established by an Officer’s Certificate and Opinion of Counsel delivered to the Trustee
and such certificate and opinion, in the absence of negligence or willful misconduct on the part of the Trustee, shall be full warrant
to the Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.08
Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any “conflicting
interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall in all respects comply
with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09
Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect
to the Securities issued hereunder which shall at all times be a corporation organized and doing business under the laws of the United
States of America or any state or territory thereof or of the District of Columbia, or a corporation or other Person permitted to act
as trustee by the Commission, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of
at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state, territorial, or District
of Columbia authority.
If such corporation or other Person publishes
reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such corporation or other Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor may any Person directly
or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with
the effect specified in Section 7.10.
Section 7.10
Resignation and Removal; Appointment of Successor.
(a)
The Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series
by giving written notice thereof to the Company and by transmitting notice of resignation by electronic mail, or by first class postage
prepaid mail, to the Securityholders of such series, as their names and addresses appear upon the Security Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee with respect to Securities of such series by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after
the mailing of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder
of a Security or Securities for at least six months may on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint
a successor trustee.
(b)
In case at any time any one of the following shall occur: (i) the Trustee shall fail to comply with the provisions of Section
7.08 after written request therefor by the Company or by any Securityholder who has been a bona fide holder of a Security or Securities
for at least six months; or (ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall
fail to resign after written request therefor by the Company or by any such Securityholder; or (iii) the Trustee shall become incapable
of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or
of its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation; then, in any such case, the Company may remove the Trustee
with respect to all Securities and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months may, on behalf of that holder and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c)
The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any
time remove the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for
such series with the consent of the Company.
(d)
Any resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series
pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided
in Section 7.11.
(e)
Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more
series or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11
Acceptance of Appointment By Successor.
(a)
In case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee
so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor trustee, such retiring Trustee shall, upon full payment of any amount then due it pursuant to Section
7.06, execute and deliver an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor trustee all property and money held by such retiring Trustee hereunder.
(b)
In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute
and deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such
successor trustee relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee
and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment of such successor
trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations
vested in the Trustee under this Indenture, and each such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but, on request of the Company or any successor trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property
and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such
successor trustee relates.
(c)
Upon request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d)
No successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be
qualified and eligible under this Article.
(e)
Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of
the succession of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear
upon the Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section 7.12
Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, including the administration
of the trust created by this Indenture, shall be the successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without the execution
or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13
Preferential Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of
the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14
Notice of Default.
If any Event of Default occurs and is continuing
and if such Event of Default is actually known to a Responsible Officer of the Trustee, the Trustee shall send to each Securityholder
in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Event of Default within the later
of 90 days after it occurs and 30 days after it is actually known to a Responsible Officer of the Trustee or written notice of it is received
by the Trustee, unless such Event of Default has been cured; provided, however, that, except in the case of a default in
the payment of the principal of (or premium, if any) or interest on any Security, the Trustee shall be protected in withholding such notice
if and so long as it in good faith determines that the withholding of such notice is in the interest of the Securityholders.
Article 8
CONCERNING THE SECURITYHOLDERS
Section 8.01
Evidence of Action by Securityholders.
Whenever in this Indenture it is provided
that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular series may take
any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action),
the fact that at the time of taking any such action the holders of such majority or specified percentage of that series have joined therein
may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders of Securities of that series
in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders
of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option,
as evidenced by an Officer’s Certificate, fix in advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other
action may be given before or after the record date, but only the Securityholders of record at the close of business on the record date
shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of Outstanding
Securities of that series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver
or other action, and for that purpose the Outstanding Securities of that series shall be computed as of the record date; provided,
however, that no such authorization, agreement or consent by such Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
Section 8.02
Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and proof
of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a)
The fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable
to the Trustee.
(b)
The ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security
Registrar thereof. The Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary.
Section 8.03
Who May be Deemed Owners.
Prior to the due presentment for registration
of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person in whose
name such Security shall be registered upon the books of the Security Registrar as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to Section 2.03) interest
on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor any Security Registrar shall
be affected by any notice to the contrary.
Section 8.04
Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite
aggregate principal amount of Securities of a particular series have concurred in any direction, consent, demand, authorization, notice
or waiver under this Indenture, the Securities of that series that are owned by the Company or any other obligor on the Securities of
that series or by any Person directly or indirectly controlling or controlled by or under common control with the Company or any other
obligor on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such determination,
except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver,
only Securities of such series that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. The Securities
so owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall establish
to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such other obligor.
In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05
Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing
to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage in aggregate
principal amount of the Securities of a particular series specified in this Indenture in connection with such action, any holder of a
Security of that series that is shown by the evidence to be included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke such action so far
as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall be conclusive and binding upon
such holder and upon all future holders and owners of such Security, and of any Security issued in exchange therefor, on registration
of transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made upon such Security. Any
action taken by the holders of the majority or percentage in aggregate principal amount of the Securities of a particular series specified
in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the holders of all the
Securities of that series.
Article 9
SUPPLEMENTAL INDENTURES
Section 9.01
Supplemental Indentures Without the Consent of Securityholders.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent of the Securityholders at any
time Outstanding, for one or more of the following purposes:
(a)
to cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b)
to comply with Article 10;
(c)
to provide for uncertificated Securities in addition to or in place of certificated Securities;
(d)
to add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of
all or any series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than
all series of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for
the benefit of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e)
to add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes
of issue, authentication, and delivery of Securities, as herein set forth;
(f)
to make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g)
to provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided
in Section 2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or
any series of Securities, or to add to the rights of the holders of any series of Securities;
(h)
to evidence and provide for the acceptance of appointment hereunder by a successor trustee or to appoint a separate trustee
with respect to any series; or
(i)
to comply with any requirements of the Commission or any successor in connection with the qualification of this Indenture
under the Trust Indenture Act.
The Trustee is hereby authorized to join with
the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions
of this Section may be executed by the Company and the Trustee without the consent of the holders of any of the Securities at the time
Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02
Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Section
8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each series affected by such supplemental
indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture
Act as then in effect) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner not covered by Section 9.01 the rights of the holders
of the Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the holders of each Security then Outstanding and affected thereby, (a) extend the fixed maturity of any Securities of
any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any
premium payable upon the redemption thereof or (b) reduce the aforesaid percentage of Securities, the holders of which are required to
consent to any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders of
any series affected thereby under this Section to approve the particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof. The Trustee shall not be obligated to enter into any such supplemental
indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 9.03
Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such series only, be and
be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes
with respect to such series.
Section 9.04
Securities Affected by Supplemental Indentures.
Securities of any series affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article or
of Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements of any securities
exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture. If the Company shall so determine,
new Securities of that series so modified as to conform, in the opinion of the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for
the Securities of that series then Outstanding.
Section 9.05
Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by
its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture
or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such supplemental indenture. The
Trustee shall receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by the terms of this Article and that all conditions precedent to the execution
of the supplemental indenture have been complied with and with respect to such Opinion of Counsel, that such supplemental indenture is
the legal, valid and binding obligation of the Company, enforceable against each of them in accordance with its terms, subject to customary
exceptions and qualifications.
Promptly after the execution by the Company and
the Trustee of any supplemental indenture pursuant to the provisions of this Article, the Company shall transmit by electronic mail, or
by first class mail, postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders
of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of the Company to mail, or
cause the mailing of, such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental
indenture.
Article 10
SUCCESSOR ENTITY
Section 10.01
Company May Consolidate, Etc.
Nothing contained in this Indenture shall prevent
any consolidation or merger of the Company with or into any other Person (whether or not affiliated with the Company) or successive consolidations
or mergers in which the Company or its successor or successors shall be a party or parties, or shall prevent any sale, conveyance, transfer
or other disposition of the property of the Company or its successor or successors as an entirety, or substantially as an entirety, to
any other corporation (whether or not affiliated with the Company or its successor or successors) authorized to acquire and operate the
same; provided, however, (a) the Company hereby covenants and agrees that, upon any such consolidation or merger (in each
case, if the Company is not the survivor of such transaction), sale, conveyance, transfer or other disposition, the due and punctual payment
of the principal of (premium, if any) and interest on all of the Securities of all series in accordance with the terms of each series,
according to their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture with
respect to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed by the Company
shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act, as then in effect)
executed and delivered to the Trustee by the entity formed by such consolidation, or into which the Company shall have been merged, or
by the entity which shall have acquired such property and (b) in the event that the Securities of any series then Outstanding are convertible
into or exchangeable for shares of common stock or other securities of the Company, such entity shall, by such supplemental indenture,
make provision so that the Securityholders of Securities of that series shall thereafter be entitled to receive upon conversion or exchange
of such Securities the number of securities or property to which a holder of the number of shares of common stock or other securities
of the Company deliverable upon conversion or exchange of those Securities would have been entitled had such conversion or exchange occurred
immediately prior to such consolidation, merger, sale, conveyance, transfer or other disposition. If the Company is not the surviving
entity of any such transaction, the Company or the continuing entity agrees to deliver to the Trustee an Officer’s Certificate and
Opinion of Counsel stating that the transaction and the supplemental indenture complies with this Section 10.01 and that all conditions
precedent herein relating to the transaction have been satisfied.
Section 10.02
Successor Entity Substituted.
(a)
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the
successor entity by supplemental indenture, executed and delivered to the Trustee, of the obligations set forth under Section 10.01
on all of the Securities of all series Outstanding, such successor entity shall succeed to and be substituted for the Company with the
same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be relieved of all obligations
and covenants under this Indenture and the Securities.
(b)
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology
and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c)
Nothing contained in this Article shall require any action by the Company in the case of a consolidation or merger of any
Person into the Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise,
of all or any part of the property of any other Person (whether or not affiliated with the Company).
Article 11
SATISFACTION AND DISCHARGE
Section 11.01
Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered
to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee for cancellation
(other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or paid as provided in Section
2.07 and Securities for whose payment money or Governmental Obligations have theretofore been deposited in trust or segregated and
held in trust by the Company and thereupon repaid to the Company or discharged from such trust, as provided in Section 11.05);
or (b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit or cause to be deposited with the Trustee
as trust funds the entire amount in moneys or Governmental Obligations or a combination thereof, sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay at maturity
or upon redemption all Securities of that series not theretofore delivered to the Trustee for cancellation, including principal (and premium,
if any) and interest due or to become due to such date of maturity or date fixed for redemption, as the case may be, and if the Company
shall also pay or cause to be paid all other sums payable hereunder with respect to such series by the Company then this Indenture shall
thereupon cease to be of further effect with respect to such series except for the provisions of Sections 2.03, 2.05, 2.07,
4.01, 4.02, 4.03 and 7.10, that shall survive until the date of maturity or redemption date, as the case may
be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter, and the Trustee, on demand of the Company
and at the cost and expense of the Company shall execute such instruments reasonably requested by the Company acknowledging satisfaction
of and discharging this Indenture with respect to such series.
Section 11.02
Discharge of Obligations.
If at any time all such Securities of a particular
series not heretofore delivered to the Trustee for cancellation or that have not become due and payable as described in Section 11.01
shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount of Governmental Obligations
sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed for redemption, as
the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the Company with respect to
such series, then after the date such moneys or Governmental Obligations, as the case may be, are deposited with the Trustee the obligations
of the Company under this Indenture with respect to such series shall cease to be of further effect except for the provisions of Sections
2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.06, 7.10 and 11.05 hereof that shall
survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall survive.
Section 11.03
Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited
with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as due, either
directly or through any paying agent (including the Company acting as its own paying agent), to the holders of the particular series of
Securities for the payment or redemption of which such moneys or Governmental Obligations have been deposited with the Trustee.
Section 11.04
Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge
of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture shall, upon
demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect
to such moneys or Governmental Obligations.
Section 11.05
Repayment to Company.
Any moneys or Governmental Obligations deposited
with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or premium, if any, or interest
on the Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities for at least two
years after the date upon which the principal of (and premium, if any) or interest on such Securities shall have respectively become due
and payable, or such other shorter period set forth in applicable escheat or abandoned or unclaimed property law, shall be repaid to the
Company on May 31 of each year or upon the Company’s request or (if then held by the Company) shall be discharged from such trust;
and thereupon the paying agent and the Trustee shall be released from all further liability with respect to such moneys or Governmental
Obligations, and the holder of any of the Securities entitled to receive such payment shall thereafter, as a general creditor, look only
to the Company for the payment thereof.
Article 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01
No Recourse.
No recourse under or upon any obligation, covenant
or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor or successor
corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture
and the obligations issued hereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, stockholders, officers or directors as such, of the Company or of any predecessor or successor
corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture
and the issuance of such Securities.
Article 13
MISCELLANEOUS PROVISIONS
Section 13.01
Effect on Successors and Assigns.
All the covenants, stipulations, promises and
agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.
Section 13.02
Actions by Successor.
Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed
with like force and effect by the corresponding board, committee or officer of any corporation that shall at the time be the lawful successor
of the Company.
Section 13.03
Surrender of Company Powers.
The Company by instrument in writing executed
by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and thereupon
such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04
Notices.
Except as otherwise expressly provided herein,
any notice, request or demand that by any provision of this Indenture is required or permitted to be given, made or served by the Trustee
or by the holders of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or served by any standard
form of telecommunication or by being deposited in first class mail, postage prepaid, addressed (until another address is filed in writing
by the Company with the Trustee), as follows: [ ]. Any notice, election, request or demand by the Company or any Securityholder or by
any other Person pursuant to this Indenture to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes,
if given or made in writing at the Corporate Trust Office of the Trustee. Notwithstanding anything herein to the contrary, where reference
herein is made to notice of any event (including notice of redemption) to a Securityholder of Global Securities, whether by mail or otherwise,
such notice shall be sufficiently given when delivered to the Depositary (or its designee) pursuant to the customary procedures of the
Depositary.
Section 13.05
Governing Law; Jury Trial Waiver.
THIS INDENTURE AND EACH SECURITY, AND ANY CLAIM,
CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH SECURITY, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF). EACH OF THE COMPANY AND THE TRUSTEE
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 13.06
Treatment of Securities as Debt.
It is intended that the Securities will be treated
as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted to further this
intention.
Section 13.07
Certificates and Opinions as to Conditions Precedent.
(a)
Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture,
the Company shall furnish to the Trustee an Officer’s Certificate stating that all covenants and conditions precedent provided for
in this Indenture (other than the certificate to be delivered pursuant to Section 13.12) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such counsel all such covenants and conditions precedent have been
complied with.
(b)
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with
a condition or covenant in this Indenture shall include (i) a statement that the Person making such certificate or opinion has read such
covenant or condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such
examination or investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant
has been complied with.
Section 13.08
Payments on Business Days.
Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures supplemental
to this Indenture, in any case where the date that principal of, interest and/or premium, if any, on any Security is due or otherwise
payable shall not be a Business Day or is a day on which the banking institutions in the city of the office of the Paying Agent are authorized
or obligated by law to close or be closed, then payment of principal, premium, if any, and/or interest may be made on the next succeeding
day that is a Business Day and is not a day on which the banking institutions in the city of the office of the Paying Agent are authorized
or obligated by law to close or be closed with the same force and effect as if made on the nominal date of maturity or redemption, and
no interest shall accrue for the period after such nominal date.
Section 13.09
Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 13.10
Counterparts.
This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The
exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and
delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of
the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 13.11
Separability.
In case any one or more of the provisions contained
in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities, but this
Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein
or therein.
Section 13.12
Compliance Certificates.
The Company shall deliver to the Trustee, within
120 days after the end of each fiscal year during which any Securities of any series were outstanding, an Officer’s Certificate
stating whether or not the signers know of any Event of Default that occurred during such fiscal year. Such certificate shall contain
a certification from the principal executive officer, principal financial officer or principal accounting officer of the Company that
a review has been conducted of the activities of the Company and the Company’s performance under this Indenture and that the Company
has complied with all conditions and covenants under this Indenture. For purposes of this Section 13.12, such compliance shall
be determined without regard to any period of grace or requirement of notice provided under this Indenture. If the officer of the Company
signing such certificate has knowledge of such an Event of Default, the certificate shall describe any such Event of Default and its status.
Section 13.13
USA PATRIOT ACT.
The parties hereto acknowledge that in accordance
with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism
and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes
a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such
information as it may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
Section 13.14
Calculations.
It is understood that the Trustee nor the Paying
Agent shall have no responsibility for any calculations hereunder and shall be entitled to conclusively rely on the calculations of the
Company without any independent verification or investigation.
Article 14
SUBORDINATION OF SECURITIES
Section 14.01
Subordination Terms.
The payment by the Company of the principal of,
premium, if any, and interest on any series of Securities issued hereunder shall be subordinated to the extent set forth in an indenture
supplemental hereto relating to such series.
IN WITNESS WHEREOF, the parties hereto
have caused this Indenture to be duly executed all as of the day and year first above written.
| |
BRAINSTORM CELL THERAPEUTICS INC., as Issuer |
Signature Page to Form of Indenture
TRUST INDENTURE ACT CROSS-REFERENCE TABLE2
|
Section of Trust Indenture Act
of 1939, as amended |
|
Section of
Indenture |
| 310(a) |
|
7.09 |
| 310(b) |
|
7.08
7.10 |
| 310(c) |
|
Inapplicable |
| 311(a) |
|
7.13 |
| 311(b) |
|
7.13 |
| 311(c) |
|
Inapplicable |
| 312(a) |
|
5.01
5.02(a) |
| 312(b) |
|
5.02(c) |
| 312(c) |
|
5.02(c) |
| 313(a) |
|
5.04(a) |
| 313(b) |
|
5.04(b) |
| 313(c) |
|
5.04(a)
5.04(b) |
| 313(d) |
|
5.04(c) |
| 314(a) |
|
5.03
13.12 |
| 314(b) |
|
Inapplicable |
| 314(c) |
|
13.07(a) |
| 314(d) |
|
Inapplicable |
| 314(e) |
|
13.07(b) |
| 314(f) |
|
Inapplicable |
| 315(a) |
|
7.01(a)
7.01(b) |
| 315(b) |
|
7.14 |
| 315(c) |
|
7.01(a) |
| 315(d) |
|
7.01(b) |
| 315(e) |
|
6.07 |
| 316(a) |
|
6.06
8.04 |
| 316(b) |
|
6.04 |
| 316(c) |
|
8.01 |
| 317(a) |
|
6.02 |
| 317(b) |
|
4.03 |
| 318(a) |
|
13.09 |
2
This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation
of any of its terms or provisions.
Exhibit 5.1
 |
Goodwin Procter llp
100 Northern Avenue
Boston, MA 02210
goodwinlaw.com
+1 617 570 1000 |
Brainstorm Cell Therapeutics Inc.
1325 Avenue of Americas, 28th Floor,
New York, NY 10019
Re: Securities
Being Registered under Registration Statement on Form S-3
We have acted as counsel to you in connection with your filing of
a Registration Statement on Form S-3 (as amended or supplemented, the “Registration Statement”) pursuant to the Securities
Act of 1933, as amended (the “Securities Act”), relating to the offering by Brainstorm Cell Therapeutics Inc., a Delaware
corporation (the “Company”), of up to $172,561,230 of (i) common stock, par value $0.00005 per share (“Common
Stock”), (ii) the Company’s debt securities (“Debt Securities”), (iii) warrants to purchase Common
Stock (“Warrants”) and (iv) units comprised of Common Stock, Debt Securities, Warrants and other securities in any combination
(“Units”). The Common Stock, Debt Securities, Warrants and Units are sometimes referred to collectively herein as the “Securities.”
Securities may be issued in an unspecified number (with respect to Common Stock, Warrants and Units) or in an unspecified principal amount
(with respect to Debt Securities). The Registration Statement provides that the Securities may be offered separately or together, in
separate series, in amounts, at prices and on terms to be set forth in one or more prospectus supplements (each a “Prospectus Supplement”)
to the prospectus contained in the Registration Statement.
We have reviewed such documents and made such examination of law as
we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of
public officials and, as to matters of fact material to the opinions set forth below, on certificates of officers of the Company.
The opinions set forth below are limited to the Delaware General Corporation
Law and the law of New York.
For purposes of the opinions set forth below, without limiting any
other exceptions or qualifications set forth herein, we have assumed that (i) each of the Debt Securities, Warrants and Units and
the indentures, warrant agreements, unit agreements and other agreements governing Securities offered pursuant to the Registration Statement
will be governed by the internal law of New York and (ii) after the issuance of any Securities offered pursuant to the Registration
Statement, the total number of issued shares of Common Stock, together with the total number of shares of Common Stock issuable upon
the exercise, exchange, conversion or settlement, as the case may be, of any exercisable, exchangeable or convertible security (including
without limitation any Unit), as the case may be, then outstanding, will not exceed the total number of authorized shares of Common Stock,
as applicable, then available for issuance under the Company’s certificate of incorporation as then in effect (the “Charter”).
Brainstorm Cell Therapeutics Inc.
August 28, 2024
Page 2
For purposes of the opinions set forth below, we refer to the following
as the “Future Approval and Issuance” of Securities:
| · | with
respect to any of the Securities, (a) the approval by the Company of the amount, terms
and issuance of such Securities (the “Approval”) and (b) the issuance of
such Securities in accordance with the Approval upon the receipt by the Company of the consideration
(which, in the case of shares of Common Stock, is not less than the par value of such shares)
to be paid in accordance with the Approval; |
| · | with
respect to Debt Securities, (a) the approval, execution and delivery of the indenture
or a supplemental indenture relating to such Securities by the Company and the trustee and/or
(b) the establishment of the terms of such Securities by the Company in conformity with
the indenture or supplemental indenture and applicable law, and (c) the execution, authentication
and issuance of such Securities in accordance with the indenture or supplemental indenture
and applicable law; and |
| · | with
respect to Warrants or Units, (a) the approval, execution and delivery by the Company
and any other parties thereto of any agreement under which such Securities are to be issued,
and (b) the establishment of the terms of such Securities and the issuance of such Securities
in conformity with those terms, the terms of any applicable agreement and applicable law. |
Based upon the foregoing, and subject to the additional qualifications
set forth below, we are of the opinion that:
1. Upon
the Future Approval and Issuance of shares of Common Stock, such shares of Common Stock will be validly issued, fully paid and nonassessable.
2. Upon
the Future Approval and Issuance of Debt Securities, such Debt Securities will be valid and binding obligations of the Company.
3. Upon
the Future Approval and Issuance of Warrants, such Warrants will be valid and binding obligations of the Company.
4. Upon
the Future Approval and Issuance of Units, such Units will be valid and binding obligations of the Company.
Brainstorm Cell Therapeutics Inc.
August 28, 2024
Page 3
The opinions expressed above are subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting the rights and remedies of creditors
and to general principles of equity.
This opinion letter and the opinions it contains shall be interpreted
in accordance with the Core Opinion Principles as published in 74 Business Lawyer 815 (Summer 2019).
We hereby consent to the inclusion of this opinion as Exhibit 5.1
to the Registration Statement and to the references to our firm under the caption “Legal Matters” in the Registration Statement.
In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations thereunder.
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Very truly yours, |
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/s/ GOODWIN PROCTER LLP |
| |
GOODWIN PROCTER LLP |
EXHIBIT 5.2
Goodwin Procter
100 Northern Avenue
Boston, MA 02210
goodwinlaw.com
+1 617 570 1000
August 28, 2024
Brainstorm Cell Therapeutics Inc.
1325 Avenue of Americas, 28th Floor,
New York, NY 10019
Re: Securities
Registered under Registration Statement on Form S-3
We have acted as counsel to you in connection with
your filing of a Registration Statement on Form S-3 (as amended or supplemented, the “Registration Statement”) filed
on August 28, 2024 with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933,
as amended (the “Securities Act”), relating to the registration of the offering by Brainstorm Cell Therapeutics Inc., a Delaware
corporation (the “Company”) of up to $172,561,230 of any combination of securities of the types specified therein. Reference
is made to our opinion letter dated August 28, 2024 and included as Exhibit 5.1 to the Registration Statement. We are delivering
this supplemental opinion letter in connection with the prospectus supplement (the “Prospectus Supplement”) filed on August
28, 2024 by the Company with the Commission pursuant to Rule 424 under the Securities Act. The Prospectus Supplement relates to the
offering by the Company of up to $5,776,035 in shares (the “Shares”) of the Company’s common stock, par value $0.00005
per share (“Common Stock”) covered by the Registration Statement. The Shares are being offered and sold by the distribution
agent named in, and pursuant to, a distribution agreement, as amended, between the Company and such distribution agent.
We have reviewed such documents and made such examination
of law as we have deemed appropriate to give the opinion set forth below. We have relied, without independent verification, on certificates
of public officials and, as to matters of fact material to the opinion set forth below, on certificates of officers of the Company.
For purposes of the opinion set forth below, we
have assumed that the Shares are issued for a price per share equal to or greater than the minimum price authorized by the Company’s
board of directors prior to the date hereof (the “Minimum Price”) and that no event occurs that causes the number of authorized
shares of Common Stock available for issuance by the Company to be less than the number of then unissued Shares that may be issued for
the Minimum Price.
Brainstorm Cell Therapeutics Inc.
August 28, 2024
Page 2
For purposes of the opinion set forth below, we
refer to the following as “Future Approval and Issuance”: (a) the approval by the Company’s board of directors (or a
duly authorized committee of the board of directors) of the issuance of the Shares (the “Approval”) and (b) the issuance of
the Shares in accordance with the Approval and the receipt by the Company of the consideration (which shall not be less than the par value
of such Shares) to be paid in accordance with the Approval.
The opinion set forth below is limited to the Delaware
General Corporation Law.
Based on the foregoing, we are of the opinion that
the Shares have been duly authorized and, upon Future Approval and Issuance, will be validly issued, fully paid and nonassessable.
This opinion is being furnished to you for submission
to the Commission as an exhibit to the Registration Statement. We hereby consent to the filing of this opinion letter as an exhibit to
the Registration Statement and the reference to our firm therein. In giving our consent, we do not admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
| |
Very truly yours, |
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|
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/s/ Goodwin Procter LLP |
| |
GOODWIN PROCTER LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the
incorporation by reference in Registration Statement on form S-3 of our report dated April 1, 2024, relating to the financial statements
of Brainstorm Cell Therapeutics Inc. (the “Company”) appearing in the Annual Report on Form 10-K of the Company for the year
ended December 31, 2023. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ Brightman Almagor Zohar & Co.
Brightman Almagor Zohar & Co.
Certified Public Accountants
A Firm in the Deloitte Global Network
Tel Aviv, Israel
August 28, 2024
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Brainstorm Cell Therapeutics, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
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|
Security
Type |
|
Security
Class
Title |
|
Fee
Calculation
or Carry
Forward
Rule |
|
Amount
Registered |
|
Proposed
Maximum
Offering
Price Per
Unit |
|
Maximum
Aggregate
Offering
Price |
|
Fee
Rate |
|
Amount of
Registration
Fee |
|
Carry
Forward
Form
Type |
|
Carry
Forward
File
Number |
|
Carry
Forward
Initial
Effective
Date |
|
Filing Fee
Previously
Paid In
Connection
with
Unsold
Securities
to be
Carried
Forward |
| |
| Newly Registered Securities |
| |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
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|
|
|
|
|
|
|
Fees to Be
Paid
|
|
Equity |
|
Common Stock, par value $0.00005 per share |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
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|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
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|
Fees to Be
Paid
|
|
Debt |
|
Debt Securities |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
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|
|
|
|
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|
|
|
|
|
|
|
|
|
|
Fees to Be
Paid
|
|
Equity |
|
Warrants |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees to Be
Paid
|
|
Equity |
|
Units |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
|
|
|
|
|
|
|
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|
|
|
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|
|
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|
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|
Fees to Be
Paid
|
|
Unallocated (Universal) Shelf |
|
— |
|
457(o) |
|
(1) |
|
— |
|
$172,561,230 |
|
0.00014760 |
|
$25,470.04 |
|
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|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
Previously
Paid
|
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
|
|
— |
|
|
|
|
|
|
|
|
| |
| Carry Forward Securities |
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Carry Forward Securities |
|
Equity |
|
Common Stock, par value $0.00001 per share |
|
— |
|
— |
|
|
|
— |
|
|
|
|
|
|
|
— |
|
— |
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Debt |
|
Debt Securities |
|
— |
|
— |
|
|
|
— |
|
|
|
|
|
|
|
— |
|
— |
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Equity |
|
Warrants |
|
— |
|
— |
|
|
|
— |
|
|
|
|
|
|
|
— |
|
— |
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Equity |
|
Units |
|
— |
|
— |
|
|
|
— |
|
|
|
|
|
|
|
— |
|
— |
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Unallocated (Universal) Shelf |
|
|
|
— |
|
— |
|
|
|
— |
|
|
|
|
|
|
|
— |
|
— |
|
|
| |
|
|
|
|
|
|
|
|
|
| |
|
Total Offering Amounts |
|
|
|
$172,561,230 |
|
|
|
$25,470.04 |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
| |
|
Total Fees Previously Paid |
|
|
|
|
|
|
|
$0 |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
| |
|
Total Fee Offsets |
|
|
|
|
|
|
|
$18,826.43 |
|
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|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
| |
|
Net Fee Due |
|
|
|
|
|
|
|
$6,643.61 |
|
|
|
|
|
|
|
|
Table 2: Fee Offset Claims and Sources
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Registrant
or Filer
Name |
Form
or
Filing
Type |
File Number |
Initial Filing
Date |
Filing Date |
Fee
Offset
Claimed |
Security Type
Associated with
Fee Offset
Claimed |
Security
Title
Associated
with Fee
Offset
Claimed |
Unsold
Securities
Associated
with Fee
Offset
Claimed |
Unsold Aggregate
Offering Amount
Associated with
Fee Offset
Claimed |
Fee Paid
with Fee
Offset
Source |
| Rule 457(p) |
| Fee Offset Claims |
Brainstorm Cell Therapeutics, Inc. |
Form S-3 |
333-258640 |
8/9/2021 |
|
$18,826.43 (2) |
Unallocated (Universal) Shelf |
— |
— |
$172,561,230 |
|
| Fee Offset Sources |
Brainstorm Cell Therapeutics, Inc. |
Form S-3 |
333-258640 |
|
8/9/2021 |
|
|
|
|
|
$18,826.43 |
| (1) |
The amount to be registered consists of up to $172,561,230 of an indeterminate amount of common stock, debt securities, warrants and/or units. There is also being registered hereunder such currently indeterminate number of (i) shares of common stock or other securities of the Registrant as may be issued upon conversion of, or in exchange for, convertible or exchangeable debt securities and/or preferred stock registered hereby, or (ii) shares of debt securities, common stock or units as may be issued upon exercise of warrants registered hereby, as the case may be, including under any applicable antidilution provisions. Any securities registered hereunder may be sold separately or together with other securities registered hereunder. Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend or pursuant to anti-dilution provisions of any of the securities. Separate consideration may or may not be received for securities that are issuable upon conversion, exercise or exchange of other securities. |
| (2) |
This Registrant previously paid a filing fee of $18,826.43 in
connection with the registration of $172,561,230 of an indeterminate amount of common stock, debt securities, warrants and/or units that
have been previously registered under its registration statement on Form S-3 (File No. 333-258640) filed on August 9, 2021 (“Prior
Registration Statement”) and remain unsold. Pursuant to Rule 457(p), the filing fee of $18,826.43 in connection with such $172,561,230
unsold securities may be offset against the total filing fee due for this registration statement. Pursuant to Rule 457(p), the offering
of such $172,561,230 unsold securities under the Prior Registration Statement will be deemed terminated as of the time of the filing
of this registration statement. |
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