As filed with the Securities and Exchange
Commission on November 27, 2015
Registration No. 333-208004
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
AMENDMENT
NO. 1 TO FORM S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
________________
Protalix BioTherapeutics,
Inc.
(Exact name of Registrant as specified in its
charter)
|
|
|
Florida |
|
65-0643773 |
(State or other jurisdiction of |
|
(I.R.S. Employer |
incorporation or organization) |
|
Identification No.) |
2 Snunit Street
Science Park
P.O. Box 455
Carmiel, Israel 20100
+972-4-988-9488
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
________________
CT Corporation System
111 Eighth Avenue
New York, NY 10011
(212) 894-8400
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
James R. Tanenbaum, Esq.
Morrison & Foerster LLP
1290 Avenue of the Americas
New York, NY 10104
(212) 468-8000
________________
Approximate date of
commencement of proposed sale to the public:
From time to time on or
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, 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.
þ
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, or a smaller reporting company. See the definitions
of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule
12b-2 of the Exchange Act.
|
|
|
Large accelerated filer
¨ |
|
Accelerated filer
þ |
Non-accelerated filer
¨ |
|
Smaller reporting company
¨ |
(Do not check if
a smaller reporting company) |
|
|
CALCULATION OF REGISTRATION FEE
Title
of Each Class of Securities to
be Registered | |
Amount
to be
Registered(1) | | |
Proposed Maximum
Offering Price Per
Unit (2) | | |
Proposed Maximum
Aggregate Offering
Price(2) | | |
Amount
of Registration
Fee (3) | |
Common stock, par value $0.001 per share (4) | |
| | | |
| | | |
| | | |
| | |
Preferred stock, par value $0.001 per share (4) | |
| | | |
| | | |
| | | |
| | |
Debt Securities (4) | |
| | | |
| | | |
| | | |
| | |
Warrants to purchase common stock (4) | |
| | | |
| | | |
| | | |
| | |
TOTAL | |
| | (5) | |
| | | |
$ | 100,000,000 | | |
$ | 10,070 | |
| (1) | There are being registered under this registration statement
such indeterminate number of shares of common stock and preferred stock, debt securities
and/or warrants of the Registrant as shall have an aggregate initial offering price not
to exceed $100,000,000. Any securities registered under this registration statement may
be sold separately or as units with other securities registered under this registration
statement. The proposed maximum initial offering prices per unit will be determined,
from time to time, by the Registrant in connection with the issuance by the Registrant
of the securities registered under this registration statement. The securities registered
also include such indeterminate amounts and numbers of common stock as may be issued
upon conversion of or exchange for preferred stock, debt securities or warrants that
provide for such conversion or exchange. The amount of each class of securities being
registered under this registration statement is not specified pursuant to General Instruction
II.D. of Form S-3 under the Securities Act of 1933. |
| (2) | The proposed maximum aggregate offering price has been estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(o)
under the Securities Act. Securities registered for sale by the Registrant hereunder
may be sold separately, together or as units with other securities registered hereunder. |
| (4) | Pursuant to Rule 416 under the Securities Act, an indeterminate
number of additional securities are registered hereunder that may be issued to prevent
dilution in connection with a stock split, stock dividend, recapitalization, or similar
event or adjustment. In addition, an indeterminate number of shares of common stock are
registered hereunder that may be issued upon conversion of or exchange for any convertible
preferred stock or debt securities, or upon exercise of any warrant. |
| (5) | In no event will the aggregate initial offering price of all
securities issued from time to time by the Registrant pursuant to this registration statement
exceed $100,000,000 or the equivalent thereof in one or more foreign currencies, foreign
currency units or composite currencies, excluding accrued interest, if any, on any debt
securities issued under the registration statement. |
The Registrant hereby amends this Registration
Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment
which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission acting
pursuant to said Section 8(a), may determine.
The information in this prospectus
is not complete and may be changed. These securities may not be sold nor may offers to buy these securities be accepted prior
to the time the registration statement filed with the securities and exchange commission becomes effective. This prospectus is
not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or
sale is not permitted.
SUBJECT TO COMPLETION, DATED
NOVEMBER 27, 2015
PROSPECTUS
$100,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
We may from time to time offer, in one or more
series, separately or together, the following:
| · | our preferred stock
in one or more series; |
| · | debt securities
in one or more series; and |
| · | warrants to purchase
our common stock. |
The aggregate public offering price of the
securities that we may offer through this prospectus will be up to $100,000,000.
We will provide the specific terms of the securities
offered by us in supplements to this prospectus, which we will deliver together with the prospectus at the time of sale. This
prospectus may not be used to sell securities unless accompanied by a prospectus supplement. Please read this prospectus and the
applicable prospectus supplement carefully before you invest in any of our securities.
We may, from time to time, offer and sell these
securities directly or through one or more underwriters, agents or dealers, through underwriting syndicates managed or co-managed
by one or more underwriters, or directly to purchasers, on or off the NYSE MKT at prevailing market prices or at privately negotiated
prices, on a continuous or delayed basis.
Our common stock is listed on the NYSE MKT
under the symbol “PLX” and on the Tel Aviv Stock Exchange under the symbol “PLX.” On November 25, 2015,
the last reported sale price of our common stock was $1.09 per share on the NYSE MKT and NIS 4.11 per share on the Tel Aviv Stock
Exchange.
Investing in our securities involves risks.
Risks associated with an investment in our securities will be described in the applicable prospectus supplement and certain of
our filings with the Securities and Exchange Commission, as described under the caption “Risk Factors” on page 4.
None of the Securities and Exchange Commission,
the Israeli Securities Authority or 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 ,
2015
TABLE OF CONTENTS
No dealer, salesman or other person has been authorized to give
any information or to make any representations in connection with the offer made by this prospectus or any prospectus supplement
other than those contained in, or incorporated by reference in, this prospectus or any prospectus supplement, and if given or
made, such information or representations must not be relied upon as having been authorized by us or any underwriter, agent or
dealer. We or an authorized underwriter, agent or dealer may also furnish you with a free writing prospectus relating to the applicable
securities. This prospectus, any prospectus supplement or any free writing prospectus does not constitute an offer to sell or
a solicitation of any offer to buy any securities in any jurisdiction to any person to whom it is unlawful to make an offer or
solicitation in such jurisdiction. The delivery of this prospectus, any prospectus supplement or any free writing prospectus at
any time does not imply that the information contained herein or therein is correct as of any time subsequent to their respective
dates.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
STATEMENTS
The statements set forth and incorporated by reference in this
prospectus, which are not historical, constitute “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 Securities Exchange Act of 1934, as amended,
or the Exchange Act, including statements regarding the expectations, beliefs, intentions or strategies for the future. When used
in this prospectus, or in any document incorporated by reference in this prospectus, the terms “anticipate,” “believe,”
“estimate,” “expect,” “can,” “continue,” “could,” “intend,”
“may,” “plan,” “potential,” “predict,” “project,” “should,”
“will,” “would” and words or phrases of similar import, as they relate to our company or our subsidiaries
or our management, are intended to identify forward-looking statements. These forward-looking statements are only predictions
and reflect our views as of the date they are made with respect to future events and financial performance, and we undertake no
obligation to update or revise, nor do we have a policy of updating or revising, any forward-looking statement to reflect events
or circumstances after the date on which the statement is made or to reflect the occurrence of unanticipated events, except as
may be required under applicable law. We intend that all forward-looking statements be subject to the safe-harbor provisions of
the Private Securities Litigation Reform Act of 1995. Forward-looking statements are subject to many risks and uncertainties that
could cause our actual results to differ materially from any future results expressed or implied by the forward-looking statements.
Examples of the risks and uncertainties include, but are not limited
to, the following:
| · | risks relating to
the compliance by Fundação Oswaldo Cruz, or Fiocruz, an arm of the Brazilian
Ministry of Health, with its purchase obligations under our supply and technology transfer
agreement which may result in the termination of such agreement which may have a material
adverse effect on our company; |
| · | risks related to
the commercialization efforts for taliglucerase alfa in Brazil; |
| · | risks related to
our supply of drug product to Pfizer Inc., or Pfizer, pursuant to our amended and restated
exclusive license and supply agreement with Pfizer; |
| · | risks related to
our supply of drug product to Fiocruz pursuant to our supply arrangement with Fiocruz; |
| · | the risk that we
will not be able to develop a successful sales and marketing organization for taliglucerase
alfa in Brazil, or for any other product candidate, in a timely manner, if at all; |
| · | failure or delay
in the commencement or completion of our preclinical studies and clinical trials which
may be caused by several factors, including: unforeseen safety issues; determination
of dosing issues; lack of effectiveness during clinical trials; slower than expected
rates of patient recruitment; inability to monitor patients adequately during or after
treatment; inability or unwillingness of medical investigators and institutional review
boards to follow our clinical protocols; or lack of sufficient funding to finance our
clinical trials; |
| · | the risk that the
results of our clinical trials will not support the applicable claims of safety or efficacy,
that our product candidates will not have the desired effects or include undesirable
side effects or other unexpected characteristics; |
| · | our dependence on
performance by third party providers of services and supplies, including without limitation,
clinical trial services; |
| · | risks relating to
our ability to make scheduled payments of the principal of, to pay interest on or to
refinance our 2018 convertible notes, or any other indebtedness; |
| · | risks relating to
our ability to finance our research programs; |
| · | delays in our preparation
and filing of applications for regulatory approval of our other product candidates in
the United States, the European Union and elsewhere; |
| · | our expectations
with respect to the potential commercial value of our product and product candidates; |
| · | the risk that products
that are competitive to our product candidates may be granted orphan drug status in certain
territories and, therefore, will be subject to potential marketing and commercialization
restrictions; |
| · | the impact of development
of competing therapies and/or technologies by other companies; |
| · | any lack of progress
of our research and development activities and our clinical activities with respect to
any product candidate; |
| · | the inherent risks
and uncertainties in developing the types of drug platforms and products we are developing; |
| · | potential product
liability risks, and risks of securing adequate levels of product liability and clinical
trial insurance coverage; |
| · | the possibility of
infringing a third party’s patents or other intellectual property rights; |
| · | the uncertainty of
obtaining patents covering our products and processes and in successfully enforcing our
intellectual property rights against third parties; |
| · | risks relating to
changes in healthcare laws, rules and regulations in the United States or elsewhere;
and |
| · | the possible disruption
of our operations due to terrorist activities and armed conflict, including as a result
of the disruption of the operations of regulatory authorities, our subsidiaries, our
manufacturing facilities and our customers, suppliers, distributors, collaborative partners,
licensees and clinical trial sites. |
Companies in the pharmaceutical and biotechnology industries have
suffered significant setbacks in advanced or late-stage clinical trials, even after obtaining promising earlier trial results
or preliminary findings for such clinical trials. Even if favorable testing data is generated from clinical trials of a drug product,
the U.S. Food and Drug Administration, or the FDA, or foreign regulatory authorities may not accept or approve a marketing application
filed by a pharmaceutical or biotechnology company for the drug product.
These forward-looking statements reflect our current views with
respect to future events and are based on assumptions and subject to risks and uncertainties. Given these uncertainties, you should
not place undue reliance on these forward-looking statements. These and other risks and uncertainties are detailed under the heading
"Risk Factors" in our
Annual Report on Form 10-K for the year ended December 31, 2014, and are described from time to time in the reports
we file with the U.S. Securities and Exchange Commission, or the SEC.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed
with the SEC using a “shelf” registration process. Under this shelf registration process, we may sell shares of common
stock and preferred stock, debt securities and/or warrants in one or more offerings, up to a total dollar amount of $100,000,000.
This prospectus provides you with a general description of the
securities we may offer under this prospectus. Each time we sell securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information
contained in this prospectus.
The SEC allows us to “incorporate by reference” certain
information that we file with it, which means that we can disclose important information to you by referring you to those documents.
The information incorporated by reference is considered to be part of this prospectus, and information that we file later with
the SEC will update automatically, supplement and/or supersede this information. Any statement contained in a document incorporated
or deemed to be incorporated by reference in this prospectus shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained in this prospectus or in any other document which also is or is deemed to
be incorporated by reference in this prospectus modifies or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus. You should read the detailed
information regarding our company, our securities and our financial statements and the notes to those statements appearing elsewhere
in this prospectus or incorporated herein by reference.
You should read both this prospectus and the applicable prospectus
supplement together with additional information from the sources described under the caption “Where You Can Find More Information”
in this prospectus. You should not assume that the information in this prospectus, the prospectus supplements, any free writing
prospectus or any document incorporated by reference is accurate as of any date subsequent to their respective dates.
You should rely only on the information provided or incorporated
by reference in this prospectus, any free writing prospectus and any prospectus supplement, if applicable. We have not authorized
anyone to provide you with different information.
References in this prospectus to “our company,” “we,”
“our,” and “us” refer to Protalix BioTherapeutics, Inc.
OUR BUSINESS
We are a biopharmaceutical company focused on the development and
commercialization of recombinant therapeutic proteins based on our proprietary ProCellEx® protein expression system,
or ProCellEx. Using our ProCellEx system, we are developing a pipeline of proprietary, clinically superior versions of recombinant
therapeutic proteins that primarily target large, established pharmaceutical markets and that in most cases rely upon known biological
mechanisms of action. Our initial commercial focus has been on complex therapeutic proteins, including proteins for the treatment
of genetic disorders, such as Gaucher disease and Fabry disease. With our experience, and having successfully developed ElelysoTM,
our first drug product, we believe ProCellEx will enable us to develop additional proprietary recombinant proteins that are therapeutically
superior to existing recombinant proteins currently marketed for the same indications. We are now also applying the unique properties
of our ProCellEx system for the oral delivery of therapeutic proteins.
On May 1, 2012, the U.S. Food and Drug Administration, or the FDA,
approved for sale our first commercial product, taliglucerase alfa for injection, an enzyme replacement therapy, or ERT, for the
long-term treatment of adult patients with a confirmed diagnosis of type 1 Gaucher disease. Subsequently, taliglucerase alfa was
approved for marketing by the regulatory authorities of other countries. Taliglucerase alfa is being marketed under the name UplysoTM
in Brazil and certain other Latin American countries, and as Elelyso in the rest of the territories.
Since its approval by the FDA, taliglucerase alfa has been marketed
mainly in the United States by Pfizer Inc., or Pfizer, our commercialization partner, as provided in the exclusive license and
supply agreement by and between Protalix Ltd., our wholly-owned subsidiary, and Pfizer, which we refer to as the Pfizer Agreement.
In October 2015, we entered into an Amended and Restated Exclusive License and Supply Agreement, or the Amended Pfizer Agreement,
which amends and restates the Pfizer Agreement in its entirety. Pursuant to the Amended Pfizer Agreement, we sold to Pfizer our
share in the collaboration created under the initial Pfizer Agreement for the commercialization of Elelyso in exchange for a cash
payment equal to $36.0 million. As part of the sale, we agreed to transfer our rights to Elelyso in Israel to Pfizer, while gaining
full rights to Elelyso in Brazil. Under the Amended Pfizer Agreement, we will continue to manufacture drug substance for Pfizer,
subject to certain terms and conditions. In addition, we issued to Pfizer a promissory note for approximately $4.2 million, representing
our share of accumulated losses as of the date of the Amended Pfizer Agreement. The note is to be paid in October 2020, subject
to certain terms and conditions. Under the initial Pfizer Agreement, Pfizer shared revenues and expenses for the development and
commercialization of Elelyso with us on a 60%/40% basis globally, excluding Israel and Brazil. Under the Amended Pfizer Agreement,
Pfizer is responsible for 100% of expenses, and entitled to all of the revenues, globally for Elelyso, excluding Brazil, where
we are responsible for all expenses and retains all revenues. The Amended Pfizer Agreement eliminates Pfizer’s entitlement
to annual payments of up to $12.5 million in relation to commercialization of Elelyso in Brazil.
For the first 10-year period after the execution of the Amended
Pfizer Agreement, we have agreed to sell drug substance to Pfizer for the production of Elelyso, and Pfizer maintains the right
to extend the supply period for up to two additional 30-month periods subject to certain terms and conditions. The Amended Pfizer
Agreement also includes provisions regarding cooperation for regulatory matters, supply of the drug substance to Pfizer, including
provisions addressing failure to supply, and patent enforcement, and contains customary provisions regarding termination, indemnification
and insurance requirements.
On October 12, 2015, we also entered into a Stock Purchase Agreement
with Pfizer, pursuant to which we issued 5,649,079 shares of our common stock for an aggregate purchase price equal to $10.0 million
subject to certain other terms set forth in the Stock Purchase Agreement. As part of the Stock Purchase Agreement, Pfizer has
agreed to a 180-day lock-up with respect to the purchased shares of common stock and our directors and executive officers have
entered into 90-day lock up agreements.
On June 18, 2013, we entered into a Supply and Technology Transfer
Agreement, or the Brazil Agreement, with Fundação Oswaldo Cruz, or Fiocruz, an arm of the Brazilian Ministry of
Health for taliglucerase alfa. The agreement became effective in January 2014. The technology transfer is designed to be completed
in four stages and is intended to transfer to Fiocruz the capacity and skills required for the Brazilian government to construct
its own manufacturing facility, at its sole expense, and to produce a sustainable, high-quality, and cost-effective supply of
taliglucerase alfa. We are not required to complete the final stage of the technology transfer until Fiocruz purchases at least
approximately $280 million worth of taliglucerase alfa.
Fiocruz’s purchases of Uplyso to date have been significantly
below certain agreed upon purchase milestones and, accordingly, we have the right to terminate the Brazil Agreement. Notwithstanding
the low purchase amounts, we are, at this time, continuing to supply Uplyso to Fiocruz under the Brazil Agreement, and patients
continue to be treated with Uplyso in Brazil. Approximately 10% of adult Gaucher patients in Brazil are currently treated with
Uplyso. We are discussing with Fiocruz potential actions that Fiocruz may take to comply with its purchase obligations and, based
on such discussions, we will determine what we believe to be the course of action that is in the best interest of our company.
We will pay a fee equal to 5% of the net proceeds generated in
Brazil to an agent for services provided in assisting us complete the Brazil Agreement pursuant to an agreement between us and
the agent. The agreement will remain in effect with respect to the Brazil Agreement until the termination thereof.
In addition to taliglucerase alfa, we are developing an innovative
product pipeline using our ProCellEx protein expression system. Our product pipeline currently includes, among other candidates:
(1) PRX-102, or alpha-GAL-A, a therapeutic protein candidate for
the treatment of Fabry disease, a rare, genetic lysosomal disorder in humans, currently in an ongoing phase I/II clinical trial.
We expect to report final efficacy and safety results for the 0.2mg, 1 mg and 2mg/kg dose groups of the trial during the fourth
quarter of 2015.
(2) PRX-106, our oral antiTNF product candidate which is being
developed as an orally-delivered anti inflammatory treatment using plant cells as a natural capsule for the expressed protein.
We concluded the phase I clinical trial, which demonstrated that the drug was safe and well tolerated, showing biological activity
in the gut and inducement of regulatory T cells. We expect to initiate a proof of concept efficacy study by early 2016.
(3) PRX-110, a proprietary plant cell recombinant human Deoxyribonuclease
1, or DNase, under development for the treatment of cystic fibrosis, to be administered by inhalation. We expect to initiate a
phase I clinical trial in healthy volunteers during the fourth quarter followed by proof of concept efficacy study in patients
during the first half of 2016.
(4) PRX-112, an orally administered glucocerebrosidase enzyme for
the treatment of Gaucher patients utilizing oral delivery of the recombinant GCD enzyme produced and encapsulated within carrot
cells. PRX-112 has been the subject of successful proof of concept clinical trials, and we intend to focus our efforts on a new
formulation of the treatment during 2015 before proceeding to more advanced clinical trials.
Except for the rights to commercialize taliglucerase alfa worldwide
(other than Brazil), which we licensed to Pfizer, we hold the worldwide commercialization rights to all of our proprietary development
candidates. In addition, we continuously evaluate potential strategic marketing partnerships as well as collaboration programs
with biotechnology and pharmaceutical companies and academic research institutes.
RISK FACTORS
Investing in our securities involves a high degree of risk. You
should carefully consider the specific risks sets forth under the caption “Risk Factors” in the applicable prospectus
supplement and under the captions “Risk Factors” in any of our filings with the SEC, including our Annual Report on
Form 10-K for the year ended December 31, 2014 before making an investment decision. For additional information, please see the
sources described under the caption “Where You Can Find More Information.”
USE OF PROCEEDS
We will retain broad discretion over the use of the net proceeds
of the securities we offer hereby. Unless the applicable prospectus supplement states otherwise, the net proceeds from the securities
we sell will be added to our general corporate funds and may be used for research and development expenses, clinical trials, establishing
an internal sales force for selected territories, acquisitions of new technologies or businesses, and general corporate and administrative
purposes. Until the net proceeds have been used, they will be invested primarily in short-term bank deposits or marketable securities.
If we elect at the time of the issuance of the securities to make different or more specific uses of proceeds other than as described
in this prospectus, the change in use of proceeds will be described in the applicable prospectus supplement.
RATIO OF EARNINGS
TO FIXED CHARGES
The following table
sets forth our ratio of earnings to fixed charges for the periods indicated (in thousands):
| |
Year Ended December 31, | | |
Nine Months Ended
September 30, | |
| |
2010 | | |
2011 | | |
2012 | | |
2013 | | |
2014 | | |
2015 | |
Deficiency
of Earnings Available to Cover Fixed Charges | |
$ | (28,998 | ) | |
$ | (36,529 | ) | |
$ | (11,618 | ) | |
$ | (27,790 | ) | |
$ | (29,943 | ) | |
$ | (14,863 | ) |
DILUTION
We will set forth in a prospectus supplement the following information
regarding any material dilution of the equity interests of investors 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 purchasers in the offering; and |
| · | the amount of
the immediate dilution from the public offering price which will be absorbed by such
purchasers. |
SECURITIES WE MAY OFFER
Types of Securities
The securities we may offer from time to time
by this prospectus are:
| · | preferred stock,
which we may issue in one or more series; |
| · | debt securities,
which we may issue in one or more series; and |
| · | warrants entitling
the holders to purchase common stock. |
We will describe in a prospectus supplement,
which we will deliver with this prospectus at the time of sale, the terms of the particular securities that we may offer in the
future.
The aggregate
initial offering price of all securities sold will not exceed $100,000,000. When we sell
securities, we will determine the amounts of securities we will sell and the prices and other terms on which we will sell them.
We may sell securities to or through underwriters, through agents or dealers or directly to purchasers.
Additional Information
We will describe in a prospectus supplement, which we will deliver
with this prospectus, the terms of particular securities which we may offer in the future. In each prospectus supplement we will
include the following information:
| · | the
type and amount of securities which we propose to sell; |
| · | the
initial public offering price of the securities; |
| · | the
names of the underwriters, agents or dealers, if any, through or to which we will sell
the securities; |
| · | the
compensation, if any, of those underwriters, agents or dealers; |
| · | if
applicable, information about any securities exchange or automated quotation system on
which the securities will be listed or traded; |
| · | material
U.S. federal income tax considerations applicable to the securities; |
| · | any
material risk factors associated with the securities; |
| · | original issue
discount, if any; |
| · | rates and times
of payment of interest, dividends or other payments, if any; |
| · | redemption,
conversion, exercise, exchange, settlement or sinking fund terms, if any; |
| · | voting or other
rights, if any; |
| · | conversion,
exchange or settlement prices or rates, if any, and, if applicable, any provisions for
changes to or adjustments in the conversion, exchange or settlement prices or rates and
in the securities or other property receivable upon conversion, exchange or settlement;
and |
| · | any
other material information about the offer and sale of the securities. |
In addition, the prospectus supplement may add, update
or change the information contained in this prospectus.
DESCRIPTION OF EQUITY SECURITIES
We are a Florida corporation. The rights of
our stockholders are governed by the Florida Business Corporation Act, or the FBCA, our amended and restated articles of incorporation
and our amended and restated bylaws. The following summary of the material terms, rights and preferences of our capital stock
is not complete. You should read our amended and restated articles of incorporation, which we refer to as our charter, and our
bylaws, for more complete information before you purchase any of our securities. You should read these documents, copies of which
are available from us upon request at the address set forth under the caption “Where You Can Find More Information,”
in order to more fully understand the terms of our common stock.
Common Stock
General. Our charter provides
that we may issue up to 150,000,000 shares of common stock, par value $0.001 per share, and 100,000,000 shares of
preferred stock, par value $0.0001 per share, all of which preferred stock are undesignated. As of November 1, 2015, 99,800,397
shares of our common stock were issued and outstanding and no shares of preferred stock were issued and outstanding.
Holders of common stock are entitled to one
vote for each share held on all matters submitted to a vote of stockholders and do not have cumulative voting rights. Accordingly,
holders of a majority of the shares of common stock entitled to vote in any election of directors may elect all of the directors
standing for election. Holders of common stock are entitled to receive dividends when, as and if declared by our board of directors
out of funds legally available therefor.
In the event of our liquidation, dissolution
or winding up, after payment of all of our debts and liabilities, the holders of our common stock are entitled to share ratably
in all remaining assets available for distribution after the payment of debts and liabilities and after provision has been made
for each class of stock, if any, having preferences over our common stock. Holders of our common stock, as such, have no preemptive
or other rights and there are no redemption provisions applicable to our common stock. All of our outstanding shares of common
stock are fully paid and nonassessable. The rights, preferences and privileges of holders of common stock are subject to, and
may be adversely affected by, the rights of the holders of shares of any series of preferred stock that we may designate and issue
in the future. In accordance with the rules of the Tel Aviv Stock Exchange, we are allowed to issue securities with preferential
rights relating to dividends, but such securities may not have voting rights.
Dividend Policy. We have never
declared or paid any cash dividends on our capital stock. We currently intend to retain any future earnings to finance the growth
and development of our business and therefore do not anticipate paying any cash dividends in the foreseeable future. Any future
determination to pay cash dividends will be at the discretion of our board of directors and will depend upon our financial condition,
operating results, capital requirements, covenants in our debt instruments (if any), and such other factors as our board of directors
deems relevant.
Transfer Agent and Registrar. The
transfer agent and registrar of our common stock is American Stock Transfer & Trust Company.
Preferred Stock
Our restated articles
of incorporation, as amended, authorizes the issuance of up to 100,000,000 shares of preferred stock with such voting rights,
rights of redemption and other relative rights and preferences as may be determined from time to time by our board of directors.
Accordingly, our board of directors is empowered, without shareholder approval, to issue preferred stock with dividend, liquidation,
conversion, voting or other rights which could adversely affect the voting power or other rights of the holders of our common
stock. The preferred stock could be utilized, under certain circumstances, as a method of discouraging, delaying or preventing
a change in control of our company. We currently have no plan to issue any shares of preferred stock.
Terms. You should refer to the
prospectus supplement relating to the offering of any preferred stock for specific terms of the shares, including the following
terms:
| · | title and stated
or liquidation value; |
| · | number of shares
offered and initial offering price; |
| · | voting rights
and other protective provisions; |
| · | any dividend
rate(s), payment period(s) and/or payment date(s) or method(s) of calculation of any
of those terms that apply to those shares; |
| · | date from which
dividends will accumulate, if applicable; |
| · | terms and amount
of a sinking fund, if any, for purchase or redemption; |
| · | redemption rights,
including conditions and the redemption price(s), if applicable; |
| · | listing on any
national securities exchange; |
| · | terms and conditions,
upon which shares will be convertible into common stock or any other securities, including
the conversion price, rate or other manner of calculation and anti-dilution provisions,
if applicable; |
| · | the relative
ranking and preference as to dividend rights and rights upon liquidation, dissolution
or the winding up of our affairs, including liquidation preference amount; |
| · | any limitation
on issuance of any series of preferred stock ranking senior to or on a parity with that
series of preferred stock as to dividend rights and rights upon liquidation, dissolution
or the winding up of our affairs; |
| · | any other specific
terms, preferences, rights, limitations or restrictions; and |
| · | a discussion
of applicable material U.S. federal income tax consequences. |
The terms of any preferred stock we issue under this prospectus
will be set forth in a certificate of designation. We will file a form of the certificate of designation as an exhibit to the
registration statement that includes this prospectus, or as an exhibit to a filing with the SEC that is incorporated by reference
into this prospectus. The description of preferred stock in any prospectus supplement will not necessarily describe all of the
terms of the preferred stock in detail. You should read the applicable certificate of designation for a complete description of
all of the terms.
Ranking. Unless we provide otherwise
in a prospectus supplement, the preferred stock offered through that supplement will, with respect to dividend rights and rights
upon our liquidation, dissolution or winding up, rank:
| · | senior to all
classes or series of our common stock, and to all other equity securities ranking junior
to the offered shares of preferred stock; |
| · | on a parity with
all of our equity securities ranking on a parity with the offered shares of preferred
stock; and |
| · | junior to all
of our equity securities ranking senior to the offered shares of preferred stock. |
The term “equity securities” does not include convertible
debt securities.
Dividends. Subject to any preferential
rights of any outstanding stock or series of stock, our preferred stockholders may be entitled to receive dividends, when and
as authorized by our board of directors, out of legally available funds, as specified in the applicable prospectus supplement.
Redemption. If we provide for
a redemption right in a prospectus supplement, the preferred stock offered through that prospectus supplement may be subject to
mandatory redemption or redemption at our option, in whole or in part, in each case upon the terms, at the times and at the redemption
prices set forth in that prospectus supplement.
Liquidation Preference. In the
event of our voluntary or involuntary dissolution, liquidation, or winding up, the holders of any series of our preferred stock
may be entitled to receive, after distributions to holders of any series or class of our capital stock ranking senior, an amount
equal to the stated or liquidation value of the shares of the series plus, if applicable, an amount equal to accrued and unpaid
dividends. If the assets and funds to be distributed among the holders of our preferred stock will be insufficient to permit full
payment to the holders, then the holders of our preferred stock may share ratably in any distribution of our assets in proportion
to the amounts that they otherwise would receive on their shares of our preferred stock if the shares were paid in full.
Voting Rights. Unless otherwise
indicated in the applicable prospectus supplement, holders of our preferred stock will not have any voting rights, except as may
be required by applicable law.
Conversion Rights. The terms
and conditions, if any, upon which any series of preferred stock is convertible into common stock or other securities will be
set forth in the prospectus supplement relating to the offering of those shares of preferred stock. These terms typically will
include:
| · | the number of
shares of common stock or other securities into which the preferred stock is convertible; |
| · | the conversion
price (or manner of calculation); |
| · | provisions as
to whether conversion will be at the option of the holders of the preferred stock or
at our option; |
| · | the events, if
any, requiring an adjustment of the conversion price; and |
| · | provisions affecting
conversion in the event of the redemption of that series of preferred stock. |
Transfer Agent and Registrar.
We will identify the transfer agent and registrar for any series of preferred stock offered by this prospectus in a prospectus
supplement.
Warrants
We may issue warrants for the purchase of common
stock. If we offer warrants, we will describe the terms of the warrants in a prospectus supplement. Warrants may be offered independently,
together with other securities offered by any prospectus supplement, or through a dividend or other distribution to stockholders
and may be attached to or separate from other securities. Warrants may be issued under a written warrant agreement to be entered
into between us or the holder or beneficial owner, or we may issue warrants under a written warrant agreement with a warrant agent
specified in a prospectus supplement. A warrant agent would act solely as our agent in connection with the warrants of a particular
series and would not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of
those warrants.
The following are some of the warrant terms
that could be described in a prospectus supplement:
| · | the title of
the warrants; |
| · | the aggregate
number of warrants; |
| · | the price or
prices at which the warrants will be issued; |
| · | the designation,
number and terms of the shares of common stock that may be purchased upon exercise of
the warrants; |
| · | the date, if
any, on and after which the warrants and the securities offered with the warrants, if
any, will be separately transferable; |
| · | the purchase
price for each security purchasable on exercise of the warrants; |
| · | the dates on
which the right to purchase certain securities upon exercise of the warrants will begin
and end; |
| · | the minimum or
maximum number of shares of common stock that may be purchased at any one time upon exercise
of the warrants; |
| · | any anti-dilution
provisions or other adjustments to the exercise price of the warrants; |
| · | the terms of
any right that we may have to redeem the warrants; |
| · | the effect of
any merger, consolidation, sale or other transfer of our business on the warrants and
the applicable warrant agreement, if any; |
| · | information with
respect to book-entry procedures, if any; |
| · | a discussion
of material U.S. federal income tax considerations; and |
| · | other material
terms, including terms relating to transferability, exchange, exercise or amendments
of the warrants. |
Unless otherwise provided
in the applicable prospectus supplement, the warrants and the warrant agreements will be governed by the laws of the State of
New York.
Options
As of November 1,
2015, options to purchase 7,369,278 shares of our common stock at a weighted average exercise price equal to approximately $4.19
per share were outstanding.
Convertible Notes
As of November 1,
2015, there are outstanding our 4.50% convertible notes due 2018 with an aggregate principal amount of $69.0 million. The notes
accrue interest at a rate of 4.50% per year, payable semiannually in arrears on March 15 and September 15 of each year. The convertible
notes mature on September 15, 2018. Holders of the convertible notes may convert their notes into shares of our common stock at
any time prior to the close of business on the business day immediately preceding September 15, 2018. The initial conversion rate
for the Notes is 173.6593 shares of our common stock for each $1,000 principal amount of convertible notes. The conversion rate
is subject to adjustment in some events but will not be adjusted for any accrued and unpaid interest. Prior to September 19, 2016,
we may not redeem any convertible notes, and no sinking fund is provided for the convertible notes. On or after September 19,
2016, we may redeem for cash all or part of the convertible notes under certain conditions.
Florida Anti-Takeover Law Governance
and Certain Charter Provisions
We have elected not
to be subject to the provisions of Sections 607.0901 and 607.0902 of the FBCA. Section 607.0902 of the FBCA prohibits the voting
of shares in a publicly-held Florida corporation that are acquired in a “control share acquisition” unless the holders
of a majority of the corporation’s voting shares (exclusive of shares held by officers of the corporation, inside directors
or the acquiring party) approve the granting of voting rights as to the shares acquired in the control share acquisition or unless
the acquisition is approved by the corporation’s Board of Directors. A “control share acquisition” is defined
as an acquisition that immediately thereafter entitles the acquiring party to vote in the election of directors within each of
the following ranges of voting power: (i) one-fifth or more but less than one-third of all voting power; (ii) one-third or more
but less than a majority of all voting power; and (iii) more than a majority of all voting power.
Sections 607.0901
of the FBCA contains an “affiliated transaction” provision that prohibits a publicly-held Florida corporation from
engaging in a broad range of business combinations or other extraordinary corporate transactions with an “interested shareholder”
unless, among others: (i) the transaction is approved by a majority of disinterested directors before the person becomes an interested
shareholder; (ii) the interested shareholder has owned at least 80% of the corporation’s outstanding voting shares for at
least five years; or (iii) the transaction is approved by the holders of two-thirds of the corporation’s voting shares other
than those owned by the interested shareholder. An interested shareholder is defined as a person who together with affiliates
and associates beneficially owns more than 10% of the corporation’s outstanding voting shares.
NYSE MKT and Tel Aviv Stock Exchange
Our common stock is listed on both the NYSE
MKT and the Tel Aviv Stock Exchange under the symbol “PLX.”
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities, in one or more
series, as either senior or subordinated debt or as senior or subordinated convertible debt. The senior debt securities will rank
equally with any other unsubordinated debt that we may have and may be secured or unsecured. The subordinated debt securities
will be subordinate and junior in right of payment, to the extent and in the manner described in the instrument governing the
debt, to all or some portion of our senior indebtedness. Any convertible debt securities that we may issue will be convertible
into or exchangeable for common stock, preferred stock or other securities of ours or of a third party. Conversion may be mandatory
or at your option and would be at prescribed conversion rates.
The debt securities will be issued under one
or more indentures, which are contracts between us and a national banking association or other eligible party, as trustee. While
the terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus, we will
describe the particular terms of any debt securities that we may offer in more detail in a prospectus supplement (and any free
writing prospectus).
We will issue the senior notes under the senior
indenture which we will enter into with the trustee named in the senior indenture. We will issue the subordinated notes under
the subordinated indenture which we will enter into with the trustee named in the subordinated indenture. We will file forms of
these documents as exhibits to an amendment to the registration statement of which this prospectus is a part. We use the term
“indentures” to refer to both the senior indenture and the subordinated indenture.
The indentures will be qualified under the
Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We use the term “indenture trustee” to refer
to either the senior trustee or the subordinated trustee, as applicable.
The following summaries of the material provisions
of the senior notes, the subordinated notes and the indentures are not complete and are qualified in their entirety by reference
to all of the provisions of the indenture applicable to a particular series of debt securities. You should read the applicable
prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of debt
securities being offered, as well as the complete indentures that contain the terms of the debt securities. Forms of indentures
will be filed as exhibits to an amendment to the registration statement of which this prospectus is a part, and supplemental indentures
and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to an amendment
to the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file
with the SEC. Except as we may otherwise indicate, the terms of the senior indenture and the subordinated indenture are identical.
The following are some of the terms relating
to a series of debt securities that could be described in a prospectus supplement:
| · | principal amount
being offered, and, if a series, the total amount authorized and the total amount outstanding; |
| · | any limit on
the amount that may be issued; |
| · | whether we
will issue the series of debt securities in global form and, if so, the terms and who
the depositary will be; |
| · | principal amount
due at maturity, and whether the debt securities will be issued with any original issue
discount; |
| · | whether and
under what circumstances, if any, we will pay additional amounts on any debt securities
held by a person who is not a United States person for tax purposes, and whether we can
redeem the debt securities if we have to pay such additional amounts; |
| · | annual interest
rate, which may be fixed or variable, or the method for determining the rate, the date
interest will begin to accrue, the dates interest will be payable and the regular record
dates for interest payment dates or the method for determining such dates; |
| · | whether the
debt securities will be secured or unsecured, and the terms of any secured debt; |
| · | terms of the
subordination of any series of subordinated debt; |
| · | place where
payments will be payable; |
| · | restrictions
on transfer, sale or other assignment, if any; |
| · | our right,
if any, to defer payment of interest and the maximum length of any such deferral period; |
| · | date, if any,
after which, the conditions upon which, and the price at which we may, at our option,
redeem the series of debt securities pursuant to any optional or provisional redemption
provisions, and any other applicable terms of those redemption provisions; |
| · | provisions
for a sinking fund, purchase or other analogous fund, if any; |
| · | date, if any,
on which, and the price at which we are obligated, pursuant to any mandatory sinking
fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option
to purchase, the series of debt securities; |
| · | whether the
indenture will restrict our ability or the ability of our subsidiaries to: |
| o | incur
additional indebtedness; |
| o | issue
additional securities; |
| o | pay
dividends or make distributions in respect of our capital stock or the capital stock
of our subsidiaries; |
| o | place
restrictions on our subsidiaries’ ability to pay dividends, make distributions
or transfer assets; |
| o | make
investments or other restricted payments; |
| o | sell
or otherwise dispose of assets; |
| o | enter
into sale-leaseback transactions; |
| o | engage
in transactions with shareholders or affiliates; |
| o | issue
or sell stock of our subsidiaries; or |
| o | effect
a consolidation or merger; |
| · | whether the
indenture will require us to maintain any interest coverage, fixed charge, cash flow-based,
asset-based or other financial ratios; |
| · | a discussion
of any material or special U.S. federal income tax considerations applicable to the debt
securities; |
| · | information
describing any book-entry features; |
| · | procedures
for any auction or remarketing, if any; |
| · | whether the
debt securities are to be offered at a price such that they will be deemed to be offered
at an “original issue discount” as defined in paragraph (a) of Section 1273
of the Internal Revenue Code of 1986, as amended; |
| · | denominations
in which we will issue the series of debt securities, if other than denominations of
$1,000 and any integral multiple thereof; |
| · | if other than
dollars, the currency in which the series of debt securities will be denominated; and |
| · | any other specific
terms, preferences, rights or limitations of, or restrictions on, the debt securities,
including any events of default that are in addition to those described in this prospectus
or any covenants provided with respect to the debt securities that are in addition to
those described above, and any terms that may be required by us or advisable under applicable
laws or regulations or advisable in connection with the marketing of the debt securities. |
Conversion or Exchange Rights
We will set forth in the applicable prospectus
supplement or free writing prospectus the terms on which a series of debt securities may be convertible into or exchangeable for
common stock, preferred stock or other securities of ours, including the conversion or exchange rate, as applicable, or how it
will be calculated, and the applicable conversion or exchange period. We will include provisions as to whether conversion or exchange
is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of our securities
that the holders of the series of debt securities receive upon conversion or exchange would, under the circumstances described
in those provisions, be subject to adjustment, or pursuant to which those holders would, under those circumstances, receive other
property upon conversion or exchange, for example in the event of our merger or consolidation with another entity.
Consolidation, Merger or Sale
The indentures in the forms to be filed as
exhibits to an amendment to the registration statement of which this prospectus is a part will not contain any covenant that restricts
our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our assets.
However, any successor of ours or acquiror of such assets would have to assume all of our obligations under the indentures and
the debt securities, as appropriate. In addition, the terms of any securities that we may offer pursuant to this prospectus may
limit our ability to merge or consolidate or otherwise sell, convey, transfer or otherwise dispose of all or substantially all
of our assets, which terms would be set forth in the applicable prospectus supplement and supplemental indenture.
If the debt securities are convertible for
our other securities, the person with whom we consolidate or merge or to whom we sell all of our property would have to make provisions
for the conversion of the debt securities into securities that the holders of the debt securities would have received if they
had converted the debt securities before the consolidation, merger or sale.
Events of Default Under the Indenture
The following are events of default under the
indentures to be filed as exhibits to an amendment to the registration statement with respect to any series of debt securities
that we may issue:
| · | if we fail
to pay interest when due and payable and our failure continues for 30 days and the time
for payment has not been extended or deferred; |
| · | if we fail
to pay the principal or premium, if any, when due and payable and the time for payment
has not been extended or deferred; |
| · | if we fail
to observe or perform any other covenant contained in the debt securities or the indentures
and our failure continues for 90 days after we receive notice from the indenture trustee
or holders of at least 25% in aggregate principal amount of the outstanding debt securities
of the applicable series; and |
| · | if specified
events of bankruptcy, insolvency or reorganization occur. |
If an event of default with respect to debt
securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the
indenture trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series,
by notice to us in writing, and to the indenture trustee if notice is given by such holders, may declare the unpaid principal
of, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet
point above occurs with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities
then outstanding would be due and payable without any notice or other action on the part of the indenture trustee or any holder.
The holders of a majority in principal amount
of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series
and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless
we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of
default.
Subject to the terms of the indentures, if
an event of default under an indenture occurs and continues, the indenture trustee would be under no obligation to exercise any
of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt
securities, unless such holders have offered the indenture trustee reasonable indemnity. The holders of a majority in principal
amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the indenture trustee, or exercising any trust or power conferred on the indenture
trustee, with respect to the debt securities of that series, provided that:
| · | the direction
so given by the holder is not in conflict with any law or the applicable indenture; and |
| · | subject to
its duties under the Trust Indenture Act, the indenture trustee need not take any action
that might involve it in personal liability or might be unduly prejudicial to the holders
not involved in the proceeding. |
A holder of the debt securities of any series
will have the right to institute a proceeding under the indentures or to appoint a receiver or trustee, or to seek other remedies
only if:
| · | the holder
has given written notice to the indenture trustee of a continuing event of default with
respect to that series; |
| · | the holders
of at least 25% in aggregate principal amount of the outstanding debt securities of that
series have made written request, and such holders have offered reasonable indemnity
to the indenture trustee to institute the proceeding as trustee; and |
| · | the indenture
trustee does not institute the proceeding, and does not receive from the holders of a
majority in aggregate principal amount of the outstanding debt securities of that series
other conflicting directions within 60 days after the notice, request and offer. |
These limitations do not apply to a suit instituted
by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the
indenture trustee regarding our compliance with specified covenants in the indentures.
Supplemental Indenture
We and the indenture trustee may from time
to time and at any time enter into an indenture or supplemental indenture without the consent of any holders for one or more of
the following purposes:
| · | to evidence
the succession of another corporation, and the assumption by the successor corporation
of our covenants, agreements and obligations under the indenture and debt securities; |
| · | to add to our
covenants such new covenants, restrictions, conditions or provisions for the protection
of the holders, and to make the occurrence, or the occurrence and continuance, of a default
in any of such additional covenants, restrictions, conditions or provisions an event
of default; |
| · | to add to or
change any of the provisions of the indenture to provide that bearer securities may be
registrable as to principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on bearer securities, to permit bearer securities
to be issued in exchange for registered securities, to permit bearer securities to be
issued in exchange for bearer securities of other authorized denominations or to permit
or facilitate the issuance of securities in uncertificated form, provided that such action
shall not adversely affect the interests of the holders of the securities or any related
coupons, including provisions necessary or desirable to provide for or facilitate the
administration of the trusts hereunder; |
| · | to modify,
eliminate or add to any of the provisions of the indenture to such extent as necessary
to effect the qualification of the indenture under the Trust Indenture Act, and to add
to the indenture such other provisions as may be expressly permitted by the trust indenture
act, excluding however, the provisions referred to in Section 316(a)(2) of the Trust
Indenture Act; |
| · | to modify,
eliminate or add to any of the provisions of the indenture; |
| · | to cure any
ambiguity or to correct or supplement any provision contained in the indenture or in
any supplemental indenture which may be defective or inconsistent with other provisions; |
| · | to convey,
transfer, assign, mortgage or pledge any property to or with the trustee; |
| · | to make provisions
in regard to matters or questions arising under the indenture, so long such other provisions
to do not materially affect the interest of any other holder of debt securities; |
| · | to secure any
series of security; and |
| · | to evidence
and provide for the acceptance and appointment of a successor trustee and to add or change
any provisions of the indenture as necessary to provide for or facilitate the administration
of the trust by more than one trustee. |
In addition, we and the trustee, with the consent
of the holders of not less than 66-2/3% in aggregate principal of the outstanding debt securities of each series that is affected,
may from time to time and at any time enter into an indenture or supplemental indenture for the purpose of adding any provisions
to or changing in any manner the rights of the holders of the securities of such series and any related coupons of the indenture,
provided that no such supplemental indenture shall:
| · | extend the
fixed maturity of any securities, or reduce the principal amount thereof or premium,
if any, or reduce the rate or extend the time of payment of interest, without the extent
of the holder so affected; |
| · | reduce the
aforesaid percentage of securities, the consent of the holders of which is required for
any such supplemental indenture, without the consent of all holders of outstanding series
of debt securities; or |
| · | modify any
of the above provisions. |
Discharge
Each indenture to be filed as an exhibit to
an amendment to the registration statement will provide that we can elect to be discharged from our obligations with respect to
one or more series of debt securities, except for specified obligations, including obligations to:
| · | register the
transfer or exchange of debt securities of the series; |
| · | replace stolen,
lost or mutilated debt securities of the series; |
| · | maintain paying
agencies; |
| · | hold monies
for payment in trust; |
| · | recover excess
money held by the indenture trustee; |
| · | compensate
and indemnify the indenture trustee; and |
| · | appoint any
successor trustee. |
In order to exercise our rights to be discharged, we must deposit
with the indenture trustee money or government obligations, or a combination thereof, sufficient to pay all the principal of,
any premium and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series
only in fully registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement or free
writing prospectus, in denominations of $1,000 and any integral multiple thereof. The indentures will provide that we may issue
debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or
on behalf of, The Depository Trust Company or another depositary named by us and identified in a prospectus supplement or free
writing prospectus with respect to that series.
At the option of the holder, subject to the
terms of the indentures and the limitations applicable to global securities described in the applicable prospectus supplement
or free writing prospectus, the holder of the debt securities of any series can exchange the debt securities for other debt securities
of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indentures and
the limitations applicable to global securities set forth in the applicable prospectus supplement or free writing prospectus,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or
with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the
security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the
debt securities that the holder presents for transfer or exchange, we will make no service charge for any registration of transfer
or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement
or free writing prospectus the security registrar, and any transfer agent in addition to the security registrar, that we initially
designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer
agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer
agent in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities of
any series, we will not be required to:
| · | issue, register
the transfer of, or exchange any debt securities of any series being redeemed in part
during a period beginning at the opening of business 15 days before the day of mailing
of a notice of redemption of any debt securities that may be selected for redemption
and ending at the close of business on the day of the mailing; or |
| · | register the
transfer of or exchange any debt securities so selected for redemption, in whole or in
part, except the unredeemed portion of any debt securities we are redeeming in part. |
Information Concerning the Indenture Trustee
The indenture trustee, other than during the
occurrence and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically
set forth in the applicable indenture. Upon an event of default under an indenture, the indenture trustee must use the same degree
of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the indenture
trustee is under no obligation to exercise any of the powers given it by an indenture at the request of any holder of debt securities
unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable
prospectus supplement or free writing prospectus, we will make payment of the interest on any debt securities on any interest
payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close
of business on the regular record date for the interest.
We will pay principal of and any premium and
interest on the debt securities of a particular series at the office of the paying agents designated by us, except that, unless
we otherwise indicate in the applicable prospectus supplement or free writing prospectus, we may make interest payments by check
which we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in a prospectus supplement
or free writing prospectus, we will designate an office or agency of the indenture trustee in the City of New York as our sole
paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement
or free writing prospectus any other paying agents that we initially designate for the debt securities of a particular series.
We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the indenture
trustee for the payment of the principal of or any premium or interest on any debt securities which remains unclaimed at the end
of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the
debt security thereafter may look only to us for payment thereof.
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.
Subordination of Subordinated Debt Securities
The subordinated debt securities will be subordinate
and junior in priority of payment to certain of our other indebtedness to the extent described in a prospectus supplement or free
writing prospectus. The indentures in the forms initially filed as exhibits to the registration statement of which this prospectus
is a part do not limit the amount of indebtedness which we may incur, including senior indebtedness or subordinated indebtedness,
and do not limit us from issuing any other debt, including secured debt or unsecured debt.
PLAN OF DISTRIBUTION
We may sell the securities from time to time
pursuant to underwritten public offerings, negotiated transactions, at the market offerings, block trades or a combination of
these methods. We may sell the securities to or through underwriters or dealers, through agents, or directly to one or more purchasers.
We may distribute securities from time to time
in one or more transactions:
· at
a fixed price or prices, which may be changed;
· at
market prices prevailing at the time of sale;
· at
prices related to such prevailing market prices; or
· at
negotiated prices.
Unless stated otherwise in the applicable prospectus
supplement, the obligations of any underwriter to purchase securities will be subject to certain conditions, and the underwriter
will be obligated to purchase all of the applicable securities if any are purchased. If a dealer is used in a sale, we may sell
the securities to the dealer as principal. The dealer may then resell the securities to the public at varying prices to be determined
by the dealer at the time of resale.
We or our agents may solicit offers to purchase
securities from time to time. Unless stated otherwise in the applicable prospectus supplement, any agent will be acting on a best
efforts basis for the period of its appointment.
In connection with the sale of securities,
underwriters or agents may receive compensation (in the form of discounts, concessions or commissions) from us or from purchasers
of securities for whom they may act as agents. Underwriters may sell securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers
for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution of securities may be deemed
to be underwriters, as that term is defined in the Securities Act, and any discounts or commissions received by them from us and
any profits on the resale of the securities by them may be deemed to be underwriting discounts and commissions under the Securities
Act. We will identify any such underwriter or agent, and we will describe any compensation paid to them, in the related prospectus
supplement.
Underwriters, dealers and agents may be entitled
under agreements with us to indemnification against and contribution toward certain civil liabilities, including liabilities under
the Securities Act.
If stated in the applicable prospectus supplement,
we will authorize agents and underwriters to solicit offers by certain specified institutions or other persons to purchase securities
at the public offering price set forth in the prospectus supplement under delayed delivery contracts providing for payment and
delivery on a specified date in the future. Institutions with whom these contracts 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. These contracts will be subject only to those conditions set forth in the applicable
prospectus supplement and the applicable prospectus supplement will set forth the commission payable for solicitation of these
contracts. The obligations of any purchaser under any such contract will be subject to the condition that the purchase of the
securities shall not be prohibited at the time of delivery under the laws of the jurisdiction to which the purchaser is subject.
The underwriters and other agents will not have any responsibility in respect of the validity or performance of these contracts.
The securities may or may not be listed on
a national securities exchange or traded in the over-the-counter market, as set forth in the applicable prospectus supplement.
No assurance can be given as to the liquidity of the trading market for any of our securities. Any underwriter may make a market
in these securities. However, no underwriter will be obligated to do so, and any underwriter may discontinue any market making
at any time, without prior notice.
If underwriters or dealers are used in the
sale, until the distribution of the securities is completed, SEC rules may limit the ability of any underwriters and selling group
members to bid for and purchase the securities. As an exception to these rules, representatives of any underwriters are permitted
to engage in certain transactions that stabilize the price of the securities. These transactions may consist of bids or purchases
for the purpose of pegging, fixing or maintaining the price of the securities. If the underwriters create a short position in
the applicable securities in connection with any offering (in other words, if they sell more securities than are set forth on
the cover page of the applicable prospectus supplement) the representatives of the underwriters may reduce that short position
by purchasing securities in the open market. The representatives of the underwriters may also elect to reduce any short position
by exercising all or part of any over-allotment option we may grant to the underwriters, as described in the prospectus supplement.
The representatives of the underwriters may also impose a penalty bid on certain underwriters and selling group members. This
means that if the representatives purchase securities in the open market to reduce the underwriters’ short position or to
stabilize the price of the securities, they may reclaim the amount of the selling concession from the underwriters and selling
group members who sold those shares as part of the offering.
In general, purchases of a security for the
purpose of stabilization or to reduce a short position could cause the price of the security to be higher than it might be in
the absence of those purchases. The imposition of a penalty bid might also have an effect on the price of the securities to the
extent that it discourages resales of the securities. The transactions described above may have the effect of causing the price
of the securities to be higher than it would otherwise be. If commenced, the representatives of the underwriters may discontinue
any of the transactions at any time. In addition, the representatives of any underwriters may determine not to engage in those
transactions or that those transactions, once commenced, may be discontinued without notice.
Certain of the underwriters or agents and their
associates may engage in transactions with and perform services for us or our affiliates in the ordinary course of their respective
businesses.
In no event will the commission or discount
received by any Financial Industry Regulatory Authority, or FINRA, member or independent broker-dealer participating in a distribution
of securities exceed 8% of the aggregate principal amount of the offering of securities in which that FINRA member or independent
broker-dealer participates.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement
on Form S-3 that we filed with the SEC under the Securities Act. You should rely only on the information contained in this prospectus
or incorporated by reference in this prospectus. We have not authorized anyone else to provide you with different information.
You should not assume that the information in this prospectus is accurate as of any date other than the date on the front cover
of this prospectus, regardless of the time of delivery of this prospectus or any sale of securities.
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. Our SEC filings, including the registration statement and exhibits, are available
to the public at the SEC’s website at http://www.sec.gov. You may also read, without charge, and copy the documents we file,
at the SEC’s public reference rooms at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. You can request copies of
these documents by writing to the SEC and paying a fee for the copying cost. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. In addition, since we are also listed on the Tel Aviv Stock Exchange, we submit copies
of all our filings with the SEC to the Israeli Securities Authority and the Tel Aviv Stock Exchange. Such copies can be retrieved
electronically through the Tel Aviv Stock Exchange’s internet messaging system (www.maya.tase.co.il) and through the MAGNA
distribution site of the Israeli Securities Authority (www.magna.isa.gov.il).
We maintain an Internet
site at www.protalix.com. Webcasts of presentations we make at certain conferences may also be available on our website from time
to time. We have not incorporated by reference into this prospectus the information on our website, and you should not consider
it to be a part of this prospectus.
This prospectus does not contain all of the
information included in the registration statement. We have omitted certain parts of the registration statement in accordance
with the rules and regulations of the SEC. For further information, we refer you to the registration statement, including its
exhibits and schedules, which may be found at the SEC’s website at http://www.sec.gov. Statements contained in this prospectus
and any accompanying prospectus supplement about the provisions or contents of any contract, agreement or any other document referred
to are not necessarily complete. Please refer to the actual exhibit for a more complete description of the matters involved.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by
reference” the information we file with the SEC, which means we can disclose important information to you by referring you
to those documents. The information we incorporate by reference is an important part of this prospectus, and certain information
that we will later file with the SEC will automatically update and supersede this information. We incorporate by reference the
documents listed below as well as any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act from the date of the initial registration statement and prior to the effectiveness of this registration statement, and any
filings made after the date of this prospectus until we sell all of the securities under this prospectus, except that we do not
incorporate any document or portion of a document that is “furnished” to the SEC, but not deemed “filed.”
The following documents filed with the SEC are incorporated by reference in this prospectus:
| · | our
Annual Report on Form 10-K for the year ended December 31, 2014; |
| · | our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2015; June 30, 2015;
and September 30, 2015; |
| · | our
Current Reports on Form 8-K filed with the SEC on January 5, 2015 (but not including
Item 2.02 furnished therewith); January 8, 2015; February 2, 2015; February 12, 2015;
March 12, 2015 (but not including Item 2.02 furnished therewith); May 7, 2015 (but not
including Item 2.02 furnished therewith); August 10, 2015 (but not including Item 2.02
furnished therewith); September 9, 2015; October 13, 2015 (but not including Item 2.02
furnished therewith); October 19, 2015; November 9, 2015 (but not including Item 2.02
furnished therewith); and November 16, 2015; |
| · | our
definitive Proxy Statement for our Annual Meeting of Shareholders held on November 8,
2015; and |
| · | the
description of our common stock included in our registration statement on Form 8-A12B
(File No. 001-33357) filed with the SEC on March 9, 2007, including any amendment
or reports filed for the purpose of updating such description. |
Copies of these filings are available at no
cost on our website, www.protalix.com. In addition, you may request a copy of these filings and any amendments thereto at no cost,
by writing or telephoning us. Those copies will not include exhibits to those documents unless the exhibits are specifically incorporated
by reference in the documents or unless you specifically request them. You may also request copies of any exhibits to the registration
statement at no cost. Please direct your request to:
Yossi Maimon
2 Snunit Street, Science Park
P.O. Box 455
Carmiel, Israel 20100
+972-4-988-9488
You should rely only on the information in this prospectus, any
prospectus supplement, any applicable free writing prospectus and the documents that are incorporated by reference. We have not
authorized anyone else to provide you with different information. We are not offering these securities in any state where the
offering is prohibited by law. You should not assume that the information in this prospectus, any prospectus supplement, any applicable
free writing prospectus or any incorporated document is accurate as of any date other than the date of the document.
LEGAL MATTERS
The validity of the issuance of the shares
of common stock offered hereby will be passed upon for us by Morrison & Foerster LLP, New York, New York.
EXPERTS
The financial statements and management’s
assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on
Internal Control over Financial Reporting) incorporated in this Prospectus by reference to the Annual Report on Form 10-K for
the year ended December 31, 2014 have been so incorporated in reliance on the report of Kesselman & Kesselman, certified public
accountants in Israel, a member firm of PricewaterhouseCoopers International Limited, an independent registered public accounting
firm, given on the authority of said firm as experts in auditing and accounting.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth an estimate
of the fees and expenses relating to the offering of the securities being registered hereby, other than underwriting discounts
and commissions, all of which shall be borne by the Registrant. All of such fees and expenses, except for the SEC registration
fee, are estimated:
SEC registration fee | |
$ | 10,070 | |
Transfer agent fees and expenses | |
| * | |
Legal fees and expenses | |
| * | |
Printing fees and expenses | |
| * | |
Accounting fees and expenses | |
| * | |
Miscellaneous fees and expenses | |
| * | |
Total | |
| * | |
* These
fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
The applicable prospectus supplement will set forth the estimated amount of expenses of any offering of securities.
Item 15. Indemnification of Directors
and Officers.
General Corporation Law
We indemnify our directors and officers to
the maximum extent permitted by Florida law for the costs and liabilities of acting or failing to act in an official capacity.
In addition, we have entered into indemnification agreements with each of our executive officers and directors to provide them
with the maximum indemnification allowed under our amended and restated bylaws and applicable Florida law, including indemnification
for all judgments and expenses incurred as the result of any lawsuit in which such person is named as a defendant by reason of
being our director, officer or employee, to the extent indemnification is permitted by the laws of Florida. We believe that the
indemnification agreements will enhance our ability to continue to attract and retain qualified individuals to serve as directors
and officers.
In addition, we have entered into indemnification
agreements with each of our executive officers and directors, to provide them with the maximum indemnification allowed under our
bylaws and applicable Florida law, including indemnification for all judgments and expenses incurred as the result of any lawsuit
in which such person is named as a defendant by reason of being our director, officer or employee, to the extent indemnification
is permitted by the laws of Florida. We believe that the indemnification agreements will enhance our ability to continue to attract
and retain qualified individuals to serve as directors and officers.
The articles of association of Protalix Ltd.,
our wholly-owned subsidiary, allow it to exculpate, indemnify, and insure its office holders to the fullest extent permitted by
Israeli law, as described below. Accordingly, Protalix Ltd. has entered into indemnification agreements with each of its officers
and directors undertaking to indemnify them to the fullest extent permitted by Israeli law. As required by law, the indemnification
is limited to events determined as foreseeable by the board of directors of Protalix Ltd. based on the activities of Protalix
Ltd. upon its adoption, and to an amount determined by the board of directors as reasonable under the circumstances.
We purchase and maintain a directors and officers
liability insurance policy which covers the liability of our directors and officers on a "claims made" basis for their
ongoing activity since December 28, 2006, with a limit of $20,000,000 for any one occurrence and in the aggregate for the annual
period with the addition of 20% of the above limit for legal defense costs (in Israel).
Furthermore, we purchase and maintain a Side
A Excess and Difference In Conditions insurance which covers the non indemnifiable liability of our directors and officers on
a "claims made" basis for their ongoing activity since December 28, 2006, with a limit of $5,000,000 for any one occurrence
and in the aggregate for the annual period with the addition of 20% of the above limit for legal defense costs (in Israel).
As of the date of hereof, no claims for directors’
and officers’ liability insurance have been filed under those policies and neither us nor Protalix Ltd. is aware of any
pending or threatened litigation or proceeding involving any of our directors or officers, or those of Protalix Ltd., in which
indemnification is sought.
We have undertaken to fulfill and honor in
all respects the obligations of Protalix Ltd. pursuant to any indemnification agreements between Protalix Ltd. and its directors
in effect prior to December 31, 2006 and to provide any substitute director and the officers of Protalix Ltd. with similar
indemnification agreements. We further agreed that any provision of Protalix Ltd.’s charter documents that relate to exculpation
and indemnification of officers and directors of Protalix Ltd. will not be amended, repealed, or otherwise modified in any manner
that would adversely affect the rights of the directors and officers, unless such modification is required by any applicable law.
Under Israeli law, an Israeli company may not
exculpate an office holder from liability for a breach of the duty of loyalty of the office holder. An Israeli company may exculpate
an office holder in advance from liability, in whole or in part, for damages caused due to a breach of duty of care owed to the
company (other than in the event that such liability arises out of a breach of duty of care to the company upon distribution)
but only if a provision authorizing such exculpation is inserted in its articles of association. Protalix Ltd.’s articles
of association include such a provision.
An Israeli company may indemnify an office
holder in respect of certain liabilities or expenses either in advance of an event or following an event provided a provision
authorizing such indemnification is inserted in its articles of association. Protalix Ltd.’s articles of association contain
such an authorization. An Israeli company may indemnify an office holder against the following liabilities or expenses incurred
for acts performed as an office holder:
(A) financial liability
imposed on or incurred by him or her in favor of another person pursuant to a judgment, settlement or arbitrator’s award
approved by a court;
(B) reasonable litigation
expenses, including attorneys’ fees, incurred by the office holder as a result of an investigation or proceeding instituted
against him or her by an authority authorized to conduct such investigation or proceeding, provided that (i) no indictment was
filed against such office holder as a result of such investigation or proceeding; and (ii) no financial liability, such as a criminal
penalty, was imposed upon him or her as a substitute for the criminal proceeding as a result of such investigation or proceeding
or, if such financial liability was imposed, it was imposed with respect to an offense that does not require proof of criminal
intent or with regard to a monetary sanction;
(C) reasonable litigation
expenses, including attorneys’ fees, incurred by the office holder or imposed by a court in proceedings instituted against
him or her by the company, on its behalf or by a third party or in connection with criminal proceedings in which the office holder
was acquitted or as a result of a conviction for a crime that does not require proof of criminal intent; and
(D) A payment which the
office holder is obligated to make to an injured party as set forth in Section 52(54)(a)(1)(a) of the Israeli Securities Law,
5278-1968, as amended (“Israeli Securities Law”), and reasonable litigation expenses, including attorneys’ fees,
that the office holder incurred in connection with a proceeding under Chapters H’3, H’4 or I’1 of the Israeli
Securities Law.
An undertaking provided in advance by an Israeli
company to indemnify an office holder with respect to (A), as abovementioned, must be limited to events which, in the opinion
of the board of directors, can be foreseen based on the company’s activities when the undertaking to indemnify is given,
and to an amount or according to criteria determined by the board of directors as reasonable under the circumstances, and such
undertaking shall detail the abovementioned events and amount or criteria. We are permitted to provide an office holder advanced
payments to cover expenses covered under (D) above.
An Israeli company may insure an office holder
against the following liabilities incurred for acts performed as an office holder:
| · | a breach of
duty of care to the company or to a third party; |
| · | a breach of
duty of loyalty to the company, to the extent that the office holder acted in good faith
and had a reasonable basis to believe that the act would not be detrimental to the interests
of the company; |
| · | a financial
liability imposed on the office holder in favor of a third party in respect of an act
performed in his or her capacity as an office holder; and |
| · | A payment which
the office holder is obligated to make to an injured party as set forth in Section 52(54)(a)(1)(a)
of the Israeli Securities Law and reasonable litigation expenses, including attorneys’
fees, that the office holder incurred in connection with a proceeding under Chapters
H’3, H’4 or I’1 of the Israeli Securities Law. |
An Israeli company may not insure, indemnify or exculpate an office
holder against any of the following:
| · | a breach of
duty of loyalty, except to the extent that the office holder acted in good faith and
had a reasonable basis to believe that the act would not be detrimental to the interests
of the company; |
| · | a grossly negligent
or intentional violation of an office holder’s duty of care; |
| · | an act or omission
committed with intent to derive illegal personal benefit; or |
| · | a fine, civil
fine, monetary sanction or ransom levied against the office holder. |
Under the Israeli law, exculpation, indemnification,
and insurance of office holders must be approved by the board of directors of Protalix Ltd. and, in respect of directors of Protalix
Ltd., also by the shareholders of Protalix Ltd. Such approvals were properly obtained.
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to our directors and officers or persons controlling us pursuant to the foregoing
provisions, or otherwise, we have been advised that, in the opinion of the SEC, such indemnification is against public policy
as expressed in the Securities Act, and is, therefore, unenforceable. With respect to insurance and indemnification for liabilities
and expenses arising under the Israeli Securities Law, such insurance and indemnification is permissible only to the extent described
in this Item 6.
We also have purchased insurance in the aggregate
amount of $1,000,000 for our directors and officers against all of the costs of such indemnification or against liabilities arising
from acts or omissions of the insured person in cases where we may not have power to indemnify the person against such liabilities.
Such policy will be in a run-off “tail” coverage phase as of December 31, 2006 and will cover those individuals who
were our officers and directors prior to the merger we effected on such date for a period of six-years after such individual resigned
his or her position with our company.
Item 16. List of Exhibits.
Number |
Description |
|
|
|
|
1.1* |
Form of Underwriting or Purchase Agreement |
|
4.1* |
Form of Certificate of Designation for Preferred Stock |
|
4.2* |
Form Specimen of Certificate representing Preferred Stock |
|
4.3 |
Indenture for Senior Securities |
|
4.4 |
Indenture for Subordinated Securities |
|
4.5* |
Form of Warrant Agreement |
|
4.6* |
Form of Warrant |
|
5.1** |
Opinion of Morrison & Foerster LLP as to the validity of the securities registered
hereunder |
|
12.1 |
Statement regarding Computation of Ratios |
|
23.1** |
Consent of Kesselman & Kesselman, Certified Public Accountants (Israel), a member
firm of Pricewaterhouse Coopers International Limited, an independent registered public accounting firm |
|
23.2** |
Consent of Morrison & Foerster LLP (included in Exhibit 5.1) |
|
24.1** |
Power of Attorney (included on the signature page hereto) |
|
25.1* |
Statement of eligibility of Trustee for Indenture for Senior Securities |
|
25.2* |
Statement of eligibility of Trustee for Indenture for Subordinated Securities |
|
* To be filed by amendment or as an exhibit to a current report
of the Company on Form 8-K and incorporated herein by reference.
** Previously filed.
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which
offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in “Calculation
of Registration Fee” table in the effective registration statement; and
(iii) To include any material information
with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii)
and (a)(1)(iii) 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 SEC by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining
any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means
of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser:
(i) If the registrant is relying on Rule
430B:
(A) Each prospectus filed by the Registrant
pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed
part of and included in the registration statement; and
(B) Each prospectus required to be filed
pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date
such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities
in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement
or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is a 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 a part of the registration statement or made in any such document immediately prior to such effective date;
or
(ii) If the Registrant is subject to Rule
430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included
in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in
a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to
a purchaser with a time of contract of sale prior to such first use, 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 date
of first use.
(5) That, for the purpose of determining
liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned Registrant undertakes that in a primary offering
of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities
to such purchaser:
(i) Any preliminary prospectus or prospectus
of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating
to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing
prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer
in the offering made by the undersigned Registrant to the purchaser.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the respective Registrant of expenses incurred or paid by a director, officer,
or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
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 Tel Aviv, State of Israel, on the 27th day of November, 2015.
|
PROTALIX BIO THERAPEUTICS, INC. |
|
|
|
By: |
/s/ Yossi Maimon |
|
|
Yossi Maimon |
|
|
Vice President and Chief Financial Officer |
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated:
Signatures |
|
Capacity |
|
Date |
|
|
|
|
|
/s/ * |
|
President and Chief Executive |
|
November 27, 2015 |
Moshe Manor |
|
Officer (Principal Executive Officer) and Director |
|
|
|
|
|
|
|
/s/ Yossi Maimon |
|
Chief Financial Officer, Treasurer and Secretary |
|
November 27, 2015 |
Yossi Maimon |
|
(Principal Financial and Accounting
Officer) |
|
|
|
|
|
|
|
/s/ * |
|
Chairman of the Board of Directors |
|
November 27, 2015 |
Shlomo Yanai |
|
|
|
|
|
|
|
|
|
/s/ * |
|
Director |
|
November 27, 2015 |
Zeev Bronfeld |
|
|
|
|
|
|
|
|
|
/s/ * |
|
Director |
|
November 27, 2015 |
Amos Bar-Shalev |
|
|
|
|
|
|
|
|
|
/s/ * |
|
Director |
|
November 27, 2015 |
Yodfat Harel Buchris |
|
|
|
|
|
|
|
|
|
/s/ * |
|
Director |
|
November 27, 2015 |
Roger D. Kornberg, Ph.D. |
|
|
|
|
|
|
|
|
|
/s/ * |
|
Director |
|
November 27, 2015 |
Aharon Schwartz, Ph.D. |
|
|
|
|
|
|
|
|
|
|
*By: |
/s/
Yossi Maimon |
|
|
|
|
|
Yossi Maimon
Attoney-in-Fact |
|
|
|
|
*
EXHIBIT INDEX
Number |
Description |
|
|
|
|
1.1* |
Form of Underwriting or Purchase Agreement |
|
4.1* |
Form of Certificate of Designation for Preferred Stock |
|
4.2* |
Form Specimen of Certificate representing Preferred Stock |
|
4.3 |
Indenture for Senior Securities |
|
4.4 |
Indenture for Subordinated Securities |
|
4.5* |
Form of Warrant Agreement |
|
4.6* |
Form of Warrant |
|
5.1** |
Opinion of Morrison & Foerster LLP as to the validity of the securities registered
hereunder |
|
12.1 |
Statement regarding Computation of Ratios |
|
23.1** |
Consent of Kesselman & Kesselman, Certified Public Accountants (Israel), a member
firm of Pricewaterhouse Coopers International Limited, an independent registered public accounting firm |
|
23.2** |
Consent of Morrison & Foerster LLP (included in Exhibit 5.1) |
|
24.1** |
Power of Attorney (included on the signature page hereto) |
|
25.1* |
Statement of eligibility of Trustee for Indenture for Senior Securities |
|
25.2* |
Statement of eligibility of Trustee for Indenture for Subordinated Securities |
|
* To be filed by amendment or as an exhibit to a current report
of the Company on Form 8-K and incorporated herein by reference.
** Previously filed.
Exhibit 4.3
Protalix BioTherapeutics, Inc.,
Issuer
AND
____________________,
Trustee
____________________
INDENTURE
Dated as of _____ ___, 201_
____________________
Table
of Contents*
CROSS-REFERENCE TABLE*
Section of Trust Indenture Act of 1939, as amended |
|
Section of
Indenture |
310(a) |
|
7.9 |
310(b) |
|
7.8 |
310(c) |
|
Inapplicable |
311(a) |
|
7.13 |
311(b) |
|
7.13 |
311(c) |
|
Inapplicable |
312(a) |
|
5.01, 5.02(a) |
312(b) |
|
5.2(c) |
312(c) |
|
5.2(c) |
313(a) |
|
5.4(a) |
313(b) |
|
5.4(b) |
313(c) |
|
5.4(b) |
313(d) |
|
5.4(c) |
314(a) |
|
5.3(a) |
314(b) |
|
Inapplicable |
314(c) |
|
13.7(a) |
314(d) |
|
Inapplicable |
314(e) |
|
13.7(b) |
314(f) |
|
Inapplicable |
315(a) |
|
7.1(b) |
315(b) |
|
7.14 |
315(c) |
|
7.1(a) |
315(d) |
|
7.1(b) |
315(e) |
|
6.7 |
316(a) |
|
6.6, 8.4 |
316(b) |
|
6.4 |
316(c) |
|
8.1 |
317(a) |
|
6.2 |
317(b) |
|
4.3 |
318(a) |
|
13.9 |
318(c) |
|
13.9 |
*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.
Table
of Contents
(continued)
|
|
Page |
|
|
|
ARTICLE I |
DEFINITIONS |
1 |
|
|
|
Section 1.1 |
Definitions of Terms |
1 |
|
|
|
ARTICLE II |
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
6 |
|
|
|
Section 2.1 |
Designation and Terms of Securities |
6 |
|
|
|
Section 2.2 |
Form of Securities and Trustee’s Certificate |
8 |
|
|
|
Section 2.3 |
Denominations; Provisions for Payment |
8 |
|
|
|
Section 2.4 |
Execution and Authentication |
10 |
|
|
|
Section 2.5 |
Registration of Transfer and Exchange |
11 |
|
|
|
Section 2.6 |
Temporary Securities |
12 |
|
|
|
Section 2.7 |
Mutilated, Destroyed, Lost or Stolen Securities |
12 |
|
|
|
Section 2.8 |
Cancellation |
13 |
|
|
|
Section 2.9 |
Benefits of Indenture |
13 |
|
|
|
Section 2.10 |
Authenticating Agent |
13 |
|
|
|
Section 2.11 |
Global Securities |
14 |
|
|
|
Section 2.12 |
No Obligation of the Trustee |
15 |
|
|
|
ARTICLE III |
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
16 |
|
|
|
Section 3.1 |
Redemption |
16 |
|
|
|
Section 3.2 |
Notice of Redemption |
16 |
|
|
|
Section 3.3 |
Payment Upon Redemption |
17 |
|
|
|
Section 3.4 |
Sinking Fund |
18 |
|
|
|
Section 3.5 |
Satisfaction of Sinking Fund Payments with Securities |
18 |
|
|
|
Section 3.6 |
Redemption of Securities for Sinking Fund |
18 |
|
|
|
ARTICLE IV |
CERTAIN COVENANTS |
19 |
|
|
|
Section 4.1 |
Payment of Principal, Premium and Interest |
19 |
|
|
|
Section 4.2 |
Maintenance of Office or Agency |
19 |
Table
of Contents
(continued)
|
|
Page |
|
|
|
Section 4.3 |
Paying Agents |
19 |
|
|
|
Section 4.4 |
Appointment to Fill Vacancy in Office of Trustee |
20 |
|
|
|
Section 4.5 |
Compliance with Consolidation Provisions |
20 |
|
|
|
Section 4.6 |
Statement by Officers as to Default |
20 |
|
|
|
ARTICLE V |
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
21 |
|
|
|
Section 5.1 |
Company to Furnish Trustee Names and Addresses of Securityholders |
21 |
|
|
|
Section 5.2 |
Preservation of Information; Communications with Securityholders |
21 |
|
|
|
Section 5.3 |
Reports by the Company |
21 |
|
|
|
Section 5.4 |
Reports by the Trustee |
22 |
|
|
|
ARTICLE VI |
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
22 |
|
|
|
Section 6.1 |
Events of Default |
22 |
|
|
|
Section 6.2 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
25 |
|
|
|
Section 6.3 |
Application of Moneys Collected |
26 |
|
|
|
Section 6.4 |
Limitation on Suits |
26 |
|
|
|
Section 6.5 |
Rights and Remedies Cumulative; Delay or Omission Not Waiver |
27 |
|
|
|
Section 6.6 |
Control by Securityholders |
28 |
|
|
|
Section 6.7 |
Undertaking to Pay Costs |
28 |
|
|
|
ARTICLE VII |
CONCERNING THE TRUSTEE |
29 |
|
|
|
Section 7.1 |
Certain Duties and Responsibilities of Trustee |
29 |
|
|
|
Section 7.2 |
Certain Rights of Trustee |
30 |
|
|
|
Section 7.3 |
Trustee Not Responsible for Recitals or Issuance or Securities |
31 |
|
|
|
Section 7.4 |
May Hold Securities |
31 |
Table
of Contents
(continued)
|
|
Page |
|
|
|
Section 7.5 |
Moneys Held in Trust |
32 |
|
|
|
Section 7.6 |
Compensation and Reimbursement |
32 |
|
|
|
Section 7.7 |
Reliance on Officers’ Certificate |
32 |
|
|
|
Section 7.8 |
Disqualification; Conflicting Interests |
33 |
|
|
|
Section 7.9 |
Corporate Trustee Required; Eligibility |
33 |
|
|
|
Section 7.10 |
Resignation and Removal; Appointment of Successor |
33 |
|
|
|
Section 7.11 |
Acceptance of Appointment By Successor |
34 |
|
|
|
Section 7.12 |
Merger, Conversion, Consolidation or Succession to Business |
36 |
|
|
|
Section 7.13 |
Preferential Collection of Claims Against the Company |
36 |
|
|
|
Section 7.14 |
Notice of Defaults |
36 |
|
|
|
ARTICLE VIII |
CONCERNING THE SECURITYHOLDERS |
36 |
|
|
|
Section 8.1 |
Evidence of Action by Securityholders |
36 |
|
|
|
Section 8.2 |
Proof of Execution by Securityholders |
37 |
|
|
|
Section 8.3 |
Who May be Deemed Owners |
37 |
|
|
|
Section 8.4 |
Certain Securities Owned by Company Disregarded |
38 |
|
|
|
Section 8.5 |
Actions Binding on Future Securityholders |
38 |
|
|
|
ARTICLE IX |
SUPPLEMENTAL INDENTURES |
38 |
|
|
|
Section 9.1 |
Supplemental Indentures Without the Consent of Securityholders |
38 |
|
|
|
Section 9.2 |
Supplemental Indentures With Consent of Securityholders |
40 |
|
|
|
Section 9.3 |
Effect of Supplemental Indentures |
40 |
|
|
|
Section 9.4 |
Securities Affected by Supplemental Indentures |
41 |
|
|
|
Section 9.5 |
Execution of Supplemental Indentures |
41 |
|
|
|
Section 9.6 |
Conformity with Trust Indenture Act |
41 |
|
|
|
ARTICLE X |
SUCCESSOR CORPORATION |
41 |
Table
of Contents
(continued)
|
|
Page |
|
|
|
Section 10.1 |
Company May Consolidate, Etc. |
41 |
|
|
|
Section 10.2 |
Successor Substituted |
42 |
|
|
|
Section 10.3 |
Evidence of Consolidation, Etc. to Trustee |
42 |
|
|
|
ARTICLE XI |
SATISFACTION AND DISCHARGE |
43 |
|
|
|
Section 11.1 |
Satisfaction and Discharge of Indenture |
43 |
|
|
|
Section 11.2 |
Discharge of Obligations |
43 |
|
|
|
Section 11.3 |
Deposited Moneys to be Held in Trust |
43 |
|
|
|
Section 11.4 |
Payment of Moneys Held by Paying Agents |
44 |
|
|
|
Section 11.5 |
Repayment to Company |
44 |
|
|
|
ARTICLE XII |
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
44 |
|
|
|
Section 12.1 |
No Recourse |
44 |
|
|
|
ARTICLE XIII |
MISCELLANEOUS PROVISIONS |
45 |
|
|
|
Section 13.1 |
Effect on Successors and Assigns |
45 |
|
|
|
Section 13.2 |
Actions by Successor |
45 |
|
|
|
Section 13.3 |
Notices |
45 |
|
|
|
Section 13.4 |
Notice to Holders of Securities; Waiver |
45 |
|
|
|
Section 13.5 |
Governing Law |
46 |
|
|
|
Section 13.6 |
Effect of Headings and Table of Contents |
46 |
|
|
|
Section 13.7 |
Compliance Certificates and Opinions |
46 |
|
|
|
Section 13.8 |
Payments on Business Days |
46 |
|
|
|
Section 13.9 |
Conflict with Trust Indenture Act |
47 |
|
|
|
Section 13.10 |
Counterparts |
47 |
|
|
|
Section 13.11 |
Separability |
47 |
|
|
|
Section 13.12 |
Assignment |
47 |
*This Table of Contents does not constitute part of the Indenture
and shall not have any bearing upon the interpretation of any of its terms or provisions.
INDENTURE, dated as of _______ ___, 201__, among
Protalix BioTherapeutics, Inc., a Florida corporation (the “Company”), and _______________, 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 unsecured 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 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
I
DEFINITIONS
Section 1.1 Definitions
of Terms.
The terms defined in this Section 1.1
(except as herein 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 1.1 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 therein defined in the Securities Act of 1933, as amended (except as herein 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.
“Affiliate” means, with respect
to a specified Person, (a) any Person directly or indirectly owning, controlling or holding with power to vote 10% or more
of the outstanding voting securities or other ownership interests of the specified Person, (b) any Person 10% or more of whose
outstanding voting securities or other ownership interests are directly or indirectly owned, controlled or held with power to vote
by the specified Person, (c) any Person directly or indirectly controlling, controlled by, or under common control with the
specified Person, (d) a partnership in which the specified Person is a general partner, (e) any officer or director of
the specified Person, and (f) if the specified Person is an individual, any entity of which the specified Person is an officer,
director or general partner.
“Authenticating Agent” means
an authenticating agent with respect to all or any of the series of Securities appointed with respect to all or any series of the
Securities 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 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.
“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 City of New
York or place of payment, are authorized or obligated by law, executive order or regulation to close.
“Certificate” means a certificate
signed by the principal executive officer, the principal financial officer, the Treasurer or the principal accounting officer of
the Company. The Certificate need not comply with the provisions of Section 13.7.
“Company” means Protalix
BioTherapeutics, Inc., a corporation, duly organized and existing under the laws of the State of Florida and, subject to the provisions
of Article Ten, shall also include its successors and assigns.
“Corporate Trust Office”
means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at ____________________.
“Custodian” means any receiver,
trustee, assignee, liquidator, or similar official under any Bankruptcy Law.
“Default” means any event,
act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Defaulted Interest” has
the meaning set forth in Section 2.3 hereof.
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, New York, New York, 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 2.1 or 2.11.
“Event of Default” means,
with respect to Securities of a particular series any event specified in Section 6.1, continued for the period of time,
if any, therein designated.
“Exchange Act” means the
Securities and Exchange Act of 1934, as amended.
“Global Security” means,
with respect to any series of Securities, a Security executed by the Company 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 (i) direct obligations of the United States of America for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America, 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, and shall also include
a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) 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.
“Guarantee” means any obligation,
contingent or otherwise, of any Person directly or indirectly guaranteeing any indebtedness of any other Person and any obligation,
direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such indebtedness or other obligation of such Person (whether arising by virtue of partnership arrangements, or
by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement
conditions or otherwise) or (b) entered into for the purpose of assuring in any other manner the obligee of such indebtedness
of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, however, that
the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The
term “Guarantee” used as a verb has a corresponding meaning.
“Guarantor” means any Person
Guaranteeing any obligation.
“Guaranty Agreement” means
a supplemental indenture, in a form satisfactory to the Trustee, pursuant to which a Person Guarantees the Company’s obligations
with respect to a series of Securities.
“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.
“Interest” when used with
respect to an Original Issue Discount Security which by its terms bears interest only after maturity, means interest payable after
maturity.
“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 the Chairman
of the Board, the Chief Executive Officer, the President, any Executive Vice President, any Vice President, the Treasurer, the
Secretary or an Assistant Secretary of the Company.
“Officers’ Certificate”
means a certificate signed by two Officers that is delivered to the Trustee in accordance with the terms hereof. Each such certificate
shall include the statements provided for in Section 13.7, if and to the extent required by the provisions thereof.
“Opinion of Counsel” means
an opinion in writing 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 13.7, if and
to the extent required by the provisions thereof.
“Original Issue Discount Security”
means any Security which (i) is issued at a price lower than the amount payable upon the maturity thereof and (ii) provides
for an amount less than the principal amount thereof to be due and payable upon redemption or a declaration of acceleration of
the maturity thereof pursuant to Section 6.1.
“Outstanding”, when used
with reference to Securities of any series, means, subject to the provisions of Section 8.4, 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 Three, 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 2.7.
“Person” means any individual,
corporation, limited liability company, partnership, joint-venture, joint-stock company, unincorporated organization or government
or any agency or political subdivision thereof.
“Predecessor Security” of
any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.7 in lieu of
a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Regular Record Date” has
the meaning set forth in Section 2.3 hereof.
“Responsible Officer” when
used with respect to the Trustee means any authorized officer within the Corporate Trust Department (or corresponding department
bearing a different name) of the Trustee, including the president, 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 Person who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of
his or her knowledge of and familiarity with the particular subject.
“Securities” means the debt
Securities authenticated and delivered under this Indenture.
“Security Register” has the
meaning set forth in Section 2.5(b) hereof.
“Security Registrar” has
the meaning set forth in Section 2.5(b) hereof.
“Securityholder”, “holder
of Securities”, “registered holder”, or other similar term, means the Person or Persons in whose name or names
a particular Security shall be registered on the books of the Company kept for that purpose in accordance with the terms of this
Indenture.
“Special Record Date” has
the meaning set forth in Section 2.3 hereof.
“Subsidiary” means, in respect
of any Person, any corporation, association, partnership, limited liability company, or other business entity of which more than
50% of the total voting power of shares of capital stock or other interests (including partnership interests) entitled (without
regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (a) such Person, (b) such Person and one or more Subsidiaries of such Person
or (c) one or more Subsidiaries of such Person.
“Subsidiary Guarantor” means
any Subsidiary of the Company that provides a Guarantee of the obligations of the Company with respect to any series of Securities
or enters into a Guaranty Agreement that becomes a Subsidiary Guarantor.
“Subsidiary Guarantee” means
a Guarantee, including any Guaranty Agreement, provided by a Subsidiary Guarantor of the Company’s obligations with respect
to any series of Securities.
“Trustee” means ________________,
and, subject to the provisions of Article Seven, 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, as in effect at the date of execution of this instrument, subject to the provisions
of Sections 9.1, 9.2 and 10.1.
“Yield to Maturity” means
the yield to maturity on a series of Securities, calculated at the time of issuance of such series, or, if applicable, at the most
recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.
ARTICLE
II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.1 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 Officers’
Certificate, or established in one or more indentures supplemental hereto:
(1) the
title of the Security of the series (which shall distinguish the Securities of the series from all other Securities);
(2) any
limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of that series);
(3) whether
any of the Securities of the series will be issuable in whole or in part in temporary or permanent global form or in the form of
book-entry securities and, in such case, the identity of the Depositary for such series;
(4) the
date or dates on which the principal of the Securities of the series is payable;
(5) the
rate or rates, which may be fixed or variable, 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 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
place or places where payments with respect to the Securities of the series shall be payable;
(8) the
right, if any, to defer or extend payment of interest on the debt securities and the maximum length of any deferral or extension
period;
(9) the
dates, if any, on which, the price or prices at which and the terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(10) the
obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund 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
date or dates, if any, on 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;
(11) if
other than denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the
Securities of the series shall be issuable;
(12)
whether the series of Securities will be subject to any mandatory or optional sinking fund or similar provisions;
(13)
the currency or currency units in which payment of the principal of and any premium and interest on the Securities of the
series shall be payable;
(14)
whether and under what circumstances the Company will pay additional amounts on the Securities of the series held by non-U.S.
persons in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Company will have
the option to redeem such Securities rather than pay such additional amounts;
(15)
the terms pursuant to which the Securities of the series are subject to defeasance and satisfaction and discharge;
(16)
any addition to, or modification or deletion of, any Events of Default or covenants provided for with respect to the Securities
of the series;
(17)
the terms and conditions, if any, pursuant to which the Securities of the series are secured;
(18)
whether the Securities of the series will be convertible into shares of common stock or any other securities of the Company
and, if so, the terms and conditions upon which such Securities will be so convertible, including whether conversion is mandatory,
at the option of the holder, or at the option of the Company, the conversion price, the conversion period and any provisions pursuant
to which the number of shares of common stock or other securities of the Company to be received by the holders of such series of
Securities would be subject to adjustment;
(19)
if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall
be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.1;
(20) any
provisions granting special rights to holders when a specified event occurs;
(21) any
special tax implications of the Securities of the series, including provisions for Original Issue Discount Securities, if offered;
(22) the
form of the Securities of the series, including the form of the Certificate of Authentication for such series; and
(23) any
and all other terms with respect to such series, 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.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in or pursuant to 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, 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 Officers’ Certificate
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. Unless otherwise provided, a series may be reopened for issuances of additional
Securities of such series.
Section 2.2 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 of the Company and as set forth in an Officers’
Certificate of the Company and 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 stock exchange on which Securities of that series may be listed, or to conform to usage.
Section 2.3 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 thereof, subject to
Section 2.1(a)(11). The Securities of a particular series shall bear interest payable on the Interest Payment Dates and
at the rate specified with respect to that series. Unless otherwise provided pursuant to Section 2.1, 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 in the United States, unless otherwise specified with respect
to any series of Securities, by the Corporate Trust Office of the Trustee. Each Security shall be dated the date of its authentication.
Unless otherwise provided pursuant to Section 2.1, 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
applicable Business Day that is the Regular Record Date for such interest installment. Unless otherwise provided in the terms of
a series of Securities, at the option of the Company, payment of interest may be mailed by check to the holders of the Securities
of any series at their respective addresses set forth in the Security Register (as herein defined) or wired if held in book-entry
form at The Depository Trust Company. 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 on or prior to such
Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security as provided in Section
3.3.
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 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 the applicable Business Day that is 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. The Trustee shall then 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. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first class postage prepaid, to each Securityholder at his
or her address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered
on such Special Record Date and shall be no longer payable pursuant to the following clause (2).
(2) The
Company may make 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 2.1 hereof,
the term “Regular Record Date”, as used in this Section 2.3, with respect to a series of Securities with
respect to 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 2.1 hereof shall occur, if such
Interest Payment Date is the first day of a month, or (ii) the last day of the month immediately preceding the month in which an
Interest Payment Date established for such series pursuant to Section 2.1 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 2.3, 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 2.4 Execution
and Authentication.
Two Officers shall sign the Securities for the
Company by manual or facsimile signature. If an Officer whose signature is on a Security no longer holds that office at the time
the Trustee authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized
signatory of the Trustee or an Authentication Agent manually signs the certificate of authentication on the Security. The signature
shall be conclusive evidence that the Security has been authenticated under 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 written order of the Company for the authentication and delivery of such Securities, signed
by two Officers, and the Trustee shall authenticate and deliver such Securities in accordance with such written order.
In authenticating such Securities and accepting
the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive,
and (subject to Section 7.1) shall be fully protected in relying upon, an Opinion of Counsel and an Officers’ Certificate
stating that the form and terms thereof have been established in conformity with the provisions of this Indenture.
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 2.5 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 in
the United States, or such other location designated by the Company, 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 2.5. 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 in the United States, or such other
location designated by the Company 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 provided in this Article and which at all reasonable times shall be open for inspection by the Trustee. Unless otherwise specified
in a supplemental indenture, the Trustee is hereby appointed as “Security Registrar” for the purpose of registering
the Securities and the transfer of Securities of each series.
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 2.5, 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) 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 2.6, Section 3.3(b) and Section 9.4 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 except the unredeemed portion of any Securities
of any series being redeemed in part. The provisions of this Section 2.5 are, with respect to any Global Security, subject
to Section 2.11 hereof.
Section 2.6 Temporary
Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall 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 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 2.7 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 the Company’s request 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 the written request or authorization of any Officer of the
Company. 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 matured or is about to mature 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 each of 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 2.7 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 2.8 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 request of the Company
at the time of such surrender, the Trustee shall deliver to the Company any canceled Securities held by the Trustee. In the absence
of such request, the Trustee may 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 2.9 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, with the written
consent of the Company, 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 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 2.1 that the Securities of a particular series are issuable as a Global
Security, then the Company shall execute and the Trustee shall, in accordance with Section 2.4, authenticate and deliver,
a Global Security that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount
of, such of the Outstanding Securities of such series as shall be specified therein and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to reflect exchanges, (ii) shall be registered
in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the Depositary or 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.” Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by
the Trustee in such manner and upon instructions given by such Person or Persons as shall be specified therein or in the written
request signed in the name of the Company, by two Officers thereof to be delivered to the Trustee pursuant to Section 2.4
or Section 2.6.
(b) Notwithstanding
the provisions of Section 2.5, the Global Security of a series may be transferred, in whole but not in part, and in the
manner provided in Section 2.5, 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, this Section 2.11
shall no longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.5,
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 2.5, the Trustee, upon receipt of an Officers’
Certificate 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. The Trustee shall deliver such Securities to the Depositary
for delivery to the Persons in whose names such Securities are so registered.
(d) If
an Event of Default has occurred and is continuing with respect to a particular series of the Securities, the Company may execute,
and the Trustee, upon receipt of an Officers’ Certificate directing the authorization and delivery thereof, shall 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.
Section 2.12 No
Obligation of the Trustee.
(a) The
Trustee shall have no responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant
in, the Depositary or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant
or member thereof, with respect to any ownership interest in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the
payment of any amount or delivery of any Securities (or other security or property) under or with respect to such Securities. All
notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Securities shall
be given or made only to or upon the order of the registered Holder or Holders (which shall be the Depositary or its nominee in
the case of a Global Security). The rights of beneficial owners in any Global Security shall be exercised only through the Depositary,
subject to the applicable rules and procedures of the Depositary. The Trustee may rely and shall be fully protected in relying
upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.
(b) The
Trustee shall have no obligations 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 the Depositary participants, members or beneficial owners in any Global Security) other than to require delivery
of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required
by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements
hereof.
ARTICLE
III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.1 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
2.1 hereof.
Section 3.2 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 the right reserved in such Securities so to do, the Company shall, or shall cause the Trustee to, give notice
of such redemption to holders of the Securities of such series to be redeemed by sending electronically or by mailing, first class
postage prepaid, a notice of such redemption not less than 30 days and not more than 60 days before the date fixed for
redemption of that series to such holders 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 sent 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 to duly 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 Officers’ Certificate evidencing
compliance with any such restriction.
Each such notice of redemption shall specify
the date fixed for redemption and the redemption price (or the manner of calculation thereof) 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 in the United States, 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 for 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 whole or 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 30 days’ notice
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 on a pro rata basis or in such other manner as it shall deem appropriate and fair in
its discretion. The portion of the principal amount of Securities so selected for partial redemption shall be equal to the minimum
authorized denomination for Securities of that series or any integral multiple thereof. Upon making its selection, the Trustee
shall promptly notify the Company in writing of the numbers of the Securities to be redeemed, in whole or in part.
Unless otherwise provided in the applicable
supplemental indenture, the Company shall not be required to issue, register the transfer of, or exchange any Securities of a series
that are subject to redemption during a period beginning at the opening of business 15 days before the day of mailing of a
notice of redemption of less than all of that series of Securities that may be selected for redemption and ending at the close
of business on the day of such mailing.
The Company may, if and whenever it shall so
elect, by delivery of instructions signed on its behalf by any 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 give notice of redemption in the manner set forth in this
Section 3.2, such notice to be in the name of the Company or its own name, as the Trustee or such paying agent may deem
advisable. In any case in which notice of redemption is to be given 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 this Section 3.2.
Section 3.3 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. 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. However, if the date fixed for redemption is subsequent to a Regular Record Date with respect
to any Interest Payment Date and on or prior to such 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 Regular Record Date pursuant to Section 2.3.
(b) Upon
presentation of any 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 3.4 Sinking
Fund.
The provisions of Sections 3.4, 3.5
and 3.6 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified
as contemplated by Section 2.1 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 3.5. 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 3.5 Satisfaction
of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding
Securities of a series (other than any Securities previously called for redemption) 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 3.6 Redemption
of Securities for Sinking Fund.
Not less than 45 days prior to each sinking
fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers’ 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 3.5 and the basis
for such credit and will, together with such Officers’ 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 3.2 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 3.2. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in the manner stated in Section 3.3.
ARTICLE
IV
CERTAIN COVENANTS
Section 4.1 Payment
of Principal, Premium and Interest.
The Company will duly and punctually pay or
cause to be paid the principal of and any premium 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.
Section 4.2 Maintenance
of Office or Agency.
So long as any series of the Securities remain
Outstanding, the Company agrees to maintain an office or agency in the United States with respect to each such series, where (i) Securities
of that series may be presented for payment, (ii) Securities of that series may be presented as hereinabove authorized for
registration of transfer and exchange and (iii) notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be given or served, such designation to continue with respect to such office or agency until
the Company shall, by written notice signed by an Officer 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, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices
and demands.
Section 4.3 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 4.3:
(1) that
it will hold all sums held by it as such agent for the payment of the principal of and any premium 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 any premium 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; and
(4) 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 shall on or before each due date
of the principal of and any premium 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 any premium 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 any
premium or interest on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal and any
premium 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 shall promptly notify the Trustee of this action or failure
so to act.
(c) Notwithstanding
anything in this Section 4.3 to the contrary, (i) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.5 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; upon such payment by any paying agent to the Trustee, such paying
agent shall be released from all further liability with respect to such money.
Section 4.4 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 4.5 Compliance
with Consolidation Provisions.
The Company will not, while any of the Securities
remain Outstanding, consolidate with, or merge into, or merge into itself, or sell or convey all or substantially all of its property
to any other company unless the provisions of Article Ten hereof are complied with.
Section 4.6 Statement
by Officers as to Default.
The Company will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers’ Certificate signed
by its principal executive officer, principal financial officer or principal accounting officer stating whether or not to the best
knowledge of the signer thereof, the Company is in default in the performance or observance of any of the terms, provisions and
conditions of this Indenture, and if the Company shall be in default, specifying all such defaults and the nature and status thereof
of which they may have knowledge.
ARTICLE
V
SECURITYHOLDERS’ LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 5.1 Company
to Furnish Names and Addresses of Securityholders to Trustee.
The Company will furnish or cause to be furnished
to the Trustee (a) semiannually on _____ ___ and _____ ___, 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 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
of Securities for which the Trustee shall be the Security Registrar.
Section 5.2 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 5.1 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 5.1 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. The Company, the Trustee, the Security Registrar and anyone else shall have the protection
of Section 312(c) of the Trust Indenture Act with respect to the sending of any material pursuant to a request made pursuant to
Section 312(b) of the Trust Indenture Act.
Section 5.3 Reports
by the Company.
(a) The
Company covenants and agrees to file with the Trustee (unless such reports have been filed on the Securities and Exchange Commission’s
Electronic Data Gathering, Analysis, and Retrieval system), within 15 days after the Company files the same with the Securities
and Exchange 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 Securities and Exchange Commission may from time to time by rules and regulations prescribe) that
the Company may be required to file with the Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act. If the Company is no longer required to file information, documents or reports pursuant to either of such sections
of the Exchange Act, the Company shall continue to provide the Trustee with reports containing substantially the same information
as would have been required to be filed with the Securities Exchange Commission had the Company continued to have been subject
to such reporting requirements. In such event, such reports shall be provided to the Trustee within 15 days after the dates
applicable to a registrant that is not an accelerated filer or a large accelerated filer on which the Company would have been required
to provide reports to the Securities and Exchange Commission had it continued to have been subject to such reporting requirements.
For the avoidance of doubt, the Company shall also comply with the other provisions of Section 314(a) of the Trust Indenture Act.
(b) The
Company covenants and agrees to file with the Trustee and the Securities and Exchange Commission, in accordance with the rules
and regulations prescribed from to time by the Securities and Exchange Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from
time to time by such rules and regulations.
(c) The
Company covenants and agrees to transmit electronically or by mail, first class postage prepaid, or reputable over-night delivery
service that provides for evidence of receipt, to the Securityholders, as their names and addresses appear upon the Security Register,
within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required
to be filed by the Company pursuant to subsections (a) and (b) of this Section 5.3 as may be required by rules
and regulations prescribed from time to time by the Securities and Exchange Commission.
Section 5.4 Reports
by the Trustee.
(a) On
or before _____ ___ in each year in which any of the Securities are Outstanding, the Trustee 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 the preceding _____ ___, if and to the extent required under Section 313(a) of the Trust Indenture Act, detailing certain events
that occurred within the previous 12 months.
(b) The
Trustee shall comply with Sections 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 stock exchange upon which any Securities are listed (if so listed) and also with the Securities and Exchange Commission.
The Company agrees to notify the Trustee when any Securities become listed on any stock exchange.
ARTICLE
VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.1 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 continuance of such default for a period of 30 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 any premium for this purpose;
(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 2.1 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 60 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 in writing 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) if
the Securities of the series are convertible into shares of common stock or other securities of the Company, failure by the Company
to deliver common stock or the other securities when the holder or holders of such Securities elect to convert such Securities
into shares of common stock or other securities of the Company;
(5) 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;
(6) 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, in each such case, the order or decree remains unstayed and in effect for 90 days; or
(7) any
other Event of Default provided with respect to Securities of that series.
(b) In
each and every such case (other than an Event of Default specified in clauses (5) or (6) 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 (or, if the Securities of such series are Original
Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of, premium, if
any, and accrued interest, if any, 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, notwithstanding anything contained in this Indenture or in the
Securities of that series or established with respect to that series pursuant to Section 2.1 to the contrary. If an Event
of Default specified in clauses (5) or (6) above occurs, all unpaid principal (or, if the Securities of such series are Original
Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of, premium, if
any, and accrued interest, if any, on, all the Securities of that series then outstanding will become automatically due and payable
immediately, without any declaration or other act on the part of the Trustee or any holder.
(c) At
any time after the principal of 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 or Yield to Maturity (in the case of Original Issue Discount Securities)
expressed in the Securities of that series (or at the respective rates of interest or Yields to Maturity of all the Securities,
as the case may be) to the date of such payment or deposit) and any amount payable to the Trustee under Section 7.6, and
(ii) any and all Events of Default under the Indenture with respect to such series, other than the non-payment of principal,
premium, if any, or interest on Securities of that series that (or, if any Securities are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms thereof) shall not have become due by their terms, shall have been remedied
or waived as provided in Section 6.6.
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, 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 6.2 Collection
of Indebtedness and Suits for Enforcement by Trustee.
(a) The
Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities
of a series, or any payment required by any sinking or analogous fund established with respect to that series as and when the same
shall have become due and payable, and such default shall have continued for a period of 30 days, or (ii) in case it
shall default in the payment of the principal of (or premium, if any, on) any of the Securities of a series when the same shall
have become due and payable, whether upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise,
then, upon demand of the Trustee, 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 reasonable
costs and expenses of collection, and the amount payable to the Trustee under Section 7.6.
(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 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, 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 this
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 7.6; 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 7.6.
(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 relating 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 7.6, 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 effective 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 6.3 Application
of Moneys Collected.
Any moneys 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 the payment if only partially paid) and upon surrender thereof
(if fully paid):
FIRST: To the payment of costs and expenses
of collection and of all amounts payable to the Trustee under Section 7.6; and
SECOND: To the payment of the amounts then due
and unpaid upon the Securities of such series for principal and any premium 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 any premium and interest, respectively.
Section 6.4 Limitation
on Suits.
No holder of a 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 reasonable indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred therein or thereby; and (iv) the Trustee for 60 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 60 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 any premium and (subject to Section 2.3) interest on such Security (whether upon redemption, repurchase, maturity
or otherwise) or payment or delivery of any amounts due upon conversion of Securities of any series that are convertible into shares
of common stock or other securities, as therein provided, on or after the respective due dates expressed in such Security (or in
the case of redemption or repurchase, on the redemption date or repurchase date, respectively), or to institute suit for the enforcement
of any such payment or delivery on or after such respective dates (including the redemption date or repurchase date, as applicable)
shall not be impaired or affected without the consent of such holder. 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,
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 6.4, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 6.5 Rights
and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except
as otherwise provided in Section 2.7, 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 on acquiescence therein; and, subject to the provisions of Section 6.4, 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 6.6 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 8.4, 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 be unduly prejudicial to the rights of holders of Securities
of such series not consenting; and provided, further, that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction. Prior to the taking of any action hereunder, the Trustee shall be entitled
to reasonable indemnification satisfactory to the Trustee against all losses and expenses caused by taking or not taking such action.
Subject to the provisions of Section 7.1, the Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of the Trustee, determine that the proceeding so directed would
involve the Trustee in personal liability. 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 8.4, may determine, and may have the Trustee
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 2.1 with respect to such series and its consequences, except for (a) a
default in the payment of the principal of or any premium or interest on, any of the Securities of that series (whether upon redemption,
repurchase, maturity or otherwise) or payment or delivery of any amounts due upon conversion of Securities of any series that are
convertible into shares of common stock or other securities 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 6.1(c)), or (b) if the
Securities of that series are convertible into shares of common stock or other securities, the failure by the Company to deliver
common stock or the other securities, as and when they shall become deliverable by the terms of such Securities. 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 6.7 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;
provided, however, that the provisions of this Section 6.7 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
VII
CONCERNING THE TRUSTEE
Section 7.1 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:
(i) 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
(ii) in
the absence of bad faith 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; however, 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;
(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
(determined as provided in Section 8.4) 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
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 7.2 Certain
Rights of Trustee.
Except as otherwise provided in Section 7.1:
(a) The
Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any document (whether in its
original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document. The Trustee shall receive and retain financial reports and statements
of the Company as provided herein, but shall have no duty to review or analyze such reports or statements to determine compliance
under covenants or other obligations of the Company.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’ Certificate and an Opinion of Counsel, which shall
conform to the provisions of Section 13.7. The Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion.
(c) The
Trustee may act through its attorneys and agents, and shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The
Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
(e) The
permissive rights of the Trustee to take actions enumerated in this Indenture shall not be construed as duties.
(f) Except
with respect to Section 4.1, the Trustee shall have no duty to inquire as to the performance of the Company with respect
to the covenants contained in Article Four. In addition, the Trustee shall not be deemed to have knowledge of an Event of Default,
except (i) any Default or Event of Default occurring pursuant to Section 6.1(a)(2) or (ii) any Default or Event
of Default of which a Responsible Officer of the Trustee shall have received written notification from the Company or any Holder
of such Default or Event of Default at the Corporate Trust Office, and such notice references the applicable series of Securities
and this Indenture.
(g) The
rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended
to, and shall be enforceable by, the Trustee in each of its capacities (including as Paying Agent) hereunder, and to each agent,
custodian and other Person employed to act hereunder.
(h) Delivery
of reports, information and documents to the Trustee under Section 5.3 is for informational purposes only; 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 its covenants hereunder (as to which the Trustee is entitled
to rely exclusively on an Officers’ Certificate).
(i) The
Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles
of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may
be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
(j) Anything
in this Indenture notwithstanding, in no event shall the Trustee be liable for special, indirect, punitive or consequential loss
or damage of any kind whatsoever (including but not limited to loss of profit), even if the Trustee has been advised as to the
likelihood of such loss or damage and regardless of the form of action.
(k) The
Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture
arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation,
(i) acts of God, including earthquakes, fire and flood; (ii) terrorism, wars and other military disturbances; (iii) sabotage, epidemics
and riots; (iv) interruptions, loss or malfunctions of utilities, computer (hardware or software) or communication services; (v)
accidents and labor disputes; and (vi) acts of civil or military authorities and governmental actions.
Section 7.3 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 2.1, or for the use or application of any moneys received by any paying agent other than
the Trustee.
Section 7.4 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 7.5 Moneys
Held in Trust.
Subject to the provisions of Section 11.5,
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 of the Trustee 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 with the Company to
pay thereon.
Section 7.6 Compensation
and Reimbursement.
(a) The
Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such reasonable 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. Except as otherwise expressly provided
herein, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not regularly in its employ). Except any such expense, disbursement
or advance as may arise from its negligence or bad faith. The Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any loss, liability or expense incurred without negligence
or bad faith on the part of the Trustee and arising out of or in connection with the acceptance or administration of the trusts
hereby created, including the reasonable costs and expenses of defending itself against any claim of liability in the premises.
(b) The
obligations of the Company under this Section 7.6 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. The provisions of this Section 7.6 shall
survive the resignation or removal of the Trustee and the termination of this Indenture.
(c) When
the Trustee incurs expenses or renders services after a Default specified in Section 6.1(a)(5) and (6) occurs, such
expenses (including the charges and expenses of its counsel) and the compensation for such services shall be paid to the extent
allowed under any Bankruptcy Law and are intended to constitute expenses of administration under any Bankruptcy Law.
Section 7.7 Reliance
on Officers’ Certificate.
Except as otherwise provided in Section 7.1,
whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee,
be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee and such certificate,
in the absence of negligence or bad faith 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 7.8 Disqualification;
Conflicting Interests.
If the Trustee has or shall acquire any “conflicting
interest” within the meaning 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 7.9 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 Securities and Exchange Commission, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 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 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
7.9, the combined capital and surplus of such corporation 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 7.9, 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 electronically or by mail, first class postage
prepaid, 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 the Securities of such series
by or pursuant to a Board Resolution. If no successor trustee shall have been so appointed and have accepted such 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 such 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:
(1) the
Trustee shall fail to comply with the provisions of Section 7.8 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
(2) the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.9 and shall fail to resign after written
request therefor by the Company or by any such Securityholder; or
(3) 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 or pursuant to
a Board Resolution, or, unless the Trustee’s duty to resign is stayed as provided herein, 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 written 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 7.10 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 7.10 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; however, upon
the request of the Company or the successor trustee, such retiring Trustee shall, upon payment of its charges, 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 (1) shall
contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor trustee relates, (2) shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall
add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supple- mental 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. 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; however, upon 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 7.11, 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 7.11, 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, shall be the
successor of the Trustee hereunder, provided that such corporation shall be qualified under the provisions of Section 7.8
and eligible under the provisions of Section 7.9, 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 Defaults.
If a Default occurs and is continuing hereunder
with respect to Securities of any series and if it is actually known to a Responsible Officer of the Trustee, the Trustee shall
send to each holder of such Securities notice of the Default within 90 days after such Default occurs provided, however,
that in the case of any Default of the character specified in Section 6.1(a)(3) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the occurrence thereof. Except in the case of a default in
payment of principal of or interest on any Security (whether upon redemption, repurchase, maturity or otherwise) (including payments
pursuant to the redemption or repurchase provisions of such Security, if any) or payment or delivery of any amounts due upon conversion
of Securities of any series that are convertible into shares of common stock or other securities, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the
interests of the holders of such Securities.
ARTICLE
VIII
CONCERNING THE SECURITYHOLDERS
Section 8.1 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 Officers’ Certificate, fix in advance a record date (in accordance with Section 316(c) of the Trust Indenture
Act) 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
purpose 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 8.2 Proof
of Execution by Securityholders.
Subject to the provisions of Section 7.1,
proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his or her 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 Company.
(b) The
ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar
thereof.
(c) The
Trustee or the Company may require such additional proof of any matter referred to in this Section 8.2 as it shall deem
necessary.
Section 8.3 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 Company 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 2.3) interest on such Security and for all other purposes. Neither the Company nor the Trustee nor any paying agent
nor any Security Registrar shall be affected by any notice to the contrary.
Section 8.4 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 or consent (or waiver, as the case
may be) 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 direct or indirect 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 or consent (or waiver, as the case may be), only Securities of such series that 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 8.4, 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 8.5 Actions
Binding on Future Securityholders.
At any time prior to (but not after) the evidencing
to the Trustee, as provided in Section 8.1, 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 8.2,
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
IX
SUPPLEMENTAL INDENTURES
Section 9.1 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, for one or more of the following purposes:
(a) to
cure any ambiguity, omission, defect or inconsistency herein or in the Securities of any series;
(b) to
comply with Article Ten;
(c) to
provide for Securities in bearer form, or uncertificated Securities in addition to or in place of certificated Securities;
(d) to
add Guarantees, including Subsidiary Guarantees, with respect to debt securities or to release Subsidiary Guarantors from Subsidiary
Guarantees in accordance with the terms of the applicable series of Securities or to secure a series of Securities;
(e) to
add to the covenants of the Company for the benefit of the holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred upon the Company;
(f) 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;
(g) to
make any change that does not adversely affect the rights of any Securityholder in any material respect, provided that any
amendment to conform the terms of any Securities to its description contained in the final offering document shall not be deemed
to be adverse to any Securityholder;
(h) to
provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section
2.1, to establish the form of any certifications required to be furnished under the terms of this Indenture or any series of
Securities, or to add to the rights of the holders of any series of Securities;
(i) to
comply with any requirements of the Securities and Exchange Commission in connection with registration of the Securities under
the Securities Act of 1933 qualifying, or maintaining the qualification of, this Indenture under the Trust Indenture Act or to
comply with the Trust Indenture Act; or
(j) to
secure any series of Security.
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 9.1 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 9.2.
Section 9.2 Supplemental
Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Section
8.1) 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 Board Resolutions, 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
9.1 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 affected thereby, (i) change
the maturity date 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; (ii) reduce the amount of principal
of an Original Issue Discount Security or any other Security payable upon acceleration of maturity; (iii) change the currency
in which any Security or any premium or interest is payable; (iv) impair the right to receive payment of principal of and
interest on any Security (whether upon redemption, repurchase, maturity, or otherwise) or payment or delivery of any amounts due
upon conversion of Securities of any series that are convertible into shares of common stock or other securities on or after the
due dates or to institute suit for the enforcement of any payment on or with respect to any Security; (v) adversely change
the right to convert or exchange, including decreasing the conversion rate or increasing the conversion price of, that Security
(if applicable); (vi) if the Securities are secured, change the terms and conditions pursuant to which the Securities are
secured in a manner adverse to the holders of the Securities; (vii) reduce the percentage in principal amount of outstanding Securities
of any series, the consent of whose holders is required for modification or amendment of this Indenture or for waiver of compliance
with any provision of this Indenture; (viii) reduce the requirements contained in this Indenture for a quorum
for a meeting or for voting; (ix) change any obligations of the Company to maintain an office or agency in the places and
for the purposes required by this Indenture; or (x) modify any of the above provisions.
It shall not be necessary for the consent of
the Securityholders of any series affected thereby under this Section 9.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.3 Effect
of Supplemental Indentures.
Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.1, this Indenture shall, with respect to such series, 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.
Section 9.4 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 10.1, may bear a notation in form approved by the Company, provided such form meets the requirements of any
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 Trustee and the Company, to any modification
of this Indenture contained in any such supplemental indenture may be prepared and executed by the Company, authenticated by the
Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section 9.5 Execution
of Supplemental Indentures.
Upon the request of the Company, accompanied
by the 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 without any obligation to
do so) enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.1, shall be provided
an Opinion of Counsel and an Officers’ Certificate as conclusive evidence that any supplemental indenture executed pursuant
to this Article is authorized or permitted by, and conforms to, the terms of this Article and that it is proper for the Trustee
under the provisions of this Article to join in the execution thereof; provided, however, that such Opinion of Counsel
need not be provided in connection with the execution of a supplemental indenture that establishes the terms of a series of Securities
pursuant to Section 2.1 hereof, unless otherwise requested by the Trustee.
Section 9.6 Conformity
with Trust Indenture Act.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the Trust Indenture Act of 1939, as amended, in effect on such date.
ARTICLE
X
SUCCESSOR CORPORATION
Section 10.1 Company
May Consolidate, Etc.
Unless otherwise specified in a supplemental
indenture hereto, nothing contained in this Indenture or in any of the Securities 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 Person (whether or not affiliated with the Company or its successor or successors) authorized to acquire and operate
the same. The Company hereby covenants and agrees that, upon any such consolidation or merger (in each case, if the Company is
not the surviving corporation of such transaction), sale, conveyance, transfer or other disposition, the due and punctual payment
of the principal of and any premium 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 2.1 to be kept or performed by
the Company shall be expressly assumed, by supplemental indenture (which shall conform to the requirements of the Trust Indenture
Act as then in effect) satisfactory in form to the Trustee 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.
Section 10.2 Successor
Substituted.
(a) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor
Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and any premium and interest on all of the Securities of all series Outstanding and the due
and punctual performance of all of the covenants and conditions of this Indenture or established with respect to each series of
the Securities pursuant to Section 2.1 to be performed by the Company with respect to each series, such successor Person
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 Person 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 Indenture or in any of the Securities shall prevent the Company from merging into itself or acquiring by purchase
or otherwise all or any part of the property of any other Person (whether or not affiliated with the Company).
Section 10.3 Evidence
of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section
7.1, shall be provided an Opinion of Counsel and an Officers’ Certificate as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or other disposition, and any such assumption, comply with the provisions of this Article.
ARTICLE
XI
SATISFACTION AND DISCHARGE
Section 11.1 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 (other than any Securities that
shall have been destroyed, lost or stolen and that shall have been replaced or paid as provided in Section 2.7 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 11.5); or (b) all
such Securities of a particular series not theretofore delivered to the Trustee for cancellation shall have become due and payable,
or, except in the case of any Securities that are convertible or exchangeable, 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 an amount of money in U.S.
dollars sufficient, or non-callable Governmental Obligations, the principal of and interest on which when due, will be sufficient
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 any premium 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 2.3, 2.5, 2.7, 4.1, 4.2, 4.3 and 7.10,
that shall survive until the date of maturity or redemption date, as the case may be, and Sections 7.6 and 11.5, 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 proper instruments acknowledging satisfaction of and discharging this Indenture with respect to such series.
Section 11.2 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
11.1 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds money in U.S. dollars sufficient
or an amount of non-callable Governmental Obligations, the principal of and interest on which when due, will be sufficient 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 such Securities of that series
not theretofore delivered to the Trustee for cancellation, including principal and any premium 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 2.3, 2.5, 2.7, 4.1, 4.2, 4.3, 7.6, 7.10 and 11.5
hereof that shall survive until such Securities shall mature and be paid. Thereafter, Sections 7.6 and 11.5 shall survive.
Section 11.3 Deposited
Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited
with the Trustee pursuant to Sections 11.1 or 11.2 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 11.4 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 11.5 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 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 any premium or interest on such Securities shall have respectively become
due and payable, shall be repaid to the Company or (if then held by the Company) shall be discharged from such trust. The paying
agent and the Trustee thereupon 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 an unsecured general creditor, look
only to the Company for the payment thereof.
ARTICLE
XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 12.1 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. 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
XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Effect
on Successors and Assigns.
All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the Company shall bind its successors and assigns, whether so expressed
or not.
Section 13.2 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 Person that shall at the time
be the lawful sole successor of the Company.
Section 13.3 Notices.
Except as otherwise expressly provided herein,
any notice or demand that by any provision of this Indenture is required or permitted to be given or served by the Trustee or by
the holders of Securities to or on the Company may be given or served by being deposited first class postage prepaid in a post-office
letterbox addressed (until another address is filed in writing by the Company with the Trustee), as follows: Protalix BioTherapeutics,
Inc., 2 Snunit Street, Science Park, P.O. Box 455, Carmiel, Israel 20100, Attention: _________________. Any notice, election, request
or demand by the Company or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made in writing at the Corporate Trust Office of the Trustee.
Section 13.4 Notice
to Holders of Securities; Waiver.
Except as otherwise expressly provided herein,
where this Indenture provides for notice to holders of Securities of any event, such notice shall be sufficiently given to holders
of Securities if in writing and mailed, first-class postage prepaid, to each holder of a Security affected by such event, at the
address of such holder as it appears in the Security Register, not earlier than the earliest date, and not later than the latest
date, prescribed for the giving of such notice.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give such notice to holders of Securities by mail, then
such notification as shall be made with the approval of the Trustee shall constitute sufficient notice to such holder for every
purpose hereunder. In any case where notice to holders of Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice mailed to any particular holder of a Security shall affect the sufficiency of such notice with respect
to other holders of Securities given as provided herein.
Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the applicable
event, and such waiver shall be the equivalent of such notice. Waivers of notice by holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 13.5 Governing
Law.
This Indenture and each Security shall be deemed
to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance with
the laws of said State.
Section 13.6 Effect
of Headings and Table of Contents.
The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 13.7 Compliance
Certificates and Opinions.
(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 Officers’ Certificate stating that all conditions precedent provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent have been complied with. However, in the case of any such application or demand as to which the furnishing
of such documents is specifically required by any provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
(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 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. Each opinion delivered to the Trustee hereunder may rely on the facts
stated in an Officers’ Certificate delivered therewith.
Section 13.8 Payments
on Business Days.
Except as provided pursuant to Section 2.1
pursuant to a Board Resolution, and as set forth in an Officers’ Certificate, or established in one or more indentures supplemental
to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of redemption or
repurchase of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) (whether upon
repurchase, redemption, maturity, or otherwise) may be made on the next succeeding Business Day with the same force and effect
as if made on the nominal date of maturity, redemption, or repurchase, and no additional interest shall accrue for the period after
such nominal date.
Section 13.9 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.
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 Assignment.
The Company will have the right at all times
to assign any of its rights or obligations under this Indenture to a direct or indirect wholly-owned Subsidiary of the Company,
provided that, in the event of any such assignment, the Company, will remain liable for all such obligations. Subject to
the foregoing, the Indenture is binding upon and inures to the benefit of the parties thereto and their respective successors and
assigns. This Indenture may not otherwise be assigned by the parties thereto.
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed all as of the day and year first above written.
|
PROTALIX BIOTHERAPEUTICS, INC. |
|
|
|
By |
|
|
|
Name: |
|
|
Title: |
|
|
|
___________________________________, |
|
|
as Trustee |
|
|
|
By |
|
|
|
Name: |
|
|
Title: |
Exhibit 4.4
Protalix BioTherapeutics, Inc.,
Issuer
AND
____________________,
Trustee
____________________
INDENTURE
Dated as of _____ ___, 201_
____________________
TABLE
OF CONTENTS*
CROSS-REFERENCE TABLE*
Section
of Trust Indenture Act of 1939, as amended |
|
Section
of
Indenture |
310(a) |
|
7.9 |
310(b) |
|
7.8 |
310(c) |
|
Inapplicable |
311(a) |
|
7.13 |
311(b) |
|
7.13 |
311(c) |
|
Inapplicable |
312(a) |
|
5.01, 5.02(a) |
312(b) |
|
5.2(c) |
312(c) |
|
5.2(c) |
313(a) |
|
5.4(a) |
313(b) |
|
5.4(b) |
313(c) |
|
5.4(b) |
313(d) |
|
5.4(c) |
314(a) |
|
5.3(a) |
314(b) |
|
Inapplicable |
314(c) |
|
13.7(a) |
314(d) |
|
Inapplicable |
314(e) |
|
13.7(b) |
314(f) |
|
Inapplicable |
315(a) |
|
7.1(b) |
315(b) |
|
7.14 |
315(c) |
|
7.1(a) |
315(d) |
|
7.1(b) |
315(e) |
|
6.7 |
316(a) |
|
6.6, 8.4 |
316(b) |
|
6.4 |
316(c) |
|
8.1 |
317(a) |
|
6.2 |
317(b) |
|
4.3 |
318(a) |
|
13.9 |
318(c) |
|
13.9 |
*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.
Table
of Contents
(continued)
|
|
Page |
|
|
|
ARTICLE I |
DEFINITIONS |
1 |
|
|
|
Section 1.1 |
Definitions of Terms |
1 |
|
|
|
ARTICLE II |
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
6 |
|
|
|
Section 2.1 |
Designation and Terms of Securities |
6 |
|
|
|
Section 2.2 |
Form of Securities and Trustee’s Certificate |
8 |
|
|
|
Section 2.3 |
Denominations; Provisions for Payment |
8 |
|
|
|
Section 2.4 |
Execution and Authentication |
10 |
|
|
|
Section 2.5 |
Registration of Transfer and Exchange |
11 |
|
|
|
Section 2.6 |
Temporary Securities |
12 |
|
|
|
Section 2.7 |
Mutilated, Destroyed, Lost or Stolen Securities |
12 |
|
|
|
Section 2.8 |
Cancellation |
13 |
|
|
|
Section 2.9 |
Benefits of Indenture |
13 |
|
|
|
Section 2.10 |
Authenticating Agent |
13 |
|
|
|
Section 2.11 |
Global Securities |
14 |
|
|
|
Section 2.12 |
No Obligation of the Trustee |
15 |
|
|
|
ARTICLE III |
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
16 |
|
|
|
Section 3.1 |
Redemption |
16 |
|
|
|
Section 3.2 |
Notice of Redemption |
16 |
|
|
|
Section 3.3 |
Payment Upon Redemption |
17 |
|
|
|
Section 3.4 |
Sinking Fund |
18 |
|
|
|
Section 3.5 |
Satisfaction of Sinking Fund Payments with Securities |
18 |
|
|
|
Section 3.6 |
Redemption of Securities for Sinking Fund |
18 |
|
|
|
ARTICLE IV |
CERTAIN COVENANTS |
19 |
|
|
|
Section 4.1 |
Payment of Principal, Premium and Interest |
19 |
|
|
|
Section 4.2 |
Maintenance of Office or Agency |
19 |
Table
of Contents
(continued)
|
|
Page |
|
|
|
Section 4.3 |
Paying Agents |
19 |
|
|
|
Section 4.4 |
Appointment to Fill Vacancy in Office of Trustee |
20 |
|
|
|
Section 4.5 |
Compliance with Consolidation Provisions |
20 |
|
|
|
Section 4.6 |
Statement by Officers as to Default |
20 |
|
|
|
ARTICLE V |
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
21 |
|
|
|
Section 5.1 |
Company to Furnish Trustee Names and Addresses of Securityholders |
21 |
|
|
|
Section 5.2 |
Preservation of Information; Communications with Securityholders |
21 |
|
|
|
Section 5.3 |
Reports by the Company |
21 |
|
|
|
Section 5.4 |
Reports by the Trustee |
22 |
|
|
|
ARTICLE VI |
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
22 |
|
|
|
Section 6.1 |
Events of Default |
22 |
|
|
|
Section 6.2 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
25 |
|
|
|
Section 6.3 |
Application of Moneys Collected |
26 |
|
|
|
Section 6.4 |
Limitation on Suits |
26 |
|
|
|
Section 6.5 |
Rights and Remedies Cumulative; Delay or Omission Not Waiver |
27 |
|
|
|
Section 6.6 |
Control by Securityholders |
28 |
|
|
|
Section 6.7 |
Undertaking to Pay Costs |
28 |
|
|
|
ARTICLE VII |
CONCERNING THE TRUSTEE |
29 |
|
|
|
Section 7.1 |
Certain Duties and Responsibilities of Trustee |
29 |
|
|
|
Section 7.2 |
Certain Rights of Trustee |
30 |
|
|
|
Section 7.3 |
Trustee Not Responsible for Recitals or Issuance or Securities |
31 |
|
|
|
Section 7.4 |
May Hold Securities |
32 |
Table
of Contents
(continued)
|
|
Page |
|
|
|
Section 7.5 |
Moneys Held in Trust |
32 |
|
|
|
Section 7.6 |
Compensation and Reimbursement |
32 |
|
|
|
Section 7.7 |
Reliance on Officers’ Certificate |
33 |
|
|
|
Section 7.8 |
Disqualification; Conflicting Interests |
33 |
|
|
|
Section 7.9 |
Corporate Trustee Required; Eligibility |
33 |
|
|
|
Section 7.10 |
Resignation and Removal; Appointment of Successor |
33 |
|
|
|
Section 7.11 |
Acceptance of Appointment By Successor |
34 |
|
|
|
Section 7.12 |
Merger, Conversion, Consolidation or Succession to Business |
36 |
|
|
|
Section 7.13 |
Preferential Collection of Claims Against the Company |
36 |
|
|
|
Section 7.14 |
Notice of Defaults |
36 |
|
|
|
ARTICLE VIII |
CONCERNING THE SECURITYHOLDERS |
37 |
|
|
|
Section 8.1 |
Evidence of Action by Securityholders |
37 |
|
|
|
Section 8.2 |
Proof of Execution by Securityholders |
37 |
|
|
|
Section 8.3 |
Who May be Deemed Owners |
38 |
|
|
|
Section 8.4 |
Certain Securities Owned by Company Disregarded |
38 |
|
|
|
Section 8.5 |
Actions Binding on Future Securityholders |
38 |
|
|
|
ARTICLE IX |
SUPPLEMENTAL INDENTURES |
39 |
|
|
|
Section 9.1 |
Supplemental Indentures Without the Consent of Securityholders |
39 |
|
|
|
Section 9.2 |
Supplemental Indentures With Consent of Securityholders |
40 |
|
|
|
Section 9.3 |
Effect of Supplemental Indentures |
41 |
|
|
|
Section 9.4 |
Securities Affected by Supplemental Indentures |
41 |
|
|
|
Section 9.5 |
Execution of Supplemental Indentures |
41 |
|
|
|
Section 9.6 |
Conformity with Trust Indenture Act |
41 |
|
|
|
ARTICLE X |
SUCCESSOR CORPORATION |
42 |
Table
of Contents
(continued)
|
|
Page |
|
|
|
Section 10.1 |
Company May Consolidate, Etc. |
42 |
|
|
|
Section 10.2 |
Successor Substituted |
42 |
|
|
|
Section 10.3 |
Evidence of Consolidation, Etc. to Trustee |
43 |
|
|
|
ARTICLE XI |
SATISFACTION AND DISCHARGE |
43 |
|
|
|
Section 11.1 |
Satisfaction and Discharge of Indenture |
43 |
|
|
|
Section 11.2 |
Discharge of Obligations |
43 |
|
|
|
Section 11.3 |
Deposited Moneys to be Held in Trust |
44 |
|
|
|
Section 11.4 |
Payment of Moneys Held by Paying Agents |
44 |
|
|
|
Section 11.5 |
Repayment to Company |
44 |
|
|
|
ARTICLE XII |
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
44 |
|
|
|
Section 12.1 |
No Recourse |
44 |
|
|
|
ARTICLE XIII |
MISCELLANEOUS PROVISIONS |
45 |
|
|
|
Section 13.1 |
Effect on Successors and Assigns |
45 |
|
|
|
Section 13.2 |
Actions by Successor |
45 |
|
|
|
Section 13.3 |
Notices |
45 |
|
|
|
Section 13.4 |
Notice to Holders of Securities; Waiver |
45 |
|
|
|
Section 13.5 |
Governing Law |
46 |
|
|
|
Section 13.6 |
Effect of Headings and Table of Contents |
46 |
|
|
|
Section 13.7 |
Compliance Certificates and Opinions |
46 |
|
|
|
Section 13.8 |
Payments on Business Days |
47 |
|
|
|
Section 13.9 |
Conflict with Trust Indenture Act |
47 |
|
|
|
Section 13.10 |
Counterparts |
47 |
|
|
|
Section 13.11 |
Separability |
47 |
Table
of Contents
(continued)
|
|
Page |
|
|
|
Section 13.12 |
Assignment |
47 |
|
|
|
ARTICLE XIV |
SUBORDINATION OF SECURITIES |
48 |
|
|
|
Section 14.1 |
Subordination Terms |
48 |
*This Table of Contents does not constitute part of the Indenture
and shall not have any bearing upon the interpretation of any of its terms or provisions.
INDENTURE, dated as of _______ ___, 201_,
among Protalix BioTherapeutics, Inc., a Florida corporation (the “Company”), and _______________, 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 unsecured 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 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
I
DEFINITIONS
Section 1.1 Definitions
of Terms.
The terms defined in this Section 1.1
(except as herein 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 1.1 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 therein defined in the Securities Act of 1933, as amended (except as herein 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.
“Affiliate” means, with
respect to a specified Person, (a) any Person directly or indirectly owning, controlling or holding with power to vote 10%
or more of the outstanding voting securities or other ownership interests of the specified Person, (b) any Person 10% or more
of whose outstanding voting securities or other ownership interests are directly or indirectly owned, controlled or held with power
to vote by the specified Person, (c) any Person directly or indirectly controlling, controlled by, or under common control
with the specified Person, (d) a partnership in which the specified Person is a general partner, (e) any officer or director
of the specified Person, and (f) if the specified Person is an individual, any entity of which the specified Person is an
officer, director or general partner.
“Authenticating Agent”
means an authenticating agent with respect to all or any of the series of Securities appointed with respect to all or any series
of the Securities 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 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.
“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 City of
New York or place of payment, are authorized or obligated by law, executive order or regulation to close.
“Certificate” means a
certificate signed by the principal executive officer, the principal financial officer, the Treasurer or the principal accounting
officer of the Company. The Certificate need not comply with the provisions of Section 13.7.
“Company” means Protalix
BioTherapeutics, Inc., a corporation duly organized and existing under the laws of the State of Florida, and, subject to the provisions
of Article Ten, shall also include its successors and assigns.
“Corporate Trust Office”
means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at ____________________.
“Custodian” means any
receiver, trustee, assignee, liquidator, or similar official under any Bankruptcy Law.
“Default” means any event,
act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Defaulted Interest”
has the meaning set forth in Section 2.3 hereof.
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, New York, New York, 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 2.1 or 2.11.
“Event of Default” means,
with respect to Securities of a particular series any event specified in Section 6.1, continued for the period of time,
if any, therein designated.
“Exchange Act” means
the Securities and Exchange Act of 1934, as amended.
“Global Security” means,
with respect to any series of Securities, a Security executed by the Company 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 (i) direct obligations of the United States of America for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America, 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, and shall also include
a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) 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.
“Guarantee” means any
obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any indebtedness of any other Person and
any obligation, direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such indebtedness or other obligation of such Person (whether arising by virtue of partnership
arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial
statement conditions or otherwise) or (b) entered into for the purpose of assuring in any other manner the obligee of such
indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided,
however, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course
of business. The term “Guarantee” used as a verb has a corresponding meaning.
“Guarantor” means any
Person Guaranteeing any obligation.
“Guaranty Agreement”
means a supplemental indenture, in a form satisfactory to the Trustee, pursuant to which a Person Guarantees the Company’s
obligations with respect to a series of Securities.
“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.
“Interest” when used
with respect to an Original Issue Discount Security which by its terms bears interest only after maturity, means interest payable
after maturity.
“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 the Chairman
of the Board, the Chief Executive Officer, the President, any Executive Vice President, any Vice President, the Treasurer, the
Secretary or an Assistant Secretary of the Company.
“Officers’ Certificate”
means a certificate signed by two Officers that is delivered to the Trustee in accordance with the terms hereof. Each such certificate
shall include the statements provided for in Section 13.7, if and to the extent required by the provisions thereof.
“Opinion of Counsel”
means an opinion in writing 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 13.7, if and
to the extent required by the provisions thereof.
“Original Issue Discount Security”
means any Security which (i) is issued at a price lower than the amount payable upon the maturity thereof and (ii) provides
for an amount less than the principal amount thereof to be due and payable upon redemption or a declaration of acceleration of
the maturity thereof pursuant to Section 6.1.
“Outstanding”, when used
with reference to Securities of any series, means, subject to the provisions of Section 8.4, 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 Three, 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 2.7.
“Person” means any individual,
corporation, limited liability company, partnership, joint-venture, joint-stock company, unincorporated organization or government
or any agency or political subdivision thereof.
“Predecessor Security”
of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.7
in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Regular Record Date”
has the meaning set forth in Section 2.3 hereof.
“Responsible Officer”
when used with respect to the Trustee means any authorized officer within the Corporate Trust Department (or corresponding department
bearing a different name) of the Trustee, including the president, 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 Person who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of
his or her knowledge of and familiarity with the particular subject.
“Securities” means the
debt Securities authenticated and delivered under this Indenture.
“Security Register” has
the meaning set forth in Section 2.5(b) hereof.
“Security Registrar”
has the meaning set forth in Section 2.5(b) hereof.
“Securityholder”, “holder
of Securities”, “registered holder”, or other similar term, means the Person or Persons in whose name or names
a particular Security shall be registered on the books of the Company kept for that purpose in accordance with the terms of this
Indenture.
“Special Record Date”
has the meaning set forth in Section 2.3 hereof.
“Subsidiary” means, in
respect of any Person, any corporation, association, partnership, limited liability company, or other business entity of which
more than 50% of the total voting power of shares of capital stock or other interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at
the time owned or controlled, directly or indirectly, by (a) such Person, (b) such Person and one or more Subsidiaries of
such Person or (c) one or more Subsidiaries of such Person.
“Subsidiary Guarantor”
means any Subsidiary of the Company that provides a Guarantee of the obligations of the Company with respect to any series of Securities
or enters into a Guaranty Agreement that becomes a Subsidiary Guarantor.
“Subsidiary Guarantee”
means a Guarantee, including any Guaranty Agreement, provided by a Subsidiary Guarantor of the Company’s obligations with
respect to any series of Securities.
“Trustee” means _____________________,
and, subject to the provisions of Article Seven, 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, as in effect at the date of execution of this instrument, subject to the provisions
of Sections 9.1, 9.2 and 10.1.
“Yield to Maturity” means
the yield to maturity on a series of Securities, calculated at the time of issuance of such series, or, if applicable, at the most
recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.
ARTICLE
II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.1 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 Officers’
Certificate, or established in one or more indentures supplemental hereto:
(1) the
title of the Security of the series (which shall distinguish the Securities of the series from all other Securities);
(2) any
limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of that series);
(3) whether
any of the Securities of the series will be issuable in whole or in part in temporary or permanent global form or in the form of
book-entry securities and, in such case, the identity of the Depositary for such series;
(4) the
date or dates on which the principal of the Securities of the series is payable;
(5) the
rate or rates, which may be fixed or variable, 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 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
place or places where payments with respect to the Securities of the series shall be payable;
(8) the
right, if any, to defer or extend payment of interest on the debt securities and the maximum length of any deferral or extension
period;
(9) the
dates, if any, on which, the price or prices at which and the terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(10) the
obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund 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
date or dates, if any, on 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;
(11) if
other than denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the
Securities of the series shall be issuable;
(12)
whether the series of Securities will be subject to any mandatory or optional sinking fund or similar provisions;
(13)
the currency or currency units in which payment of the principal of and any premium and interest on the Securities of the
series shall be payable;
(14)
whether and under what circumstances the Company will pay additional amounts on the Securities of the series held by non-U.S.
persons in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Company will have
the option to redeem such Securities rather than pay such additional amounts;
(15)
the terms pursuant to which the Securities of the series are subject to defeasance and satisfaction and discharge;
(16)
any addition to, or modification or deletion of, any Events of Default or covenants provided for with respect to the Securities
of the series;
(17)
the terms and conditions, if any, pursuant to which the Securities of the series are secured;
(18)
whether the Securities of the series will be convertible into shares of common stock or any other securities of the Company
and, if so, the terms and conditions upon which such Securities will be so convertible, including whether conversion is mandatory,
at the option of the holder, or at the option of the Company, the conversion price, the conversion period and any provisions pursuant
to which the number of shares of common stock or other securities of the Company to be received by the holders of such series of
Securities would be subject to adjustment;
(19)
if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall
be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.1;
(20) any
provisions granting special rights to holders when a specified event occurs;
(21) any
special tax implications of the Securities of the series, including provisions for Original Issue Discount Securities, if offered;
(22) the
form of the Securities of the series, including the form of the Certificate of Authentication for such series;
(23) the
subordination terms of the Securities of the series; and
(24) any
and all other terms with respect to such series, 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.
All Securities of any one series shall be
substantially identical except as to denomination and except as may otherwise be provided in or pursuant to 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, 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 Officers’ Certificate
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. Unless otherwise provided, a series may be reopened for issuances
of additional Securities of such series.
Section 2.2 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 of the Company and as set forth in an Officers’
Certificate of the Company and 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 stock exchange on which Securities of that series may be listed, or to conform to usage.
Section 2.3 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 thereof, subject to
Section 2.1(a)(12). The Securities of a particular series shall bear interest payable on the Interest Payment Dates and
at the rate specified with respect to that series. Unless otherwise provided pursuant to Section 2.1, 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 in the United States, unless otherwise specified with respect
to any series of Securities, by the Corporate Trust Office of the Trustee. Each Security shall be dated the date of its authentication.
Unless otherwise provided pursuant to Section 2.1, 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 applicable Business Day that is the Regular Record Date for such interest installment. Unless otherwise provided in the
terms of a series of Securities, at the option of the Company, payment of interest may be mailed by check to the holders of the
Securities of any series at their respective addresses set forth in the Security Register (as herein defined) or wired if held
in book-entry form at The Depository Trust Company. 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 on or prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security
as provided in Section 3.3.
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 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 the applicable Business Day that is 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. The Trustee shall then 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. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first class postage prepaid, to each Securityholder at his
or her address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered
on such Special Record Date and shall be no longer payable pursuant to the following clause (2).
(2) The
Company may make 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 2.1 hereof,
the term “Regular Record Date”, as used in this Section 2.3, with respect to a series of Securities with
respect to 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 2.1 hereof shall occur, if such
Interest Payment Date is the first day of a month, or (ii) the last day of the month immediately preceding the month in which an
Interest Payment Date established for such series pursuant to Section 2.1 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 2.3, 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 2.4 Execution
and Authentication.
Two Officers shall sign the Securities for
the Company by manual or facsimile signature. If an Officer whose signature is on a Security no longer holds that office at the
time the Trustee authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized
signatory of the Trustee or an Authentication Agent manually signs the certificate of authentication on the Security. The signature
shall be conclusive evidence that the Security has been authenticated under 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 written order of the Company for the authentication and delivery of such Securities, signed
by two Officers, and the Trustee shall authenticate and deliver such Securities in accordance with such written order.
In authenticating such Securities and accepting
the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive,
and (subject to Section 7.1) shall be fully protected in relying upon, an Opinion of Counsel and an Officers’ Certificate
stating that the form and terms thereof have been established in conformity with the provisions of this Indenture.
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 2.5 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 in
the United States, or such other location designated by the Company, 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 2.5. 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 in the United States, or such other
location designated by the Company 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 provided in this Article and which at all reasonable times shall be open for inspection by the Trustee. Unless otherwise specified
in a supplemental indenture, the Trustee is hereby appointed as “Security Registrar” for the purpose of registering
the Securities and the transfer of Securities of each series.
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 2.5, 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) 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 2.6, Section 3.3(b) and Section 9.4 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 except the unredeemed portion of any Securities
of any series being redeemed in part. The provisions of this Section 2.5 are, with respect to any Global Security, subject
to Section 2.11 hereof.
Section 2.6 Temporary
Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall 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 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 2.7 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 the Company’s request 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 the written request or authorization of any Officer of the
Company. 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 matured or is about to mature 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 each of 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 2.7 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 2.8 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 request of the Company
at the time of such surrender, the Trustee shall deliver to the Company any canceled Securities held by the Trustee. In the absence
of such request, the Trustee may 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 2.9 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 Fourteen, the holders of senior indebtedness), 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 Fourteen, the holders of senior indebtedness).
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, with
the written consent of the Company, 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 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 2.1 that the Securities of a particular series are issuable as a Global
Security, then the Company shall execute and the Trustee shall, in accordance with Section 2.4, authenticate and deliver,
a Global Security that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount
of, such of the Outstanding Securities of such series as shall be specified therein and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to reflect exchanges, (ii) shall be registered
in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the Depositary or 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.” Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by
the Trustee in such manner and upon instructions given by such Person or Persons as shall be specified therein or in the written
request signed in the name of the Company, by two Officers thereof to be delivered to the Trustee pursuant to Section 2.4
or Section 2.6.
(b) Notwithstanding
the provisions of Section 2.5, the Global Security of a series may be transferred, in whole but not in part, and in the
manner provided in Section 2.5, 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, this Section 2.11
shall no longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.5,
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 2.5, the Trustee, upon receipt of an Officers’
Certificate 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. The Trustee shall deliver such Securities to the Depositary
for delivery to the Persons in whose names such Securities are so registered.
(d) If
an Event of Default has occurred and is continuing with respect to a particular series of the Securities, the Company may execute,
and the Trustee, upon receipt of an Officers’ Certificate directing the authorization and delivery thereof, shall 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.
Section 2.12 No
Obligation of the Trustee.
(a) The
Trustee shall have no responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant
in, the Depositary or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant
or member thereof, with respect to any ownership interest in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the
payment of any amount or delivery of any Securities (or other security or property) under or with respect to such Securities. All
notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Securities shall
be given or made only to or upon the order of the registered Holder or Holders (which shall be the Depositary or its nominee in
the case of a Global Security). The rights of beneficial owners in any Global Security shall be exercised only through the Depositary,
subject to the applicable rules and procedures of the Depositary. The Trustee may rely and shall be fully protected in relying
upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.
(b) The
Trustee shall have no obligations 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 the Depositary participants, members or beneficial owners in any Global Security) other than to require delivery
of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required
by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements
hereof.
ARTICLE
III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.1 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
2.1 hereof.
Section 3.2 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 the right reserved in such Securities so to do, the Company shall, or shall cause the Trustee to, give notice
of such redemption to holders of the Securities of such series to be redeemed by sending electronically or by mailing, first class
postage prepaid, a notice of such redemption not less than 30 days and not more than 60 days before the date fixed for
redemption of that series to such holders 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 sent 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 to duly 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 Officers’ Certificate evidencing
compliance with any such restriction.
Each such notice of redemption shall specify
the date fixed for redemption and the redemption price (or the manner of calculation thereof) 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 in the United States, 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 for 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 whole or 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 30 days’ notice
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 on a pro rata basis or in such other manner as it shall deem appropriate and fair in
its discretion. The portion of the principal amount of Securities so selected for partial redemption shall be equal to the minimum
authorized denomination for Securities of that series or any integral multiple thereof. Upon making its selection, the Trustee
shall promptly notify the Company in writing of the numbers of the Securities to be redeemed, in whole or in part.
Unless otherwise provided in the applicable
supplemental indenture, the Company shall not be required to issue, register the transfer of, or exchange any Securities of a series
that are subject to redemption during a period beginning at the opening of business 15 days before the day of mailing of a
notice of redemption of less than all of that series of Securities that may be selected for redemption and ending at the close
of business on the day of such mailing.
The Company may, if and whenever it shall
so elect, by delivery of instructions signed on its behalf by any 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 give notice of redemption in the manner set forth in
this Section 3.2, such notice to be in the name of the Company or its own name, as the Trustee or such paying agent may
deem advisable. In any case in which notice of redemption is to be given 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 this Section 3.2.
Section 3.3 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. 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. However, if the date fixed for redemption is subsequent to a Regular Record Date with respect
to any Interest Payment Date and on or prior to such 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 Regular Record Date pursuant to Section 2.3.
(b) Upon
presentation of any 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 3.4 Sinking
Fund.
The provisions of Sections 3.4,
3.5 and 3.6 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified
as contemplated by Section 2.1 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 3.5. 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 3.5 Satisfaction
of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding
Securities of a series (other than any Securities previously called for redemption) 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 3.6 Redemption
of Securities for Sinking Fund.
Not less than 45 days prior to each
sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers’ 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 3.5 and
the basis for such credit and will, together with such Officers’ 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 3.2 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 3.2. Such notice
having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 3.3.
ARTICLE
IV
CERTAIN COVENANTS
Section 4.1 Payment
of Principal, Premium and Interest.
The Company will duly and punctually pay
or cause to be paid the principal of and any premium 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.
Section 4.2 Maintenance
of Office or Agency.
So long as any series of the Securities
remain Outstanding, the Company agrees to maintain an office or agency in the United States with respect to each such series, where
(i) Securities of that series may be presented for payment, (ii) Securities of that series may be presented as hereinabove
authorized for registration of transfer and exchange and (iii) notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be given or served, such designation to continue with respect to such office or
agency until the Company shall, by written notice signed by an Officer 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, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations,
notices and demands.
Section 4.3 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 4.3:
(1) that
it will hold all sums held by it as such agent for the payment of the principal of and any premium 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 any premium 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; and
(4) 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 shall on or before each due date
of the principal of and any premium 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 any premium 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 any
premium or interest on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal and any
premium 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 shall promptly notify the Trustee of this action or failure
so to act.
(c) Notwithstanding
anything in this Section 4.3 to the contrary, (i) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.5 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; upon such payment by any paying agent to the Trustee, such paying
agent shall be released from all further liability with respect to such money.
Section 4.4 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 4.5 Compliance
with Consolidation Provisions.
The Company will not, while any of the Securities
remain Outstanding, consolidate with, or merge into, or merge into itself, or sell or convey all or substantially all of its property
to any other company unless the provisions of Article Ten hereof are complied with.
Section 4.6 Statement
by Officers as to Default.
The Company will deliver to the Trustee,
within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers’ Certificate
signed by its principal executive officer, principal financial officer or principal accounting officer stating whether or not to
the best knowledge of the signer thereof, the Company is in default in the performance or observance of any of the terms, provisions
and conditions of this Indenture, and if the Company shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
ARTICLE
V
SECURITYHOLDERS’ LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 5.1 Company
to Furnish Names and Addresses of Securityholders to Trustee.
The Company will furnish or cause to be
furnished to the Trustee (a) semiannually on _____ ___ and _____ ___, 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 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 of Securities for which the Trustee shall be the Security Registrar.
Section 5.2 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 5.1 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 5.1 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. The Company, the Trustee, the Security Registrar and anyone else shall have the protection
of Section 312(c) of the Trust Indenture Act with respect to the sending of any material pursuant to a request made pursuant to
Section 312(b) of the Trust Indenture Act.
Section 5.3 Reports
by the Company.
(a) The
Company covenants and agrees to file with the Trustee (unless such reports have been filed on the Securities and Exchange Commission’s
Electronic Data Gathering, Analysis, and Retrieval system), within 15 days after the Company files the same with the Securities
and Exchange 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 Securities and Exchange Commission may from time to time by rules and regulations prescribe) that
the Company may be required to file with the Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act. If the Company is no longer required to file information, documents or reports pursuant to either of such sections
of the Exchange Act, the Company shall continue to provide the Trustee with reports containing substantially the same information
as would have been required to be filed with the Securities Exchange Commission had the Company continued to have been subject
to such reporting requirements. In such event, such reports shall be provided to the Trustee within 15 days after the dates
applicable to a registrant that is not an accelerated filer or a large accelerated filer on which the Company would have been required
to provide reports to the Securities and Exchange Commission had it continued to have been subject to such reporting requirements.
For the avoidance of doubt, the Company shall also comply with the other provisions of Section 314(a) of the Trust Indenture Act.
(b) The
Company covenants and agrees to file with the Trustee and the Securities and Exchange Commission, in accordance with the rules
and regulations prescribed from to time by the Securities and Exchange Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from
time to time by such rules and regulations.
(c) The
Company covenants and agrees to transmit electronically or by mail, first class postage prepaid, or reputable over-night delivery
service that provides for evidence of receipt, to the Securityholders, as their names and addresses appear upon the Security Register,
within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required
to be filed by the Company pursuant to subsections (a) and (b) of this Section 5.3 as may be required by rules
and regulations prescribed from time to time by the Securities and Exchange Commission.
Section 5.4 Reports
by the Trustee.
(a) On
or before _____ ___ in each year in which any of the Securities are Outstanding, the Trustee 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 the preceding _____ ___, if and to the extent required under Section 313(a) of the Trust Indenture Act, detailing certain events
that occurred within the previous 12 months.
(b) The
Trustee shall comply with Sections 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 stock exchange upon which any Securities are listed (if so listed) and also with the Securities and Exchange Commission.
The Company agrees to notify the Trustee when any Securities become listed on any stock exchange.
ARTICLE
VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.1 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 continuance of such default for a period of 30 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 (a) 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 (b)
in any payment required by any sinking or analogous fund established with respect to that series, whether or not such payment
is prohibited by Article Fourteen and the provisions of any indenture supplemental hereto; 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 any premium for this purpose;
(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 2.1 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 60 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 in writing 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) if
the Securities of the series are convertible into shares of common stock or other securities of the Company, failure by the Company
to deliver common stock or the other securities when the holder or holders of such Securities elect to convert such Securities
into shares of common stock or other securities of the Company;
(5) 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;
(6) 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, in each such case, the order or decree remains unstayed and in effect for 90 days; or
(7) any
other Event of Default provided with respect to Securities of that series.
(b) In
each and every such case (other than an Event of Default specified in clauses (5) or (6) 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 (or, if the Securities of such series are Original
Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of, premium, if
any, and accrued interest, if any, 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, notwithstanding anything contained in this Indenture or in the
Securities of that series or established with respect to that series pursuant to Section 2.1 to the contrary. If an Event
of Default specified in clauses (5) or (6) above occurs, all unpaid principal (or, if the Securities of such series are Original
Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of, premium, if
any, and accrued interest, if any, on, all the Securities of that series then outstanding will become automatically due and payable
immediately, without any declaration or other act on the part of the Trustee or any holder.
(c) At
any time after the principal of 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 or Yield to Maturity (in the case of Original Issue Discount Securities)
expressed in the Securities of that series (or at the respective rates of interest or Yields to Maturity of all the Securities,
as the case may be) to the date of such payment or deposit) and any amount payable to the Trustee under Section 7.6, and
(ii) any and all Events of Default under the Indenture with respect to such series, other than the non-payment of principal,
premium, if any, or interest on Securities of that series that (or, if any Securities are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms thereof) shall not have become due by their terms, shall have been remedied
or waived as provided in Section 6.6.
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, 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 6.2 Collection
of Indebtedness and Suits for Enforcement by Trustee.
(a) The
Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities
of a series, or any payment required by any sinking or analogous fund established with respect to that series as and when the same
shall have become due and payable, and such default shall have continued for a period of 30 days, or (ii) in case it
shall default in the payment of the principal of (or premium, if any, on) any of the Securities of a series when the same shall
have become due and payable, whether upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise,
then, upon demand of the Trustee, 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 reasonable
costs and expenses of collection, and the amount payable to the Trustee under Section 7.6.
(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 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, 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 this
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 7.6; 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 7.6.
(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 relating 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 7.6, 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 effective 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 6.3 Application
of Moneys Collected.
Any moneys 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 the payment if only partially paid) and upon surrender thereof
(if fully paid):
FIRST: To the payment of costs and expenses
of collection and of all amounts payable to the Trustee under Section 7.6;
SECOND: To the payment of all senior indebtedness
of the Company if and to the extent required by Article Fourteen; and
THIRD: To the payment of the amounts then
due and unpaid upon the Securities of such series for principal and any premium 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 any premium and interest, respectively.
Section 6.4 Limitation
on Suits.
No holder of a 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 reasonable indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred therein or thereby; and (iv) the Trustee for 60 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 60 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 any premium and (subject to Section 2.3) interest on such Security (whether upon redemption, repurchase, maturity
or otherwise) or payment or delivery of any amounts due upon conversion of Securities of any series that are convertible into shares
of common stock or other securities, as therein provided, on or after the respective due dates expressed in such Security (or in
the case of redemption or repurchase, on the redemption date or repurchase date, respectively), or to institute suit for the enforcement
of any such payment or delivery on or after such respective dates (including the redemption date or repurchase date, as applicable)
shall not be impaired or affected without the consent of such holder. 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,
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 6.4, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 6.5 Rights
and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except
as otherwise provided in Section 2.7, 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 on acquiescence therein; and, subject to the provisions of Section 6.4, 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 6.6 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 8.4, 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 be unduly prejudicial to the rights of holders of Securities
of such series not consenting; and provided, further, that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction. Prior to the taking of any action hereunder, the Trustee shall be entitled
to reasonable indemnification satisfactory to the Trustee against all losses and expenses caused by taking or not taking such action.
Subject to the provisions of Section 7.1, the Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of the Trustee, determine that the proceeding so directed would
involve the Trustee in personal liability. 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 8.4, may determine, and may have the Trustee
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 2.1 with respect to such series and its consequences, except for (a) a
default in the payment of the principal of or any premium or interest on, any of the Securities of that series (whether upon redemption,
repurchase, maturity or otherwise) or payment or delivery of any amounts due upon conversion of Securities of any series that are
convertible into shares of common stock or other securities 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 6.1(c)), or (b) if the
Securities of that series are convertible into shares of common stock or other securities, the failure by the Company to deliver
common stock or the other securities, as and when they shall become deliverable by the terms of such Securities. 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 6.7 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; provided, however, that the provisions of this Section 6.7 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
VII
CONCERNING THE TRUSTEE
Section 7.1 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:
(i) 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
(ii) in
the absence of bad faith 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; however, 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;
(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
(determined as provided in Section 8.4) 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
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 7.2 Certain
Rights of Trustee.
Except as otherwise provided in Section
7.1:
(a) The
Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any document (whether in its
original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document. The Trustee shall receive and retain financial reports and statements
of the Company as provided herein, but shall have no duty to review or analyze such reports or statements to determine compliance
under covenants or other obligations of the Company.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’ Certificate and an Opinion of Counsel, which shall
conform to the provisions of Section 13.7. The Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion.
(c) The
Trustee may act through its attorneys and agents, and shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The
Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
(e) The
permissive rights of the Trustee to take actions enumerated in this Indenture shall not be construed as duties.
(f) Except
with respect to Section 4.1, the Trustee shall have no duty to inquire as to the performance of the Company with respect
to the covenants contained in Article Four. In addition, the Trustee shall not be deemed to have knowledge of an Event of Default,
except (i) any Default or Event of Default occurring pursuant to Section 6.1(a)(2) or (ii) any Default or Event
of Default of which a Responsible Officer of the Trustee shall have received written notification from the Company or any Holder
of such Default or Event of Default at the Corporate Trust Office, and such notice references the applicable series of Securities
and this Indenture.
(g) The
rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended
to, and shall be enforceable by, the Trustee in each of its capacities (including as Paying Agent) hereunder, and to each agent,
custodian and other Person employed to act hereunder.
(h) Delivery
of reports, information and documents to the Trustee under Section 5.3 is for informational purposes only; 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 its covenants hereunder (as to which the Trustee is entitled
to rely exclusively on an Officers’ Certificate).
(i) The
Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles
of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may
be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
(j) Anything
in this Indenture notwithstanding, in no event shall the Trustee be liable for special, indirect, punitive or consequential loss
or damage of any kind whatsoever (including but not limited to loss of profit), even if the Trustee has been advised as to the
likelihood of such loss or damage and regardless of the form of action.
(k) The
Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture
arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation,
(i) acts of God, including earthquakes, fire and flood; (ii) terrorism, wars and other military disturbances; (iii) sabotage, epidemics
and riots; (iv) interruptions, loss or malfunctions of utilities, computer (hardware or software) or communication services; (v)
accidents and labor disputes; and (vi) acts of civil or military authorities and governmental actions.
Section 7.3 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 2.1, or for the use or application of any moneys received by any paying agent other than
the Trustee.
Section 7.4 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 7.5 Moneys
Held in Trust.
Subject to the provisions of Section
11.5, 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 of the Trustee 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 with the
Company to pay thereon.
Section 7.6 Compensation
and Reimbursement.
(a) The
Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such reasonable 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. Except as otherwise expressly provided
herein, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not regularly in its employ). Except any such expense, disbursement
or advance as may arise from its negligence or bad faith. The Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any loss, liability or expense incurred without negligence
or bad faith on the part of the Trustee and arising out of or in connection with the acceptance or administration of the trusts
hereby created, including the reasonable costs and expenses of defending itself against any claim of liability in the premises.
(b) The
obligations of the Company under this Section 7.6 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. The provisions of this Section 7.6 shall
survive the resignation or removal of the Trustee and the termination of this Indenture.
(c) When
the Trustee incurs expenses or renders services after a Default specified in Section 6.1(a)(5) and (6) occurs, such
expenses (including the charges and expenses of its counsel) and the compensation for such services shall be paid to the extent
allowed under any Bankruptcy Law and are intended to constitute expenses of administration under any Bankruptcy Law.
Section 7.7 Reliance
on Officers’ Certificate.
Except as otherwise provided in Section
7.1, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that
a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith 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 7.8 Disqualification;
Conflicting Interests.
If the Trustee has or shall acquire any
“conflicting interest” within the meaning 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 7.9 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 Securities and Exchange Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 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 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
7.9, the combined capital and surplus of such corporation 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 7.9, 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 electronically or by mail, first class postage
prepaid, 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 the Securities of such series
by or pursuant to a Board Resolution. If no successor trustee shall have been so appointed and have accepted such 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 such 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:
(1) the
Trustee shall fail to comply with the provisions of Section 7.8 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
(2) the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.9 and shall fail to resign after written
request therefor by the Company or by any such Securityholder; or
(3) 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 or pursuant to
a Board Resolution, or, unless the Trustee’s duty to resign is stayed as provided herein, 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 written 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 7.10 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 7.10 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; however, upon
the request of the Company or the successor trustee, such retiring Trustee shall, upon payment of its charges, 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 (1) shall
contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor trustee relates, (2) shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall
add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supple- mental 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. 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; however, upon 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 7.11, 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 7.11, 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, shall be the
successor of the Trustee hereunder, provided that such corporation shall be qualified under the provisions of Section 7.8
and eligible under the provisions of Section 7.9, 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 Defaults.
If a Default occurs and is continuing hereunder
with respect to Securities of any series and if it is actually known to a Responsible Officer of the Trustee, the Trustee shall
send to each holder of such Securities notice of the Default within 90 days after such Default occurs provided, however,
that in the case of any Default of the character specified in Section 6.1(a)(3) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the occurrence thereof. Except in the case of a default in
payment of principal of or interest on any Security (whether upon redemption, repurchase, maturity or otherwise) (including payments
pursuant to the redemption or repurchase provisions of such Security, if any) or payment or delivery of any amounts due upon conversion
of Securities of any series that are convertible into shares of common stock or other securities, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the
interests of the holders of such Securities.
ARTICLE
VIII
CONCERNING THE SECURITYHOLDERS
Section 8.1 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 Officers’ Certificate, fix in advance a record date (in accordance with Section 316(c) of the Trust Indenture
Act) 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
purpose 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 8.2 Proof
of Execution by Securityholders.
Subject to the provisions of Section
7.1, proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his or her
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 Company.
(b) The
ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar
thereof.
(c) The
Trustee or the Company may require such additional proof of any matter referred to in this Section 8.2 as it shall deem
necessary.
Section 8.3 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 Company 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 2.3) interest on such Security and for all other purposes. Neither the Company nor the Trustee nor any paying agent
nor any Security Registrar shall be affected by any notice to the contrary.
Section 8.4 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 or consent (or waiver,
as the case may be) 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 direct or indirect 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 or consent (or waiver, as the case may be), only Securities of such series that 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 8.4, 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 8.5 Actions
Binding on Future Securityholders.
At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.1, 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 8.2,
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
IX
SUPPLEMENTAL INDENTURES
Section 9.1 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, for one or more of the following purposes:
(a) to
cure any ambiguity, omission, defect or inconsistency herein or in the Securities of any series;
(b) to
comply with Article Ten;
(c) to
provide for Securities in bearer form, or uncertificated Securities in addition to or in place of certificated Securities;
(d) to
add Guarantees, including Subsidiary Guarantees, with respect to debt securities or to release Subsidiary Guarantors from Subsidiary
Guarantees in accordance with the terms of the applicable series of Securities or to secure a series of Securities;
(e) to
add to the covenants of the Company for the benefit of the holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred upon the Company;
(f) 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;
(g) to
make any change that does not adversely affect the rights of any Securityholder in any material respect, provided that any
amendment to conform the terms of any Securities to its description contained in the final offering document shall not be deemed
to be adverse to any Securityholder;
(h) to
provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section
2.1, to establish the form of any certifications required to be furnished under the terms of this Indenture or any series of
Securities, or to add to the rights of the holders of any series of Securities;
(i) to
comply with any requirements of the Securities and Exchange Commission in connection with registration of the Securities under
the Securities Act of 1933 qualifying, or maintaining the qualification of, this Indenture under the Trust Indenture Act or to
comply with the Trust Indenture Act; or
(j) to
secure any series of Security.
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 9.1 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 9.2.
Section 9.2 Supplemental
Indentures with Consent of Securityholders.
With the consent (evidenced as provided
in Section 8.1) 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 Board Resolutions,
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 9.1 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
affected thereby, (i) change the maturity date 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; (ii) reduce
the amount of principal of an Original Issue Discount Security or any other Security payable upon acceleration of maturity; (iii) change
the currency in which any Security or any premium or interest is payable; (iv) impair the right to receive payment of principal
of and interest on any Security (whether upon redemption, repurchase, maturity, or otherwise) or payment or delivery of any amounts
due upon conversion of Securities of any series that are convertible into shares of common stock or other securities on or after
the due dates or to institute suit for the enforcement of any payment on or with respect to any Security; (v) adversely change
the right to convert or exchange, including decreasing the conversion rate or increasing the conversion price of, that Security
(if applicable); (vi) if the Securities are secured, change the terms and conditions pursuant to which the Securities are
secured in a manner adverse to the holders of the Securities; (vii) reduce the percentage in principal amount of outstanding Securities
of any series, the consent of whose holders is required for modification or amendment of this Indenture or for waiver of compliance
with any provision of this Indenture; (viii) reduce the requirements contained in this Indenture for a quorum
for a meeting or for voting; (ix) change any obligations of the Company to maintain an office or agency in the places and
for the purposes required by this Indenture; (x) modify the subordination provisions in a manner adverse to the holders of such
Securities; or (xi) modify any of the above provisions.
It shall not be necessary for the consent
of the Securityholders of any series affected thereby under this Section 9.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.3 Effect
of Supplemental Indentures.
Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.1, this Indenture shall, with respect to such series, 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.
Section 9.4 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 10.1, may bear a notation in form approved by the Company, provided such form meets the requirements of any
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 Trustee and the Company, to any modification
of this Indenture contained in any such supplemental indenture may be prepared and executed by the Company, authenticated by the
Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section 9.5 Execution
of Supplemental Indentures.
Upon the request of the Company, accompanied
by the 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 without any obligation to
do so) enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.1, shall be provided
an Opinion of Counsel and an Officers’ Certificate as conclusive evidence that any supplemental indenture executed pursuant
to this Article is authorized or permitted by, and conforms to, the terms of this Article and that it is proper for the Trustee
under the provisions of this Article to join in the execution thereof; provided, however, that such Opinion of Counsel
need not be provided in connection with the execution of a supplemental indenture that establishes the terms of a series of Securities
pursuant to Section 2.1 hereof, unless otherwise requested by the Trustee.
Section 9.6 Conformity
with Trust Indenture Act.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the Trust Indenture Act of 1939, as amended, in effect on such date.
ARTICLE
X
SUCCESSOR CORPORATION
Section 10.1 Company
May Consolidate, Etc.
Unless otherwise specified in a supplemental
indenture hereto, nothing contained in this Indenture or in any of the Securities 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 Person (whether or not affiliated with the Company or its successor or successors) authorized to acquire and operate
the same. The Company hereby covenants and agrees that, upon any such consolidation or merger (in each case, if the Company is
not the surviving corporation of such transaction), sale, conveyance, transfer or other disposition, the due and punctual payment
of the principal of and any premium 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 2.1 to be kept or performed by
the Company shall be expressly assumed, by supplemental indenture (which shall conform to the requirements of the Trust Indenture
Act as then in effect) satisfactory in form to the Trustee 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.
Section 10.2 Successor
Substituted.
(a) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor
Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and any premium and interest on all of the Securities of all series Outstanding and the due
and punctual performance of all of the covenants and conditions of this Indenture or established with respect to each series of
the Securities pursuant to Section 2.1 to be performed by the Company with respect to each series, such successor Person
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 Person 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 Indenture or in any of the Securities shall prevent the Company from merging into itself or acquiring by purchase
or otherwise all or any part of the property of any other Person (whether or not affiliated with the Company).
Section 10.3 Evidence
of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of
Section 7.1, shall be provided an Opinion of Counsel and an Officers’ Certificate as conclusive evidence that any
such consolidation, merger, sale, conveyance, transfer or other disposition, and any such assumption, comply with the provisions
of this Article.
ARTICLE
XI
SATISFACTION AND DISCHARGE
Section 11.1 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 (other than any Securities
that shall have been destroyed, lost or stolen and that shall have been replaced or paid as provided in Section 2.7 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 11.5);
or (b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation shall have become
due and payable, or, except in the case of any Securities that are convertible or exchangeable, 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 an amount
of money in U.S. dollars sufficient, or non-callable Governmental Obligations, the principal of and interest on which when due,
will be sufficient 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 any premium 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 2.3, 2.5, 2.7, 4.1, 4.2, 4.3
and 7.10, that shall survive until the date of maturity or redemption date, as the case may be, and Sections 7.6 and
11.5, 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 proper instruments acknowledging satisfaction of and discharging this Indenture with respect to such
series.
Section 11.2 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 11.1 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds money in U.S.
dollars sufficient or an amount of non-callable Governmental Obligations, the principal of and interest on which when due, will
be sufficient 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 such Securities
of that series not theretofore delivered to the Trustee for cancellation, including principal and any premium 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 2.3, 2.5, 2.7, 4.1,
4.2, 4.3, 7.6, 7.10 and 11.5 hereof that shall survive until such Securities shall mature and be paid. Thereafter, Sections 7.6
and 11.5 shall survive.
Section 11.3 Deposited
Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited
with the Trustee pursuant to Sections 11.1 or 11.2 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 11.4 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 11.5 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 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 any premium or interest on such Securities shall have respectively become
due and payable, shall be repaid to the Company or (if then held by the Company) shall be discharged from such trust. The paying
agent and the Trustee thereupon 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 an unsecured general creditor, look
only to the Company for the payment thereof.
ARTICLE
XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 12.1 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. 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
XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Effect
on Successors and Assigns.
All the covenants, stipulations, promises
and agreements in this Indenture contained by or on behalf of the Company shall bind its successors and assigns, whether so expressed
or not.
Section 13.2 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 Person that shall at the
time be the lawful sole successor of the Company.
Section 13.3 Notices.
Except as otherwise expressly provided herein,
any notice or demand that by any provision of this Indenture is required or permitted to be given or served by the Trustee or by
the holders of Securities to or on the Company may be given or served by being deposited first class postage prepaid in a post-office
letterbox addressed (until another address is filed in writing by the Company with the Trustee), as follows: Protalix BioTherapeutics,
Inc., 2 Snunit Street, Science Park, P.O. Box 455, Carmiel, Israel 20100, Attention: _________________. Any notice, election, request
or demand by the Company or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made in writing at the Corporate Trust Office of the Trustee.
Section 13.4 Notice
to Holders of Securities; Waiver.
Except as otherwise expressly provided herein,
where this Indenture provides for notice to holders of Securities of any event, such notice shall be sufficiently given to holders
of Securities if in writing and mailed, first-class postage prepaid, to each holder of a Security affected by such event, at the
address of such holder as it appears in the Security Register, not earlier than the earliest date, and not later than the latest
date, prescribed for the giving of such notice.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give such notice to holders of Securities by mail, then
such notification as shall be made with the approval of the Trustee shall constitute sufficient notice to such holder for every
purpose hereunder. In any case where notice to holders of Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice mailed to any particular holder of a Security shall affect the sufficiency of such notice with respect
to other holders of Securities given as provided herein.
Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the applicable
event, and such waiver shall be the equivalent of such notice. Waivers of notice by holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 13.5 Governing
Law.
This Indenture and each Security shall be
deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance
with the laws of said State.
Section 13.6 Effect
of Headings and Table of Contents.
The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 13.7 Compliance
Certificates and Opinions.
(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 Officers’ Certificate stating that all conditions precedent provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent have been complied with. However, in the case of any such application or demand as to which the furnishing
of such documents is specifically required by any provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
(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 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. Each opinion delivered to the Trustee hereunder may rely on the facts
stated in an Officers’ Certificate delivered therewith.
Section 13.8 Payments
on Business Days.
Except as provided pursuant to Section
2.1 pursuant to a Board Resolution, and as set forth in an Officers’ Certificate, or established in one or more indentures
supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of
redemption or repurchase of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any)
(whether upon repurchase, redemption, maturity, or otherwise) may be made on the next succeeding Business Day with the same force
and effect as if made on the nominal date of maturity, redemption, or repurchase, and no additional interest shall accrue for the
period after such nominal date.
Section 13.9 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.
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 Assignment.
The Company will have the right at all times
to assign any of its rights or obligations under this Indenture to a direct or indirect wholly-owned Subsidiary of the Company,
provided that, in the event of any such assignment, the Company, will remain liable for all such obligations. Subject to
the foregoing, the Indenture is binding upon and inures to the benefit of the parties thereto and their respective successors and
assigns. This Indenture may not otherwise be assigned by the parties thereto.
ARTICLE
XIV
SUBORDINATION OF SECURITIES
Section 14.1 Subordination
Terms.
The payment by the Company of the principal
of and any premium 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 Securities.
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed all as of the day and year first above written.
|
PROTALIX BIOTHERAPEUTICS, INC. |
|
|
|
By |
|
|
|
Name: |
|
|
Title: |
|
_____________________________, |
|
|
as Trustee |
|
|
|
|
By |
|
|
|
Name: |
|
|
Title: |
Exhibit 12.1
Statement of Computation of Ratio
of Earnings to Fixed Charges
(in thousands)
| |
Year Ended December 31, | | |
Nine Months Ended
September 30, | |
| |
2010 | | |
2011 | | |
2012 | | |
2013 | | |
2014 | | |
2015 | |
Earnings: | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Net loss before income taxes | |
$ | (28,998 | ) | |
$ | (36,529 | ) | |
$ | (11,618 | ) | |
$ | (27,790 | ) | |
$ | (29,943 | ) | |
$ | (14,863 | ) |
Add: Fixed charges | |
| 89 | | |
| 102 | | |
| 96 | | |
| 1,126 | | |
| 3,653 | | |
| 2,741 | |
(Loss) earnings to cover fixed charges | |
$ | (28,909 | ) | |
$ | (36,427 | ) | |
$ | (11,522 | ) | |
$ | (26,664 | ) | |
$ | (26,290 | ) | |
$ | (12,122 | ) |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Fixed Charges: | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Interest expense, including
amortization of debt issuance costs and debt discount | |
| -- | | |
| -- | | |
| -- | | |
$ | 1,015 | | |
$ | 3,549 | | |
$ | 2,665 | |
Estimated
interest component of rent expenses (1) | |
$ | 89 | | |
$ | 102 | | |
$ | 96 | | |
| 111 | | |
| 104 | | |
| 76 | |
Total Fixed Charges | |
$ | 89 | | |
$ | 102 | | |
$ | 96 | | |
$ | 1,126 | | |
$ | 3,653 | | |
$ | 2,741 | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Deficiency of Earnings Available
to Cover Fixed Charges (2) | |
$ | (28,998 | ) | |
$ | (36,529 | ) | |
$ | (11,618 | ) | |
$ | (27,790 | ) | |
$ | (29,943 | ) | |
$ | (14,863 | ) |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| (1) | Represents
the estimated portion of rental expense from operating leases that is considered by us
to be representative of interest. |
| (2) | We
have not had any preferred stock outstanding during the periods presented; therefore,
the ratio of earnings to (and the deficiency of earnings available to cover) combined
fixed charges and preferred stock dividends is the same as our ratio of earnings to (and
the deficiency of earnings available to cover) fixed charges alone. |
Protalix BioTherapeutics (AMEX:PLX)
Historical Stock Chart
From Mar 2024 to Apr 2024
Protalix BioTherapeutics (AMEX:PLX)
Historical Stock Chart
From Apr 2023 to Apr 2024