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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of

the Securities Exchange Act of 1934

Date of Report (Date of Earliest Event Reported): August 26, 2021 (August 24, 2021)

Protalix BioTherapeutics, Inc.

(Exact name of registrant as specified in its charter)

Delaware

    

001-33357

    

65-0643773

(State or other jurisdiction
of incorporation)

(Commission File Number)

(IRS Employer
Identification No.)

2 University Plaza

Suite 100

Hackensack, NJ

07601

(Address of principal executive offices)

(Zip Code)

 Registrant’s telephone number, including area code 201-696-9345

(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

    Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

    Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

    Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

    Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class

Trading Symbol(s)

Name of each exchange on which registered

Common stock, $0.001 par value

PLX

NYSE American

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

Item 1.01         Entry into a Material Definitive Agreement

As previously disclosed, on August 12, 2021, Protalix BioTherapeutics, Inc. (the “Company”) entered into definitive agreements (the “Exchange Agreements”) relating to exchanges (the “Exchanges”) of an aggregate of $54.65 million principal amount of the Company’s outstanding 7.50% Senior Secured Convertible Notes due 2021 (the “Existing Notes”) for an aggregate of $28.75 million principal amount of newly issued 7.50% Senior Secured Convertible Notes due 2024 (the “Exchange Notes”), $25.90 million in cash and an additional approximately $1.1 million in cash representing accrued and unpaid interest on the Existing Notes through the closing date. The Exchanges were completed on August 25, 2021, in accordance with the terms of the Exchange Agreements. The initial conversion rate of the Exchange Notes is 563.2216 shares of the Company’s Common Stock (“Common Stock”) per $1,000 principal amount of Exchange Notes, which is equivalent to an initial conversion price of $1.7755 per share of Common Stock, subject to adjustment in certain circumstances. After giving effect to the Exchanges, $3.27 million aggregate principal amount of the Existing Notes are currently outstanding.

In order to facilitate the Exchanges, on August 24, 2021, the Company and its subsidiaries, Protalix Ltd. and Protalix BV, entered into a Third Supplemental Indenture (the “Third Supplemental Indenture”), with The Bank of New York Mellon Trust Company, N.A., as trustee, registrar, paying agent and conversion agent, and Wilmington Savings Fund Society, FSB, as the collateral agent, supplementing the Indenture, dated as of December 7, 2016, as amended or supplemented, (the “Existing Indenture”), relating to the Existing Notes. The Third Supplemental Indenture amends the Existing Indenture to, among other matters, permit the Company to issue the Exchange Notes. The Company received the consent to enter into the Third Supplemental Indenture from the holders of 77% of the aggregate principal amount of the Existing Notes outstanding as of the close of business on August 16, 2021, in accordance with Section 9.02 of the Existing Indenture. The foregoing description of the Third Supplemental Indenture does not purport to be complete and is qualified in its entirety by reference to the full text of the Third Supplemental Indenture, a copy of which is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference.

The Exchange Notes were issued pursuant to an Indenture entered into between the Company, the guarantors party thereto, The Bank of New York Mellon Trust Company, N.A., as trustee and Wilmington Savings Fund Society, FSB, as collateral agent (the “Indenture”). Interest on the Exchange Notes will be payable semi-annually at a rate of 7.50% per annum. The Exchange Notes mature on September 1, 2024, unless earlier purchased, converted, exchanged or redeemed, and will be guaranteed by the Company’s subsidiaries.

Holders may require the Company to repurchase their Exchange Notes upon the occurrence of certain events that constitute a fundamental change under the Indenture at a purchase price equal to the principal amount thereof plus accrued and unpaid interest to, but excluding, the fundamental change purchase date.

Holders may convert their Exchange Notes at any time prior to the close of business on the business day immediately preceding the stated maturity date of the Exchange Notes. Upon conversion, the Company may, at its election, deliver shares of Common Stock, cash or a combination of shares of Common Stock and cash based on the applicable conversion rate. However, until the Company obtains stockholder approval to issue additional shares of Common Stock upon conversion of the Exchange Notes, the Company will be required to settle at least a portion of its conversion obligation in cash. The Company intends to seek stockholder approval promptly in order to settle conversions of the Exchange Notes in Common Stock.

The Indenture includes covenants customary for instruments of this type, including, without limitation, restrictions on the Company’s ability to incur additional indebtedness, create liens on its properties, pay dividends and make restricted payments or certain investments, and also requires the Company to apply a portion of the proceeds from certain asset sales or licensing arrangements to redeem the Notes, in each case subject to certain exceptions. The foregoing descriptions of the Indenture and the Exchange Note do not purport to be complete and are qualified in their entirety by reference to the full text of such documents, filed hereto as Exhibit 4.2 and Exhibit 4.3, respectively, and incorporated herein by reference.

Like the Existing Notes and at equal priority, the Exchange Notes will be secured by perfected liens on all of the material assets of the Company and its subsidiaries (subject to certain exceptions and permitted liens). In connection therewith, the Company and its subsidiaries, as guarantors, entered into a U.S. Security Agreement, dated of August 24, 2021 with Wilmington Savings Fund Society, FSB, as collateral agent (the “U.S. Security Agreement”). In addition, Protalix Ltd. entered into a Security Agreement/Debenture, dated of August 24, 2021, with Altshuler Shaham Trusts Ltd., as security trustee (the “Israeli Security Agreement”). The U.S. Security Agreement and the Israeli Security

Agreement contain the terms and conditions of the security interest granted in connection with the Exchange Notes. The foregoing descriptions of the U.S. Security Agreement and the Israeli Security Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of such documents, filed hereto as Exhibit 10.1 and Exhibit 10.2, respectively, and incorporated herein by reference.

The issuance of the Exchange Notes was made in reliance on the exemption from the registration requirements of the Securities Act of 1933 (the “Securities Act”) pursuant to Section 3(a)(9) thereof.

On August 26, 2021, the Company issued a press release announcing the closing of the Exchanges and certain terms and conditions thereof. A copy of the press release is filed herewith as Exhibit 99.1 and is incorporated by reference into this Current Report on Form 8-K.

The offer and sale of the Exchange Notes and the shares of Common Stock issuable upon conversion of the Exchange Notes, if any, was not registered under the Securities Act or any state securities laws, and unless so registered, the Exchange Notes and such shares may not be offered or sold in the United States except pursuant to an exemption from the registration requirements of the Securities Act and applicable state laws.

Item 2.03         Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant

The information set forth under Item 1.01 of this Current Report is incorporated herein by reference.

Item 3.02         Unregistered Sale of Equity Securities

The information set forth under Item 1.01 of this Current Report is incorporated herein by reference.

Item 9.01         Financial Statements and Exhibits

Exhibit No.

 

Description

4.1

Third Supplemental Indenture, dated as of August 24, 2021, by and among Protalix BioTherapeutics, Inc., the guarantors party hereto and The Bank of New York Mellon Trust Company, N.A., as trustee, registrar, paying agent and conversion agent, and Wilmington Savings Fund Society, FSB, as the collateral agent

4.2

 

Indenture, dated as of August 24, 2021, between Protalix BioTherapeutics, Inc., the guarantors party thereto, The Bank of New York Mellon Trust Company, N.A., as trustee and Wilmington Savings Fund Society, FSB, as collateral agent

4.3

Form of Exchange Note

10.1

Amended and Restated U.S. Security Agreement dated of August 24, 2021 among Protalix BioTherapeutics, Inc., the guarantors party thereto, Wilmington Savings Fund Society, FSB, as collateral agent and The Bank of New York Mellon Trust Company, N.A., as Notes Trustee

10.2

2021 Security Agreement/Debenture, made on August 24, 2021 between Protalix Ltd. and Altshuler Shaham Trusts Ltd., as security trustee

99.1

Press Release dated August 26, 2021

104

Cover Page Interactive Data File (embedded within the Inline XBRL document)

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: August 26, 2021

PROTALIX BIOTHERAPEUTICS, INC.

 

 

 

 

 

By:

/s/ Dror Bashan

 

 

Name:

Dror Bashan

 

 

Title:

President and Chief Executive Officer

Exhibit 4.1

Execution Version

THIRD Supplemental Indenture

by and among

PROTALIX BIOTHERAPEUTICS, INC., as Issuer,

AND EACH OF THE GUARANTORS PARTY HERETO,

and

The Bank of New York Mellon Trust CoMPANY, N.A., as Trustee,

and

wilmington savings fund society, fsb, as Collateral Agent

dated as of August 24, 2021

to the Indenture, dated as of December 7, 2016,

as supplemented by the First Supplemental Indenture, dated as of July 24, 2017

and the Second Supplemental Indenture, dated as of November 27, 2017

relating to 7.50% Senior Secured Convertible Notes due 2021


THIRD Supplemental Indenture

THIRD SUPPLEMENTAL INDENTURE, dated as of August 24, 2021 (this “Third Supplemental Indenture”), by and among PROTALIX BIOTHERAPEUTICS, INC., a Delaware corporation (the “Company”), as issuer, the guarantors party hereto (the “Guarantors”), The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), Registrar, Paying Agent and Conversion Agent, and Wilmington Savings Fund Society, FSB, as the collateral agent (the “Collateral Agent”), under an Indenture, dated as of December 7, 2016, by and among the Company, each of the Guarantors party thereto, the Collateral Agent, and the Trustee (the “Base Indenture”), as supplemented by the First Supplemental Indenture, dated July 24, 2017 (the “First Supplemental Indenture”) and the Second Supplemental Indenture, dated November 27, 2017 (the “Second Supplemental Indenture”). All capitalized terms used in this Third Supplemental Indenture and not otherwise defined herein have the meanings given to such terms in the Base Indenture, as amended by the First Supplemental Indenture and the Second Supplemental Indenture (the “Existing Indenture”).

WHEREAS, on December 7, 2016, the Company duly authorized the creation of an issue of $62,686,000 aggregate principal amount of the Company’s 7.50% Senior Secured Convertible Notes due 2021 (the “Notes”) pursuant to the Base Indenture;

WHEREAS, on July 24, 2017, the Company entered into a note purchase agreement relating to the issuance and sale by the Company of Additional Notes in the aggregate principal amount of $10,000,000, and for that purpose, entered into the First Supplemental Indenture;

WHEREAS, on November 27, 2017, the Company entered into the Second Supplemental Indenture to amend Section 10.07 of the Base Indenture to require the Company to reserve, at all times out of its authorized but unissued shares, sufficient shares of common stock to satisfy conversions of the Notes at the initial conversion rate and to satisfy the Make-Whole Obligation assuming Physical Settlement;

WHEREAS, the Company and the Guarantors desire to amend the Existing Indenture to permit the issuance of new 7.50% Senior Secured Convertible Notes due 2024 (the “New Convertible Notes”) in an aggregate principal amount of up to $28,750,000 and related note guarantees with respect thereto, and to provide for certain other amendments to the Existing Indenture as set forth herein (the “Proposed Amendments”);

WHEREAS, Section 9.02 of the Existing Indenture provides that, with the written consent of the Holders of at least a majority of the aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a repurchase of, or tender offer or exchange offer for, Notes), by Act of such Holders delivered to the Company, the Collateral Agent, the Trustee, the Company and the Guarantors (each when authorized by a Board Resolution), the Trustee and the Collateral Agent may amend or supplement (or waive compliance with any provision of) the Existing Indenture, the Notes or the Note Guarantees and the relevant parties to the Security Documents may amend (or waive compliance with any provision of) such Security Documents (subject to certain exceptions not applicable to this Third Supplemental Indenture); provided that, any amendment to, or waiver of, the provisions of the Existing Indenture, the Notes, the Note


Guarantees or any Security Document that has the effect of releasing all or substantially all of the Collateral from the Note Liens or any changes in the provisions of the Existing Indenture or any material change in the provisions in the Security Documents, in each case dealing with the application of proceeds of Collateral upon exercise of remedies with respect to such Collateral that adversely affects the Holders, shall require the consent of the Holders of at least 66 and 2/3% in aggregate principal amount of the Notes then outstanding under the Existing Indenture;

WHEREAS, the Company has solicited consents to the Proposed Amendments and to the execution of this Third Supplemental Indenture, from the Holders of the outstanding Notes, upon the terms and subject to the conditions set forth in its Consent Solicitation Statement dated August 17, 2021;

WHEREAS, in accordance with Section 9.02 of the Base Indenture, the Company has now obtained the requisite consents to the Proposed Amendments and to the execution of this Third Supplemental Indenture from the Holders constituting not less than 66 and 2/3% of the aggregate principal amount of the Notes outstanding;

WHEREAS, each of the Trustee and the Collateral Agent is authorized to execute and deliver this Third Supplemental Indenture;

 

WHEREAS, the Company and the Guarantors have requested and hereby request that the Trustee and the Collateral Agent join with the Company and the Guarantors in the execution and delivery of this Third Supplemental Indenture and the Company and the Guarantors have provided the Trustee and the Collateral Agent with (a) Board Resolutions authorizing the execution of and approving this Third Supplemental Indenture, (b) evidence of the consent of the Holders of at least 66 and 2/3% of the aggregate principal amount of the Notes outstanding to the Proposed Amendments and the execution and delivery of this Third Supplemental Indenture and (c) an Officers’ Certificate and an Opinion of Counsel each stating that this Third Supplemental Indenture is authorized and permitted under the Existing Indenture and the other Note Documents; and

WHEREAS, all requirements necessary to make this Third Supplemental Indenture a valid instrument in accordance with its terms have been performed, and the execution and delivery of this Third Supplemental Indenture has been duly authorized in all respects.

 

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the Guarantors, the Trustee and the Collateral Agent mutually covenant and agree as follows:

SECTION 1.1Amendments to the Existing Indenture.
(a)Amendments to Section 1.01 to Add New Defined Terms. Section 1.01 of the Existing Indenture is hereby amended by adding the new defined terms set forth below in the correct alphabetical order:

New Convertible Notes” means the 7.50% Convertible Senior Notes due 2024, to be issued by the Company in an aggregate principal amount of up to $28,750,000,

2


pursuant to the terms of the New Convertible Notes Indenture and in accordance with the New Exchange Agreements.

New Convertible Notes Event of Default” means an “Event of Default” as defined in Section 6.01(a) of and occurring under, the New Convertible Notes Indenture, after giving effect to any applicable grace or cure periods described therein.

New Convertible Notes Indenture” means the indenture governing the New Convertible Notes, as amended or supplemented from time to time in accordance with the terms thereof.

“New Convertible Notes Trustee” means the trustee of the New Convertible Notes under the New Convertible Notes Indenture.

New Exchange Agreements” means those certain exchange agreements, dated as of August 12, 2021, between the Company and the purchasers party thereto.

(b)Amendment to “Permitted Liens” definition in Section 1.01. Clause (8) of the definition of “Permitted Liens” in Section 1.01 of the Existing Indenture is hereby amended and restated as follows:

“(8) Liens securing the New Convertible Notes and related note guarantees with respect thereto, provided that the Notes and related Note Guarantees are secured equally, ratably and pari passu with such Liens;”

(c)Amendment to “U.S. Security Agreement” definition in Section 1.01. The term “U.S. Security Agreement” in Section 1.01 is hereby amended and restated as follows:

““U.S. Security Agreement” means the Amended and Restated U.S. Security Agreement dated as of the issue date of the New Convertible Notes, among the Company, the Guarantors party thereto, the Trustee, the New Convertible Notes Trustee and the Collateral Agent.”

(d)Amendment to “Israeli Security Agreements” definition in Section 1.01. The term “Israeli Security Agreements” in Section 1.01 is hereby amended and restated as follows:

““Israeli Security Agreements” means the Israeli Fixed Charge, the Israeli Floating Charge and the Israeli Stock Pledge, as amended, amended and restated or supplemented from time to time.”

(e)Amendment to Section 4.13.
(1)Clause (xiv) of Section 4.13(b) of the Existing Indenture is hereby amended by deleting the word “or” appearing at the end thereof.
(2)Clause (xv) of Section 4.13(b) of the Existing Indenture is hereby amended by deleting the period appearing at the end thereof (“.”) and replacing the same with a semi-colon and the word “or” (“; or”).

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(3)Section 4.13(b) of the Existing Indenture is hereby amended by adding a new Clause (xvi) as set forth below:

“(xvi) the incurrence by the Company or any of its Restricted Subsidiaries or Guarantors of Indebtedness represented by the New Convertible Notes and related note guarantees with respect thereto.”

(4)Section 4.13(c) of the Existing Indenture is hereby amended by deleting Clause “(xv)” therein and replacing the same with Clause “(xvi)”.
(f)Amendments to Section 6.01.
(1)Clause (F) of Section 6.01(a)(xiii) of the Existing Indenture is hereby amended by deleting the word “or” appearing at the end thereof.
(2)Clause (D) of Section 6.01(a)(xiv) of the Existing Indenture is hereby amended by deleting the period appearing at the end thereof (“.”) and replacing the same with a semi-colon and the word “or” (“; or”).
(3)Section 6.01(a) of the Existing Indenture is hereby amended by adding a new Clause (xv) as set forth below:

“(xv) a New Convertible Notes Event of Default.”

(g)Amendment to Section 6.11. Section 6.11 of the Existing Indenture is amended by replacing the word “If” found at the beginning of the first sentence therein with the following:

“Subject to the terms of the U.S. Security Agreement, if ”

(h)Amendment to Section 7.06. The fifth sentence of Section 7.06(a) of the Existing Indenture is hereby amended and restated to read as follows”

“Each of the Company and the Guarantors, jointly and severally will fully indemnify the Trustee against any and all loss, liability, claim, damage or expense (including reasonable attorneys’ fees and expenses) incurred by it in connection with the acceptance and administration of this trust, the performance of its duties and/or the exercise of its rights hereunder and under any Note Document, including the costs and expenses of defending itself against any claim (whether asserted by the Company, any Holder or any other Person)”

(i)Amendment to Section 9.01.

(1)Section 9.01(n) of the Existing Indenture is amended by replacing the words “In addition” found at the beginning of the second sentence therein to read as follows:

“In addition, the Trustee,”

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(2)The last paragraph of Section 9.01, appearing after Section 9.01(n), of the Existing Indenture is hereby amended and restated to read as follows:

“If any amendment to, or waiver of, the provisions of this Indenture, the Notes, the Note Guarantees, any Security Document to which it is a party or any other Note Document affects the rights or obligations of the Trustee, the Collateral Agent or the Israeli Trustee, as applicable, then in such case the consent of the Trustee, the Collateral Agent or the Israeli Trustee, as applicable, shall also be required.

(j)Amendment to Section 9.02. The last sentence of the penultimate paragraph of Section 9.02, appearing under Section 9.02(k), of the Existing Indenture is hereby and restated to read as follows:

“If any amendment, to, or waiver of, the provisions of this Indenture, the Notes, the Note Guarantees, any Security Document or any other Note Document to which it is a party affects the rights or obligations of the Trustee, the Collateral Agent or the Israeli Security Trustee, as applicable, then in such case the consent of the Trustee, the Collateral Agent or the Israeli Security Trustee, as applicable, shall also be required.”

(k)Amendment to Section 9.03. Section 9.03 of the Existing Indenture is hereby amended and restated to read as follows:

“Section 9.03. Execution of Supplemental Indentures. Upon the request of the Company, the Trustee and, if applicable, the Collateral Agent, will sign any supplemental indenture or amendment to any Note Document authorized pursuant to this Article 9 if the amendment contained therein does not affect the rights, duties, liabilities or immunities of the Trustee or the Collateral Agent under this Indenture or any other Note Document. If the supplemental indenture or amendment to any Note Document, as applicable, adversely affects the Trustee’s or the Collateral Agent’s rights, duties, liabilities or immunities under this Indenture or such Note Document, as applicable, then the Trustee may, but need not, sign such supplemental indenture or amendment to any other Note Document, as applicable, and the consent of the Trustee or the Collateral Agent, as applicable, shall be required for any such amendment that adversely affects its rights, duties, liabilities or immunities. In executing any such supplemental indenture or amendment to any other Note Documents, as applicable, the Trustee and, to the extent applicable, the Collateral Agent will each be provided with, and, subject to the provisions of Section 7.01 hereof, will be fully protected in conclusively relying upon, an Officers’ Certificate and an Opinion of Counsel stating that such supplemental indenture or amendment to any other Note Document, as applicable, is authorized and permitted under this Indenture and the other Note Documents.”

(l)Amendment to Section 14.01.

5


(1)Section 14.01(a) of the Existing Indenture is hereby amended by amending and restating the language found in the parenthesis appearing at the end of the last sentence thereof to read as follows:

“(and, to the extent applicable, the Trustee and/or the Israeli Security Trustee, as applicable)”

(2) Clause (c) of Section 14.01 of the Existing Indenture is hereby amended and restated to read as follows:

“(c) Within 30 days of the effective date of the U.S. Security Agreement, the Company and the Guarantors shall, to the extent possible after using commercially reasonable efforts, enter into and deliver a Deposit Account Control Agreement (as defined in the U.S. Security Agreement) or other appropriate arrangement, in each case, satisfactory to the Collateral Agent, to perfect the Lien in each Deposit Account (other than any Excluded Deposit Account (as defined in the U.S. Security Agreement)).”

(3)Section 14.01 of the Existing Indenture is hereby amended by adding a new Clause (g) as set forth below:

“(g) Notwithstanding anything contained in this Indenture to the contrary, in the event of any conflict between the terms and conditions of the U.S. Security Agreement, on the one hand, and this Indenture, on the other hand, the terms and conditions of the U.S. Security Agreement shall govern, including, without limitation, with respect to the Collateral and when the Collateral Agent is authorized to take or refrain from taking action under this Indenture and the Security Documents.”

(m)Amendments to Section 14.02.
(1)Clause (e) of Section 14.02 of the Existing Indenture is hereby amended and restated to read as follows:

“(e) Each of the Collateral Agent and the Israeli Security Trustee shall have no duty to act, consent or request any action of any Person unless the Collateral Agent or the Israeli Security Trustee, as applicable, shall have received written direction in accordance with the terms of the applicable Security Agreement. The Israeli Security Trustee shall be entitled to act upon the direction of the Trustee (acting solely pursuant to the instructions of a majority in aggregate principal amount of outstanding Notes) to the extent otherwise permitted by this Indenture.”

(2)Clause (h) of Section 14.02 of the Existing Indenture is hereby amended and restated to read as follows:

“(h) For purposes of determining whether the Holders of the requisite aggregate principal amount of outstanding Notes have given or concurred in any

6


request, demand, authorization, direction, notice, consent, waiver or other action hereunder, the Collateral Agent shall be entitled to conclusively rely on the Trustee’s or the Company’s (or their respective agent’s) written certification as to (i) the Holders of the aggregate principal amount of outstanding Notes that have actually given or concurred in any request, demand, authorization, direction, notice, consent, waiver or other action hereunder, and (ii) the aggregate principal amount of Notes outstanding under this Indenture, and shall have no obligation or liability with respect to any such information. In the absence of any such written certification, the Collateral Agent may assume that no Holder has given or concurred in any such request, demand, authorization, direction, notice, consent, waiver or other action hereunder.”

(3)Clause (m) of Section 14.02 of the Existing Indenture is hereby amended to add the words “or under any Note Document” after the word “hereunder”.
(n)Amendments to Section 14.03.

(1) Clause (i) of Section 14.03(a) of the Existing Indenture is hereby amended and restated to read as follows:

“(i) consents and agrees to the terms of each Security Document, as originally in effect and as amended, supplemented or replaced from time to time in accordance with its terms or the terms of this Indenture (including, without limitation, the terms and conditions upon which the Holders shall share in the Collateral with the secured parties under the New Convertible Notes Indenture set forth in, and subject to, the U.S. Security Agreement),”

(2)Clause (ii) of Section 14.03(a) of the Existing Indenture is hereby amended and restated to read as follows:

“(ii) authorizes and directs each of the Trustee, the Collateral Agent and the Israeli Security Trustee to enter into the Security Documents (including any amendment or restatement of any Security Documents authorized or permitted by this Indenture) to which it is a party,”

(3)Clause (iii) of Section 14.03(a) of the Existing Indenture is hereby amended and restated to read as follows:

“(iii) authorizes and empowers each of the Trustee, the Collateral Agent and the Israeli Security Trustee to bind the Holders of Notes as set forth in the Security Documents to which it is a party and to perform its obligations and exercise its rights and powers thereunder,”

(4)Section 14.03(b) of the Existing Indenture is hereby amended by adding the following at the end thereof:

“, subject to the terms of the U.S. Security Agreement.”

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(o)Amendment to Section 14.04.

(1) The first paragraph of Section 14.04(a) of the Existing Indenture is hereby amended and restated to read as follows:

“Solely with respect to the Notes and the Obligations under this Indenture, the Collateral shall be released upon termination of the Company’s Obligations in accordance with Section 14.10. In addition, solely with respect to the Notes and the Obligations under this Indenture, the Company and the Guarantors will be entitled to the release of assets included in the Collateral from the Note Liens, and the Trustee, the Collateral Agent and the Israeli Security Trustee, as applicable, shall release the same from such Liens at the Company’s sole cost and expense, under any one or more of the following circumstances without the need for any further action (other than as provided for by Section 14.04(b)) by any Person:”

(2)The first sentence of Section 14.04(b) of the Existing Indenture is hereby amended and restated to read as follows:

“With respect to any release of Collateral in respect of the Notes and the Obligations under this Indenture, the Trustee shall only direct the Collateral Agent and Israeli Security Trustee to release assets included in the Collateral from the Note Liens pursuant to Section 14.04(a), upon the Trustee’s and the Collateral Agent’s receipt of an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture and the Security Documents to such release and the execution of such documents requested by the Company in connection therewith have been met and that such release and the execution of such documents requested by the Company in connection therewith are authorized or permitted by the Indenture and the other Note Documents.

(p)Amendment to Section 14.07. Section 14.07 is hereby amended and restated to read as follows:

“Section 14.07. Voting.

In connection with any matter under the U.S. Security Agreement requiring a vote of holders of Secured Obligations (as defined in the U.S. Security Agreement), the holders of such Secured Obligations shall be treated as a single class and the Holders of Notes shall cast their votes in accordance with this Indenture. The amount of the Notes to be voted by the Holders will equal the aggregate outstanding principal amount of the Notes. Following and in accordance with the outcome of the applicable vote under this Indenture, the Trustee shall vote the total amount of the Notes as a block in respect of any vote submitted to the Holders of the Notes under the U.S. Security Agreement, as directed by the Holders in writing.”

(q)Amendments to Section 14.08.

8


(1)Clause (a) of Section 14.08 of the Existing Indenture is hereby amended and restated to read as follows:

“(a) Wilmington Savings Fund Society, FSB (WSFS) is hereby designated and appointed as the Collateral Agent of the Holders under the Security Documents (including any amendment or restatement of any Security Documents (authorized or permitted by this Indenture)), and is authorized as the Collateral Agent for such Holders to execute and enter into each of the Security Documents and all other instruments relating to the Security Documents and (i) to take action and exercise such powers and remedies as are expressly required or permitted hereunder and under the Security Documents and all instruments relating hereto and thereto and (ii) to exercise such powers and perform such duties as are, in each case, expressly delegated to the Collateral Agent by the terms hereof and thereof, together with such other powers as are reasonably incidental hereto and thereto.”

(2)Section 14.08 of the Existing Indenture is hereby amended by adding the following paragraph at the end thereof:

“Each of the Company and the Guarantors and each Holder by the acceptance of its Note hereby acknowledges and agrees that, in addition to its appointment as collateral agent herein, the Collateral Agent has been appointed as collateral agent under the New Convertible Notes Indenture and waives any purported conflict in connection with such appointment.”

(r)Amendment to Section 14.10. Section 14.10 of the Existing Indenture is hereby amended and restated to read as follows:

“Section 14.10 Release Upon Termination of the Company’s Obligations.

In the event that the Company delivers to the Trustee and the Collateral Agent, in form and substance acceptable to it, an Officers’ Certificate and Opinion of Counsel certifying that all the obligations under this Indenture, the Notes and the Security Documents have been satisfied and discharged by the payment in full of the Company’s Obligations under the Notes, this Indenture and the Security Documents, and all such obligations have been so satisfied, the Trustee shall deliver to the Company and the Collateral Agent a notice stating that the Trustee, on behalf of the Holders, disclaims and gives up any and all rights it has in or to the Collateral, and any rights it has under the Security Documents, and upon receipt by the Collateral Agent of such notice, the Lien held by the Collateral Agent for the benefit of the Trustee and the Holders of Notes shall be deemed released and the Collateral Agent shall (at the sole cost of the Company) do or cause to be done all acts reasonably requested by the Company to release such Lien in respect of the Trustee and the Holders of Notes.”

(s)Amendments to Section 14.11. Section 14.11(a) of the Existing Indenture is hereby amended and restated to read as follows:

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“Section 4.11. Replacement of Collateral Agent. The Collateral Agent may resign or be removed, and a successor Collateral Agent appointed, pursuant to the terms of the U.S. Security Agreement. Notwithstanding the replacement of the Collateral Agent, the Company’s payment obligations, including with respect to indemnification obligations, to the Collateral Agent under the Note Documents will continue for the benefit of the retiring Collateral Agent.”

(t)Amendments to Section 14.13.

(1) The fourth sentence of Section 14.13 is hereby amended and restated to read as follows:

“The Trustee shall not be required to make any determination (i) with respect to the Collateral or (ii) as to what rights the Holders may have under this Indenture, the Security Documents or any other document in respect of the Collateral and the Trustee’s sole obligation in respect of the Collateral shall be limited to (x) execution of the U.S. Security Agreement on behalf of and at the direction of the Holders of the Notes and (y) the delivery of instructions to the Collateral Agent and the Israeli Security Trustee upon written request of the Holders of the requisite percentage of outstanding Notes as required by this Indenture.”

(2)The last sentence of Section 14.13 is hereby amended by adding the following at the end thereof:

“, subject to the terms of the U.S. Security Agreement.”

(u)Amendment to Section 15.08. Section 15.08 of the Existing Indenture is hereby amended and restated to read as follows:

“Section 15.08. Force Majeure. The Trustee, Registrar, Paying Agent and Conversion Agent will not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder or under any Note Document by reason of any occurrence beyond the control of such Person (including, but not limited to, any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility)”.

SECTION 1.2Ratification of Indenture.

This Third Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Existing Indenture and, as provided in the Existing Indenture, this Third Supplemental Indenture forms a part thereof. In the case of a conflict between the Existing Indenture and this Third Supplemental Indenture, the provisions of this Third Supplemental Indenture shall control. Each reference in the Existing Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein,” and each reference in the Notes to “the Indenture,” “thereunder,” “thereof,” or “therein” shall mean and be a reference to the Existing Indenture as

10


amended and supplemented by this Third Supplemental Indenture unless the context otherwise requires. The Existing Indenture as amended and supplemented by this Third Supplemental Indenture (hereinafter, the “Indenture”) shall be read, taken and construed as one and the same instrument, and every Holder of the Notes heretofore or hereafter authenticated and delivered under the Existing Indenture as supplemented by this Third Supplemental Indenture shall be bound thereby.

SECTION 1.3Governing Law; Submission to Jurisdiction.

This Third Supplemental Indenture shall be governed by and subject to the provisions set forth in Section 15.07 and Section 15.09 of the Existing Indenture.

 

SECTION 1.4Separability.

In case any one or more of the provisions contained in this Third Supplemental Indenture or in the Notes shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Third Supplemental Indenture or of the Notes, but this Third Supplemental Indenture and the Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.

SECTION 1.5Counterparts.

The parties hereto may sign any number of copies of this Third Supplemental Indenture. One signed copy is enough to prove this Third Supplemental Indenture. This Third Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be an original, but all of them together represent the same agreement. The words “execution,” “signed,” “signature,” and words of like import in this Third Supplemental Indenture shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

SECTION 1.6Effect of Headings.

The Section headings in this Third Supplemental Indenture are for convenience only and shall not affect the construction hereof.

SECTION 1.7Trustee and Collateral Agent Matters.

Each of the Trustee and the Collateral Agent shall not be responsible in any manner whatsoever for or in respect of, and each of the Trustee and the Collateral Agent makes no

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representations with respect to, (a) the validity or sufficiency of this Third Supplemental Indenture, (b) the proper authorization hereof by the other parties hereto by corporate action or otherwise, (c) the due execution hereof by any other party hereto, (d) the consequences (direct or indirect and whether deliberate or inadvertent) of the amendments provided for herein, (e) the form or substance of this Third Supplemental Indenture, or (f) the recitals contained herein, all of which recitals are made solely by the Company and the Guarantors. All of the provisions contained in the Existing Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee and the Collateral Agent shall be applicable in respect of this Third Supplemental Indenture as fully and with like effect as if set forth herein in full.  Each of the Company and the Guarantors hereby reaffirms its obligations under Section 7.06 of the Existing Indenture to indemnify the Trustee against any costs, charges, liabilities, or expenses incurred by it in connection with its execution and performance of this Third Supplemental Indenture and the Note Documents.  This indemnity shall survive the termination of the Indenture and/or any Note Document and the resignation or removal of the Trustee.

SECTION 1.8TIA Controls.

If any provision of this Third Supplemental Indenture limits, qualifies or conflicts with another provision which is required to be included in this Third Supplemental Indenture by the TIA, the provision required by the TIA shall control.

SECTION 1.9Execution of Amended and Restated Security Agreement.

(a)Each of the Collateral Agent and the Trustee is hereby authorized and instructed to execute and enter into the Amended and Restated Security Agreement (the “Amended and Restated Security Agreement”), by and among the Company, the Guarantors, the Trustee, the New Convertible Notes Trustee, and the Collateral Agent and any other Security Documents or amendments or restatements of any Security Documents, which will (i) allow the Collateral to also secure the New Convertible Notes and other obligations under the New Convertible Notes Indenture, and (ii) govern the respective rights of the Secured Parties under the Existing Indenture and the secured parties under the New Convertible Notes Indenture.

(b)The Israeli Security Trustee is hereby authorized and instructed to execute and enter into new Israeli security agreements, and any other Security Documents or amendments or restatements of any Security Documents, which will secure the obligations of the Company and the Guarantors under the New Convertible Notes and the New Convertible Notes Indenture in favor of the New Convertible Notes Trustee and the holders of the New Convertible Notes.  

[Signature Page Follows]

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IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed by their authorized respective officers as of the day and year first above written.

/s/ Eyal Rubin​ ​​ ​​ ​​ ​
Name: Eyal Rubin
Title: Senior Vice President & Chief
Financial Officer

/s/ Dror Bashan​ ​
Name: Dror Bashan
Title: President & Chief Executive Officer

Date: August 24, 2021

PROTALIX BIOTHERAPEUTICS, INC., as Issuer

By: /s/ Eyal Rubin​ ​​ ​​ ​​ ​
Name: Eyal Rubin
Title: Senior Vice President & Chief
Financial Officer

By: /s/ Dror Bashan​ ​
Name: Dror Bashan
Title: President & Chief Executive Officer

Date: August 24, 2021

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee


By:  /s/ Shannon Matthews​ ​

Name: Shannon Matthews
Title: Vice President

/s/ Eyal Rubin​ ​
Name: Eyal Rubin
Title: Senior Vice President & Chief
Financial Officer

PROTALIX LTD., as Guarantor

By: /s/ Eyal Rubin​ ​
Name: Eyal Rubin
Title: Senior Vice President & Chief
Financial Officer

PROTALIX B.V., as Guarantor


By: /s/ Dror Bashan​ ​
Name: Dror Bashan
Title: Managing Director

 

[Signature Page to Third Supplemental Indenture]


IN WITNESS WHEREOF, the undersigned, being duly authorized, has executed this Third Supplemental Indenture as of the day and year first before written.

 

Wilmington Savings Fund Society, FSB, as Collateral Agent

 

By:

/s/ John McNichol

 

Name: John McNichol

 

Title: Trust Officer

 

[Signature Page to Third Supplemental Indenture]


Exhibit 4.2

Execution Version

PROTALIX BIOTHERAPEUTICS, INC.

AS ISSUER

AND EACH OF THE GUARANTORS PARTY HERETO

7.50% SENIOR SECURED CONVERTIBLE NOTES DUE 2024

INDENTURE

DATED AS OF AUGUST 24, 2021

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

AS TRUSTEE

WILMINGTON SAVINGS FUND SOCIETY, FSB

AS COLLATERAL AGENT


Table of Contents

Article 1 DEFINITIONS AND INCORPORATION BY REFERENCE1

Section 1.01. Definitions.1

Section 1.02. Other Definitions.37

Section 1.03. Rules of Construction.39

Section 1.04. Acts of Holders.40

Article 2 THE NOTES41

Section 2.01. Designation, Amount and Issuance of Notes.41

Section 2.02. Form of Notes.41

Section 2.03. Denomination of Notes43

Section 2.04. Payments.43

Section 2.05. Execution and Authentication.46

Section 2.06. Registrar, Paying Agent and Conversion Agent.47

Section 2.07. Money and Securities Held in Trust.49

Section 2.08. Holder Lists.49

Section 2.09. Transfer and Exchange.50

Section 2.10. Transfer Restrictions.54

Section 2.11. Replacement Notes.57

Section 2.12. Temporary Notes.57

Section 2.13. Cancellation58

Section 2.14. Outstanding Notes58

Section 2.15. Persons Deemed Owners.58

Section 2.16. Repurchases.59

Section 2.17. CUSIP and ISIN Numbers.59

Section 2.18. Contingent Payment Debt Instrument Status.59

Article 3 REPURCHASE AT THE OPTION OF THE HOLDER59

Section 3.01. Repurchase at Option of Holders Upon a Fundamental Change.59

Section 3.02. Withdrawal of Fundamental Change Repurchase Notice.62

Section 3.03. Deposit of Fundamental Change Repurchase Price.63

Section 3.04. Covenant to Comply with Applicable Laws Upon Repurchase of Notes.64

Article 4 COVENANTS64

Section 4.01. Payment of Notes.64

Section 4.02. 144A Information.64

Section 4.03. Reports.64

Section 4.04. Additional Interest.66

Section 4.05. Compliance Certificate.67

Section 4.06. Restriction on Purchases and Sales by the Company and by Affiliates of the Company.67

Section 4.07. Corporate Existence.68

Section 4.08. Par Value Limitation.68


Section 4.09. Stay, Extension and Usury Laws.68

Section 4.10. Further Instruments and Acts.68

Section 4.11. Restricted Payments.68

Section 4.12. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.73

Section 4.13. Incurrence of Indebtedness and Issuance of Preferred Stock.75

Section 4.14. Asset Sales.80

Section 4.15. Transactions with Affiliates.85

Section 4.16. Liens.86

Section 4.17. Additional Note Guarantees.86

Section 4.18. Designation of Restricted and Unrestricted Subsidiaries.87

Section 4.19. After-Acquired Property.88

Section 4.20. Limitation on Issuance of Equity Interests.89

Section 4.21. Collateral.89

Section 4.22. Conditions Subsequent.89

Section 4.23. Taxes90

Section 4.24. Minimum Liquidity90

Article 5 CONSOLIDATION, MERGER AND SALE OF ASSETS90

Section 5.01. Company May Consolidate, Merge or Sell Its Assets Only on Certain Terms.90

Section 5.02. Successor Substituted.91

Article 6 DEFAULTS AND REMEDIES91

Section 6.01. Events of Default.91

Section 6.02. Acceleration.95

Section 6.03. Other Remedies.96

Section 6.04. [Reserved].96

Section 6.05. Waiver of Past Defaults.96

Section 6.06. Control by Majority.97

Section 6.07. Limitation on Suits.97

Section 6.08. Rights of Holders to Receive Payment.98

Section 6.09. Collection Suit by Trustee.98

Section 6.10. Trustee and the Collateral Agent May File Proofs of Claim.98

Section 6.11. Priorities.99

Section 6.12. Undertaking for Costs.99

Article 7 TRUSTEE99

Section 7.01. Duties of Trustee.99

Section 7.02. Rights of Trustee.101

Section 7.03. Individual Rights of Trustee.103

Section 7.04. Trustee’s Disclaimer.103

Section 7.05. Notice of Defaults.103

Section 7.06. Compensation and Indemnity.103

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Section 7.07. Replacement of Trustee.104

Section 7.08. Successor Trustee by Merger.105

Section 7.09. Eligibility; Disqualification.106

Section 7.10. Trustee’s Application for Instructions from the Company.106

Article 8 SATISFACTION AND DISCHARGE106

Section 8.01. Discharge of Liability on Notes.106

Section 8.02. Repayment to the Company.107

Article 9 AMENDMENTS, SUPPLEMENTS AND WAIVERS107

Section 9.01. Without Consent of Holders.107

Section 9.02. With Consent of Holders.108

Section 9.03. Execution of Supplemental Indentures.110

Section 9.04. Notices of Supplemental Indentures or Security Documents.110

Section 9.05. Effect of Supplemental Indentures.110

Section 9.06. Revocation and Effect of Consents, Waivers and Actions.111

Section 9.07. Notation on, or Exchange of, Notes.111

Article 10 CONVERSIONS111

Section 10.01. Conversion Privilege.111

Section 10.02. Conversion Procedure; Settlement Upon Conversion.112

Section 10.03. Make-Whole Premium upon Conversion.116

Section 10.04. Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Adjustment Events.118

Section 10.05. Adjustment of Conversion Rate.120

Section 10.06. Adjustments of Prices.130

Section 10.07. Shares to Be Fully Paid.130

Section 10.08. Effect of Recapitalizations, Reclassifications and Changes of the Common Stock.130

Section 10.09. Certain Covenants.132

Section 10.10. Responsibility of Trustee.133

Section 10.11. Notice to Holders Prior to Certain Actions.134

Section 10.12. Stockholder Rights Plans.135

Section 10.13. Certain Limitations on Settlement.135

Article 11 REDEMPTION AT THE OPTION OF THE COMPANY136

Section 11.01. Optional Redemption.136

Section 11.02. Notice of Optional Redemption; Selection of Notes.136

Section 11.03. Payment of Notes Called for Redemption.138

Section 11.04. Restrictions on Redemption.138

Section 11.05. Return of Notes.138

Section 11.06. Repayment to the Company.138

Article 12 NOTE GUARANTEES139

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Section 12.01. Note Guarantees.139

Section 12.02. Limitation on Guarantor Liability.141

Section 12.03. Execution and Delivery of Note Guarantee.141

Section 12.04. Guarantors May Consolidate, etc., on Certain Terms.141

Section 12.05. Releases.143

Article 13 [Reserved]144

Article 14 COLLATERAL144

Section 14.01. Security Documents.144

Section 14.02. Collateral Agent and Israeli Security Trustee.145

Section 14.03. Authorization of Actions to Be Taken.149

Section 14.04. Release of Collateral.149

Section 14.05. Use of Collateral; Compliance with Section 314(d) of the TIA.151

Section 14.06. Powers Exercisable by Receiver or Trustee.152

Section 14.07. Voting.152

Section 14.08. Appointment and Authorization of Wilmington Savings Fund Society, FSB as Collateral Agent.152

Section 14.09. Recordings and Opinions.153

Section 14.10. Release Upon Termination of the Company’s Obligations.153

Section 14.11. Replacement of Collateral Agent.154

Section 14.12. Successor Collateral Agent by Merger.154

Section 14.13. The Trustee.154

Article 15 MISCELLANEOUS155

Section 15.01. [Reserved].155

Section 15.02. Notices.155

Section 15.03. Certificate and Opinion as to Conditions Precedent.157

Section 15.04. Statements Required in Certificate or Opinion.157

Section 15.05. Separability Clause.158

Section 15.06. Rules by Trustee.158

Section 15.07. Governing Law and Waiver of Jury Trial.158

Section 15.08. Force Majeure.158

Section 15.09. Submission to Jurisdiction.158

Section 15.10. Legal Holidays.159

Section 15.11. Benefits of Indenture.159

Section 15.12. U.S.A. Patriot Act.159

Section 15.13. Tax Withholding.159

Section 15.14. Tax Matters.159

Section 15.15. Tax Information.159

Section 15.16. Counterparts; Electronic Execution.160

Form of NoteA-1

Form of Transfer CertificateB-1

Form of Restricted Stock LegendC-1

iv


Form of Notation of GuaranteeD-1

Form of Supplemental IndentureE-1

Schedule of Existing IndebtednessSchedule I

v


INDENTURE, dated as of August 24, 2021, among Protalix Biotherapeutics, Inc., a Delaware corporation (“Company”), the Guarantors (as defined below) party hereto and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), registrar, paying agent and conversion agent, and Wilmington Savings Fund Society, FSB (“WSFS”), as the collateral agent (the “Collateral Agent”).

WHEREAS, the Company has duly authorized the creation of an issue of twenty-eight million seven hundred fifty thousand dollars ($28,750,000) aggregate principal amount of the Company’s 7.50% Senior Secured Convertible Notes due 2024; and

WHEREAS, the Company and each of the Guarantors has duly authorized the execution and delivery of this Indenture.

NOW, THEREFORE, each party agrees as follows for the benefit of each of the other parties hereto and for the equal and ratable benefit of the Holders (as defined below) of the Company’s 7.50% Senior Secured Convertible Notes due 2024:

Article 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01.Definitions.

Acquired Debt” means, with respect to any specified Person:

(1)Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming, a Subsidiary of, such specified Person; and
(2)Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

Affiliate” of any specified Person means any other Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such specified Person. The term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. For the avoidance of doubt, the following entities shall not be deemed to be Affiliates of the Company: (i) Pfizer Inc. by virtue solely of its exclusive license and supply agreement with the Company as in existence on the Issue Date; (ii) Chiesi Farmaceutici S.p.A. by virtue solely of its exclusive license and supply agreements with the Company as in existence on the Issue Date; (iii) any entity by virtue solely of having no more than two overlapping directors with the board of directors of the Company; and (iv) any entity by virtue solely of entering into a license, collaboration agreement, strategic alliance or similar arrangement with the Company providing for the licensing of Intellectual Property or the development or commercialization of Intellectual Property.

1


Aggregate Share Cap” means 9,106,774 shares of Common Stock; provided, however, that the Aggregate Share Cap will be subject to proportionate adjustment for stock dividends, stock splits or stock combinations with respect to the Common Stock.

Applicable Procedures” means, with respect to any transfer or transaction involving a Global Note or any beneficial interest therein, the rules and procedures of the Depositary for such Note, in each case to the extent applicable to such transfer or transaction and as in effect from time to time.

Asset Sale” means:

(1)the sale, lease, conveyance or other disposition of any assets or rights (whether in a single transaction or a series of related transactions), provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole will be governed by ‎Article 5; and

(2)the issuance of Equity Interests by any of the Company’s Restricted Subsidiaries or the sale of Equity Interests in any of the Company’s Subsidiaries (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Company or one of its Restricted Subsidiaries).

Notwithstanding anything to the contrary in the preceding paragraph, none of the following items will be deemed to be an Asset Sale:

(1)any single transaction or series of related transactions that involves assets having a Fair Market Value of less than $0.5 million;

(2)a transfer of assets (including, without limitation, Equity Interests) constituting Collateral between or among the Company and the Guarantors;

(3)a transfer of assets that are not Collateral between or among the Company and its Restricted Subsidiaries;

(4)an issuance of Equity Interests by a Restricted Subsidiary of the Company to the Company or to a Restricted Subsidiary of the Company;

(5)any sale or other disposition of damaged, worn-out or obsolete assets or assets otherwise unsuitable or no longer required for use in the ordinary course of the business of the Company and its Restricted Subsidiaries (including the abandonment or other disposition of property that is, in the reasonable judgment of the Company, no longer profitable, economically practicable to maintain or useful in the conduct of the business of the Company and its Restricted Subsidiaries, taken as whole);

(6)a Restricted Payment that does not violate Section 4.11, or a Permitted Investment;

2


(7)the sale, lease, sublease, license, sublicense, consignment, conveyance or other disposition of products, services, inventory and other assets in the ordinary course of business, including leases with respect to facilities that are temporarily not in use or pending their disposition (for the avoidance of doubt, licenses, sublicenses and other dispositions of rights in patents, trademarks, copyrights, know-how or other intellectual property shall be deemed not be in the ordinary course);

(8)a disposition of leasehold improvements or leased assets in connection with the termination of any operating lease;

(9)(x) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements; or (y) the sale or other disposition of Hedging Obligations or other financial instruments in the ordinary course of business;

(10)any foreclosure or any similar action with respect to the property or other assets of the Company or any Restricted Subsidiary;

(11)the sublease or assignment to third parties of leased facilities in the ordinary course of business;

(12)a Casualty or Condemnation Event whose proceeds are subject to application pursuant to ‎Section 4.14;

(13)the creation of or realization on a Lien to the extent that the granting of such Lien was not in violation of ‎Section 4.16;

(14)any surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other claims;

(15)the sale or other disposition of cash or Cash Equivalents;

(16)(i) any non-exclusive, incidental license, collaboration agreement, strategic alliance or similar arrangement providing for the licensing of Intellectual Property or the development or commercialization of Intellectual Property (other than Intellectual Property Licenses, Co-Promotion Arrangements and, for the avoidance of doubt, arrangements that are exclusive with respect to a geographic territory or indication) that, at the time such non-exclusive or incidental license, collaboration agreement, strategic alliance or similar arrangement is entered into, in the judgment of the Company, does not materially and adversely affect the business or condition (financial or otherwise) of the Company and any of its Restricted Subsidiaries, taken as a whole, and (ii) any Intellectual Property Licenses or Co-Promotion Arrangements, so long as any aggregate cash proceeds from such Intellectual Property Licenses and Co-Promotion Arrangements are applied pursuant to ‎Section 4.14; and

(17)to the extent allowable under Section 1031 of the Internal Revenue Code of 1986, as amended, or any successor provision, or any similar provision of any foreign

3


country, any exchange of like property (excluding any boot thereon and excluding any Intellectual Property Sale, Intellectual Property License or Co-Promotion Agreement) for use in a Permitted Business, provided that (i) the aggregate Fair Market Value of the property or assets (including cash and Cash Equivalents) received by the Company and its Restricted Subsidiaries in such exchange is at least equal to the aggregate Fair Market Value of the property or assets disposed of by the Company or such Restricted Subsidiaries in such exchange and (ii) the net cash proceeds received by the Company and its Restricted Subsidiaries in such exchange are treated as Net Proceeds of an Asset Sale pursuant to ‎Section 4.14.

Notwithstanding anything to the contrary in the preceding paragraph, the Company may voluntarily treat any transaction otherwise exempt from the definition of “Asset Sale” pursuant to clauses (1) through (17) above as an “Asset Sale” by designating such transaction as an Asset Sale for purposes of this Indenture in an Officers’ Certificate delivered to the Trustee.

Attributable Debt” in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with U.S. GAAP; provided, however, that if such sale and leaseback transaction results in a Capital Lease Obligation, the amount of Attributable Debt represented thereby will be the amount of liability in respect thereof determined in accordance with the definition of “Capital Lease Obligation.”

Authorized Share Amendment Effective Date” means the date, if at all, that (a) the Company has amended its Amended and Restated Articles of Incorporation to increase the number of authorized shares of Common Stock to an amount that is sufficient, after taking account of all shares of Common Stock reserved or necessary to satisfy the Company’s obligations (other than pursuant to this Indenture and the Notes) to issue shares of Common Stock, to settle the conversion of all then-outstanding Notes (assuming Physical Settlement) at the Conversion Rate then applicable, after giving effect to the maximum number of Additional Shares that may then be added to the Conversion Rate; and (b) the Company has reserved such amount of shares of Common Stock for future issuance pursuant to this Indenture and the Notes.

Bankruptcy Law” means Title 11, United States Code, or any similar U.S. federal, state or non-U.S. law for the relief of debtors.

Beneficial Owner” has the meaning assigned to such term in Rules 13d-3 and 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular person or group, such person or group will be deemed to have beneficial ownership of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time. The terms “Beneficially Own” and “Beneficially Owned” have a corresponding meaning.

4


Board of Directors” means the board of directors of the Company or a committee of such board duly authorized to act for it.

Board Resolution” means a copy of one or more resolutions certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

Business Day” means any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York, Wilmington, Delaware or the place of payment is authorized or required by law or executive order to close or be closed.

Capital Lease Obligation” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet prepared in accordance with U.S. GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease on or prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty.

Capital Stock” means, for any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock issued by that entity.

Capped Combination Settlement” means Combination Settlement with a Cash Amount for each VWAP Trading Day of the relevant Observation Period equal to the Capped Combination Settlement Cash Amount on such VWAP Trading Day.

Capped Combination Settlement Cash Amount” means, on any VWAP Trading Day during the relevant Observation Period, the greater of (x) $1,000 and (y) an amount equal to:

Graphic

where,

DCV=the Daily Conversion Value on such VWAP Trading Day;

DC=the Daily Share Cap on such VWAP Trading Day; and

VWAP=the Daily VWAP on such VWAP Trading Day.

Capped Combination Settlement Release Date” means the first date, if at all, when the Authorized Share Amendment Effective Date has occurred and the NYSE American Stockholder Approval has been obtained.

Cash Equivalents” means:

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(1)any evidence of Indebtedness issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof with a final maturity not exceeding five years from the date of acquisition;
(2)deposits, certificates of deposit or acceptances of any financial institution that is a member of the Federal Reserve System and whose unsecured long term debt is rated at least “A” by Standard & Poor’s Ratings, a division of McGraw Hill Financial, Inc. (“S&P”), or at least “A2” by Moody’s Investors Service, Inc. (“Moody’s”) or any respective successor agency;
(3)commercial paper with a maturity of 365 days or less issued by a corporation (other than an Affiliate of the Company) organized and existing under the laws of the United States of America, any state thereof or the District of Columbia and rated at least “A-1” by S&P and at least “P-1” by Moody’s or any respective successor agency;
(4)repurchase agreements and reverse repurchase agreements relating to marketable direct obligations issued or unconditionally guaranteed by the United States or issued by any agency thereof and backed by the full faith and credit of the United States maturing within 365 days from the date of acquisition;
(5)readily marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within 365 days from the date of acquisition and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s or any respective successor agency;
(6)demand deposits, savings deposits, time deposits and certificates of deposit of any commercial bank having, or which is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof or the District of Columbia having, capital and surplus aggregating in excess of $500,000,000 and a rating of “A” (or such other similar equivalent rating) or higher by at least one “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) with maturities of not more than 365 days from the date of acquisition;

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(7)money market funds which invest substantially all of their assets in securities described in the preceding clauses (1) through (6); and
(8)in the case of a Foreign Subsidiary, instruments equivalent to those referred to in clauses (1) through (7) above denominated in a foreign currency, which are (i) substantially equivalent in tenor, (ii) issued by, or entered into with, foreign persons with credit quality generally accepted by businesses in the jurisdictions in which such Foreign Subsidiary operates and (iii) customarily used by businesses for short-term cash management purposes in any jurisdiction outside of the United States to the extent reasonably required in connection with any business conducted by such Foreign Subsidiary.

Cash Settlement” means (a) with respect to the Conversion Settlement Method applicable to any conversion of Notes, that the Company shall have elected, in accordance with ‎Section 10.02(a), to settle its Conversion Obligation solely in cash in accordance with ‎Section 10.02(a)(iii)(A) and (b) with respect to the Make-Whole Settlement Method applicable to the Make-Whole Premium due upon any conversion of Notes, that the Company shall have elected (or been deemed to have elected), in accordance with ‎Section 10.03(a), to settle its Make-Whole Obligation solely in cash in accordance with ‎Section 10.03(a)(iii)(A).

Casualty or Condemnation Event” means any taking under power of eminent domain or similar proceeding and any insured loss, in each case, relating to property or other assets that constituted Collateral owned by the Company or a Guarantor.

Change in Control” means an event that will be deemed to have occurred at the time, after the first date of original issuance for the Notes, any of the following occurs:

(a)any “person” or “group” within the meaning of Section 13(d) of the Exchange Act is or becomes the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s Common Equity representing 50% or more of the total voting power of the Company’s Common Equity;

(b)the consummation of (x) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination) as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets; (y) any share exchange, consolidation or merger of the Company pursuant to which the Common Stock will be converted into cash, securities or other property; or (z) any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries, taken as a whole, to any Person other than one of the Company’s Subsidiaries; provided, however, that a transaction described in clause (y) above pursuant to which the Persons that “beneficially owned” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, the Company’s Common Equity

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immediately prior to such transaction “beneficially own” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, the Common Equity representing at least a majority of the total voting power of all outstanding classes of the Common Equity of the surviving or transferee person (or its parent) and such holders’ respective proportional voting power immediately after such transaction vis-à-vis each other with respect to the securities they receive in such transaction will be in substantially the same respective proportions as their respective voting power vis-à-vis each other immediately prior to such transaction will not constitute a “Change in Control”; or

(c)the holders of the Company’s Common Equity approve any plan or proposal for the liquidation or dissolution of the Company (whether or not otherwise in compliance with this Indenture);

provided, however, that, notwithstanding the foregoing, a “Change in Control” will not be deemed to have occurred if at least 90% of the consideration paid for the Common Stock in a transaction or transactions described under clause (b) of this definition of “Change in Control” above (excluding cash payments for any fractional shares and cash payments made pursuant to dissenters’ appraisal rights) consists of Publicly Traded Securities, or securities that will be Publicly Traded Securities immediately following such transaction, and as a result thereof, such consideration becomes the Reference Property for the Notes. If any transaction in which the Common Stock is replaced by the securities of another entity occurs, following completion of any related Make-Whole Adjustment Period (or, in the case of a transaction that would have been a Change in Control but for the proviso immediately following clause (c) of the definition thereof, following the effective date of such transaction) references to the Company in this definition shall instead be references to such other entity.

Close of Business” means 5:00 p.m., New York City time.

Co-Promotion Arrangement” means any agreement or arrangement related primarily to the marketing, promoting, distributing, detailing, or commercial selling of, or customer service with respect to, any product (including the Products).

Collateral” means all property subject or purported to be subject, from time to time, to a Lien under any of the Security Documents.

Collateral Agent” means Wilmington Savings Fund, FSB, acting in the capacity of collateral agent, until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, means such successor.

Combination Settlement” means (a) with respect to the Conversion Settlement Method applicable to any conversion of Notes, that the Company shall have elected (or been deemed to have elected), in accordance with ‎Section 10.02(a), to settle its Conversion Obligation in a combination of cash and shares of Common Stock (and cash in lieu of any fractional shares) in accordance with ‎Section 10.02(a)(iii)(C) and (b) with respect to the Make-Whole Settlement Method applicable to the Make-Whole Premium due upon any conversion of Notes, that the Company shall have elected, in accordance

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with ‎Section 10.03(a), to settle its Make-Whole Obligation in a combination of cash and shares of Common Stock (and cash in lieu of any fractional shares) in accordance with ‎Section 10.03(a)(iii)(C).

Common Equity” of any Person means Capital Stock of such Person that is generally entitled (a) to vote in the election of directors of such Person or (b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person.

Common Stock” means the common stock of the Company, par value $0.001 per share, at the date of this Indenture, subject to‎ Section 10.08.

Company” means the party named as such in the first paragraph of this Indenture until a successor or assignee replaces it pursuant to the applicable provisions hereof and, thereafter, means the successor or assignee.

Company Order” means a written request or order signed in the name of the Company by any Officer.

Consolidated Cash Balances” means, at any time, (a) the aggregate amount of cash and Cash Equivalents, in each case, held or owned by (either directly or indirectly), credited to the account of, or that would otherwise be required to be reflected as an asset on the balance sheet of, the Company and its Restricted Subsidiaries less (b) the sum of (i) any restricted cash or Cash Equivalents to pay bona fide licensing obligations, severance taxes, payroll, payroll taxes, other taxes, employee wage and benefit payments and trust and fiduciary obligations or other obligations of the Company or any Restricted Subsidiary to third parties and for which either (x) the Company or such Restricted Subsidiary has issued checks or has initiated wires or ACH transfers (but which amounts have not, as of such time, been subtracted from the balance in the relevant account of the Company or such Restricted Subsidiary) or (y) reasonably anticipates in good faith that it will issue checks or initiate wires or ACH transfers within ten (10) days thereafter, (ii) other amounts permitted to be paid by the Company or any Restricted Subsidiary in accordance with this Indenture and the other Security Documents for which the Company or such Restricted Subsidiary has issued checks or has initiated wires or ACH transfers (but which amounts have not, as of such time, been subtracted from the balance in the relevant account of the Company or such Restricted Subsidiary), (iii) while and to the extent refundable, any cash or Cash Equivalents held by the Company or any Restricted Subsidiary constituting purchase price deposits pursuant to a binding and enforceable purchase and sale agreement with a third party containing customary provisions regarding the payment and refunding of such deposits, and (iv) any cash or Cash Equivalents held by the Company or any Restricted Subsidiary in good faith to fund any customary deposit in the nature of earnest money with respect to, or the purchase price of, any future acquisition permitted under this Indenture.

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Consolidated Cash Flow” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication:

(1)provision for taxes based on income or profits of such Person and its Restricted Subsidiaries and all franchise taxes for such period, to the extent that such amounts were deducted in computing such Consolidated Net Income; plus

(2)the Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the extent that such Fixed Charges were deducted in computing such Consolidated Net Income; plus

(3)depreciation, amortization (including amortization of intangibles, deferred financing fees, debt incurrence costs, commissions, fees and expenses, but excluding amortization of prepaid cash expenses that were paid in a prior period), depletion and other non-cash expenses or charges (including any write-offs of debt issuance or deferred financing costs or fees and impairment charges and the impact on depreciation and amortization of purchase accounting, but excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash expenses or charges were deducted in computing such Consolidated Net Income; plus

(4)the amount of net loss resulting from the payment of any premiums, fees or similar amounts that are required to be paid under the terms of the instrument(s) governing any Indebtedness upon the repayment, prepayment or other extinguishment of such Indebtedness in accordance with the terms of such Indebtedness; plus

(5)(i) unusual or nonrecurring charges, expenses or other items and (ii) charges, expenses or other items in connection with any restructuring, acquisition (including integration costs), disposition, equity issuance or debt incurrence, in all cases whether or not consummated and to the extent deducted in computing such Consolidated Net Income (for the avoidance of doubt, for purposes of this clause (5), charges, expenses or other items shall be deemed to be “unusual” or “non-recurring” if similar charges, expenses or other items have not been incurred in the current fiscal year or the preceding two fiscal and are not reasonably likely to recur within any of the next two fiscal years); plus

(6)any impairment charges or asset write-offs, in each case pursuant to U.S. GAAP, and the amortization of intangibles arising pursuant to U.S. GAAP; minus

(7)non-cash items increasing such Consolidated Net Income for such period (other than the accrual of revenue in the ordinary course of business or any other such non-cash item to the extent that it represents a reduction in an accrual of or reserve for cash charges or expenses in any future period), in each case, on a consolidated basis and determined in accordance with U.S. GAAP.

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Consolidated Net Income” means, with respect to any specified Person for any period, the aggregate of the net income (loss) from continuing operations of such Person and its Restricted Subsidiaries for such period, on a consolidated basis determined in accordance with U.S. GAAP and without any reduction in respect of preferred stock dividends; provided that:

(1)all extraordinary gains and losses and all gains and losses realized in connection with any asset disposition or the disposition of securities or the early extinguishment of Indebtedness or Hedging Obligations, together with any related provision for taxes on any such gain, will be excluded;

(2)the net income of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person (and the net loss of any such Person shall be included only to the extent that such loss is funded in cash by the specified Person or a Restricted Subsidiary thereof);

(3)solely for the purpose of determining the amount available for Restricted Payments under ‎Section 4.11(a), the net income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of its net income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restrictions with respect to the payment of dividends or similar distributions have been legally waived; provided that the Consolidated Net Income of such Person shall be increased by the amount of dividends or other distributions paid in cash (or to the extent converted to cash) by any such Restricted Subsidiary to such Person, to the extent not already included therein;

(4)the cumulative effect of a change in accounting principles, together with any related provision for taxes, will be excluded;

(5)notwithstanding anything to the contrary in clause (2) above, the net income of any Unrestricted Subsidiary will be excluded except for the amount of dividends or other distributions paid in cash by the Unrestricted Subsidiary to such Person or one of its Restricted Subsidiaries;

(6)any non-cash costs or expenses resulting from stock option plans, employee benefit plans, compensation charges or post-employment benefit plans, or grants or awards of stock, stock appreciation or similar rights, stock options, restricted stock, preferred stock or other rights will be excluded;

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(7)any gain or loss for such period from currency translation gains or losses or net gains or losses related to currency re-measurements of Indebtedness will be excluded;

(8)any unrealized net after-tax income (loss) from Hedging Obligations or cash management obligations and the application of Accounting Standards Codification Topic 815 “Derivatives and Hedging” or from other derivative instruments in the ordinary course will be excluded;

(9)any nonrecurring charges relating to any premium or penalty paid, write off of deferred finance costs or other charges in connection with redeeming or retiring any Indebtedness prior to its Stated Maturity will be excluded; and

(10)earn outs, contingent consideration or deferred purchase obligations in connection with the acquisition of a Permitted Business or assets used in a Permitted Business will be excluded.

Conversion Make-Whole Share Price” means, with respect to any conversion, the greater of (a) 130% of the Conversion Price in effect on the applicable Conversion Date, and (b) the average of the Daily VWAPs during the Observation Period for the relevant Conversion Date.

Conversion Price” means as of any time, $1,000, divided by the Conversion Rate as of such time.

Conversion Settlement Date” means, for any conversion of Notes and the Conversion Settlement Method applicable to such conversion, the date on which the Company is required to settle its Conversion Obligation pursuant to ‎Section 10.02(a)(iii).

Corporate Trust Office” means the corporate trust office of the Trustee at which the trust created by this Indenture will be administered, which office, as of the Issue Date, is located at The Bank of New York Mellon Trust Company, N.A., 4655 Salisbury Road, Suite 300, Jacksonville, FL 32256, Attention: Corporate Trust, and may later be located at such other address as the Trustee, upon delivering notice to the Holders, the Paying Agent, the Conversion Agent, the Registrar, the Collateral Agent and the Company, designates.

Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.

Daily Cash Amount” means 5.0% of the applicable Cash Amount.

Daily Conversion Value” means, for each of the 20 consecutive VWAP Trading Days during an Observation Period, 5.0% of the product of (a) the Conversion Rate on such VWAP Trading Day and (b) the Daily VWAP for such VWAP Trading Day.

Daily Settlement Amount” means, for any VWAP Trading Day during the relevant Observation Period, (a) an amount of cash equal to the lesser of (i) the Daily

12


Cash Amount and (ii) the Daily Conversion Value for such VWAP Trading Day; and (b) if the Daily Conversion Value for such VWAP Trading Day exceeds the Daily Cash Amount, a number of shares of Common Stock equal to (i) the difference between such Daily Conversion Value and the Daily Cash Amount, divided by (ii) the Daily VWAP for such VWAP Trading Day.

Daily Share Cap” means an amount, rounded down to the nearest 1/10,000th of a share, equal to:

Graphic

where,

AC=the Aggregate Share Cap; and

N=the aggregate principal amount of Notes issued on the Issue Date.

Daily VWAP” means, for any VWAP Trading Day, the per share volume-weighted average price of the Common Stock as displayed under the heading “Bloomberg VWAP” on Bloomberg page “PLX <equity> AQR” (or any successor thereto) in respect of the period from the scheduled open of trading on the principal trading market for the Common Stock to the scheduled close of trading of the primary trading session on such VWAP Trading Day (or if such volume-weighted average price is not available, the market value of one share of Common Stock on such VWAP Trading Day, as the Company reasonably determines in good faith using a volume-weighted average method). The Daily VWAP will be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.

Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.

Definitive Notes” means Notes that are in registered definitive non-global form.

Depositary” means DTC; provided, that the Company may at any time, upon delivering notice to the Holders, the Company, the Trustee, the Registrar, the Paying Agent and the Conversion Agent, appoint a successor Depositary.

Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the earlier of (x) the date that is 91 days after the date on which the Notes mature and (y) the date that is 91 days after the date no Notes remain outstanding; provided, that only the portion of the Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof

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prior to such date will be deemed to be Disqualified Stock; provided, further, that if such Capital Stock is issued to any employee or to any plan for the benefit of employees of the Company or its Restricted Subsidiaries or by any such plan to such employees, such Capital Stock will not constitute Disqualified Stock solely because it may be required to be repurchased by the Company in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability. Notwithstanding anything to the contrary in the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Company to repurchase or redeem such Capital Stock upon the occurrence of a Fundamental Change or an Asset Sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.11. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Company or any and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory repurchase or redemption provisions of, such Disqualified Stock exclusive of accrued dividends (other than the accretion, accumulation or payment-in-kind of dividends).

DTC” means The Depository Trust Company.

Effective Date” shall have the meaning specified in‎ ‎Section 10.04(c), except that, as used in ‎Section 10.05 and ‎Section 10.06, “Effective Date” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, reflecting the relevant share split or share combination, as applicable.

Effectively Discharged” (or “Effective Discharge”) means, with respect to the Existing Convertible Notes, that (i) the Company shall have irrevocably deposited with the Existing Convertible Notes Trustee, for the benefit of the holders of the Existing Convertible Notes, cash in an amount equal to the sum of all remaining interest and principal payments due on the Existing Convertible Notes (together with all consideration due in respect of each conversion of Existing Convertible Notes that has not been fully settled as of the time of such deposit) and shall have irrevocably directed the Existing Convertible Notes Trustee to make such payments to the holders of the Existing Convertible Notes as the same becomes due in accordance with the Existing Convertible Notes Indenture (provided, however, that such deposit may be subject to arrangements whereby any cash amounts not necessary to pay amounts due on the Existing Convertible Notes as they become due may be returned to the Company after none of the Existing Convertible Notes remain outstanding); and (ii) the Company shall have paid all other amounts due under the Existing Convertible Notes Indenture (provided, however, that the existence of an obligation to compensate and indemnify the Existing Convertible Notes Trustee or the Collateral Agent, in each case, in the ordinary course pursuant to the Existing Convertible Notes Indenture will not cause the Existing Convertible Notes to be deemed not to be Effectively Discharged).

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Equity Interests” means Capital Stock; provided, however, that “Equity Interests” does not include any debt security that is convertible into, or exchangeable for, (a) Capital Stock or (b) Capital Stock and/or cash based on the value of such Capital Stock.

Ex-Dividend Date” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of Common Stock on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.

Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

Exchange Notes” means the $28,750,000 aggregate principal amount of Global Notes issued on the Issue Date and identified on the Issue Date by an unrestricted CUSIP number and not bearing a Restricted Notes Legend.

Excluded Assets” has the meaning assigned to such term in the U.S. Security Agreement.

Excluded Real Property” means any real property owned by the Company or a Guarantor with a Fair Market Value of less than $1.0 million; provided, however, that if, after the Issue Date, the Company or any Guarantor grants a mortgage or deed of trust (or equivalent instrument representing a security interest) in favor of another lender or holder of Indebtedness on any Excluded Real Property, such real property shall cease to be Excluded Real Property for so long as such mortgage or deed of trust remains in place and the Company or any Guarantor, as applicable, shall grant a mortgage or deed of trust over such real property in favor of the Collateral Agent or the Israeli Security Trustee, as applicable, as if such property is subject to ‎Section 4.19 and shall be subject to the requirements of ‎Section 14.01.

Existing Convertible Notes” means the Company’s 7.50% Convertible Senior Notes due 2021 outstanding on the Issue Date, after giving effect to the issuance of the Notes.

Existing Convertible Notes Event of Default” means an “Event of Default” as defined in Section 6.01(a) of and occurring under, the Existing Convertible Notes Indenture, after giving effect to any applicable grace or cure periods described therein.

Existing Convertible Notes Indenture” means that certain indenture, dated as of December 7, 2016, among the Company, the guarantors party thereto, the Existing Convertible Notes Trustee and the Collateral Agent, governing the Existing Convertible Notes, as amended, modified and/or supplemented from time to time.

Existing Convertible Notes Trustee” means The Bank of New York Mellon Trust Company, N.A., as trustee for the Existing Convertible Notes under the Existing Convertible Notes Indenture, until a successor replaces it pursuant to the applicable

15


provisions of the Existing Convertible Notes Indenture and, thereafter, means such successor trustee of the Existing Convertible Notes.

Existing Indebtedness” means all Indebtedness of the Company and its Subsidiaries in existence on the Issue Date as listed on Schedule I hereto, until such amounts are repaid including, without limitation, the Existing Convertible Notes and related note guarantees with respect thereto.

Fair Market Value” means the value that would be paid by a willing buyer or licensor to an unaffiliated willing seller or licensee in a transaction not involving distress or necessity of either party, determined in good faith by (unless otherwise provided in this Indenture) the Board of Directors.

Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness (other than (i) ordinary working capital borrowings and (ii) Indebtedness incurred under any revolving credit facility for ordinary working capital purposes unless such Indebtedness has been permanently repaid and has not been replaced) or issues, repurchases or redeems preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge Coverage Ratio will be calculated after giving pro forma effect, in the good-faith judgment of the Chief Financial Officer of the Company as set forth in a certificate with supporting calculations delivered to the Trustee, to such incurrence, assumption, guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable period.

In addition, for purposes of calculating the Fixed Charge Coverage Ratio:

(1)acquisitions of business entities or property and assets constituting a division or line of business that have been made by the specified Person or any of its Restricted Subsidiaries, including through Investments, mergers or consolidations, or any Person or any of its Restricted Subsidiaries acquired by the specified Person or any of its Restricted Subsidiaries, and including all related financing transactions and including increases in ownership of Restricted Subsidiaries, during the reference period or subsequent to such reference period and on or prior to the Calculation Date, or that are to be made on the Calculation Date, will be given pro forma effect, in the good-faith judgment of the Chief Financial Officer of the Company, as if they had occurred on the first day of the reference period, in accordance with Regulation S-X promulgated under the Exchange Act;

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(2)the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with U.S. GAAP, and operations or businesses (and ownership interests therein) disposed of on or prior to the Calculation Date, will be excluded;

(3)the Fixed Charges attributable to discontinued operations, as determined in accordance with U.S. GAAP, and operations or businesses (and ownership interests therein) disposed of on or prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation Date;

(4)any Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such reference period;

(5)any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such reference period;

(6)if any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging Obligation has a remaining term as of the Calculation Date that exceeds 12 months);

(7)if any Indebtedness is incurred under a revolving credit facility and is being given pro forma effect in such calculation, the interest on such Indebtedness shall be calculated based upon the average daily balance of such Indebtedness during the applicable period except as set forth in the first paragraph of this definition; and

(8)any interest expense attributable to the Existing Convertible Notes will be excluded for any reference period ending on or after the date the Existing Convertible Notes have been Effectively Discharged.

Fixed Charges” means, with respect to any specified Person for any period, the sum, without duplication, of:

(1)the consolidated interest expense of such Person and its Restricted Subsidiaries for such period (with all interest on the Notes to be deemed to be paid in cash), whether paid or accrued, including, without limitation, amortization of original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts, yield and other fees and charges (including interest) incurred in respect of letter of credit or bankers’ acceptance financings, and giving the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates, but excluding the amortization or write-off of debt issuance costs; provided that consolidated interest expense shall be calculated without giving effect to (i) the effects of Accounting Standards Codification Topic 815 “Derivatives and Hedging” and related interpretations to the extent such effects would otherwise increase or decrease consolidated interest

17


expense for any purpose under this Indenture as a result of accounting for any embedded derivatives created by the terms of any Indebtedness and (ii) any original issue discount on the Notes issued on the Issue Date; plus

(2)the product of (a) all dividends, whether paid or accrued and whether or not in cash, on any series of Disqualified Stock of the Company or preferred stock of any of its Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of the Company (other than Disqualified Stock) or to the Company or any of its Restricted Subsidiaries, and (b) a fraction, the numerator of which is one and the denominator of which is one minus the then-current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, determined on a consolidated basis in accordance with U.S. GAAP.

Foreign Subsidiary” means, with respect to any Person, (a) a Subsidiary of such Person that is organized under the laws of a jurisdiction other than the United States or any state thereof or the District of Columbia or (b) any direct or indirect Subsidiary of such Person that is treated as a disregarded entity for United States federal income tax purposes if substantially all of its assets consist of Equity Interests of one or more direct or indirect Subsidiaries of such Person described in clause (a) of this definition.

Form of Notice of Conversion” means the form of “Conversion Notice” attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.

Free Trade Date” means the date that is one year after the relevant Last Original Issue Date; provided, however, that the Free Trade Date for the Exchange Notes will be the Issue Date. The Free Trade Date with respect to any shares of Common Stock issued upon conversion of any Notes or otherwise in respect of any Notes shall be the same as the Free Trade Date of such Notes.

Freely Tradable” means, with respect to any Notes or any shares of the Common Stock issuable upon conversion of the Notes, that such Notes or such shares of Common Stock, as the case may be, (i) are eligible to be offered, sold or otherwise transferred pursuant to Rule 144 or otherwise by a Person that is not an “affiliate” (as defined in Rule 144) of the Company and that has not been an “affiliate” (as defined in Rule 144) of the Company during the immediately preceding three-month period without any volume or manner of sale restrictions under the Securities Act and, (ii) on and after the Free Trade Date, (A) in the case of the Notes, do not bear the Restricted Notes Legend and, in the case of shares of the Common Stock, do not bear the Restricted Stock Legend, and (B) with respect to Global Notes only, are identified by an unrestricted CUSIP number in the facilities of the Depositary.

Fundamental Change” means the occurrence of a Change in Control or a Termination of Trading.

Global Note” means a permanent global note that is in the form of the Note attached hereto as Exhibit A and that is registered in the name of the Depositary or the

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nominee of the Depositary and deposited with the Depositary, the nominee of the Depositary or a custodian appointed by the Depositary or the nominee of the Depositary.

Global Notes Legend” means the legend identified as such in Exhibit A hereto.

The term “guarantee” means a guarantee, other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (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).

Guarantors” means any Restricted Subsidiary of the Company that executes a Note Guarantee in accordance with the provisions of this Indenture, and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture.

Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under:

(1)interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;

(2)other agreements or arrangements designed to manage interest rates or interest rate risk; and

(3)other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.

Holder” or “Holders” means a Person or Persons in whose name a Note is registered in the Register.

Indebtedness” means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent:

(1)in respect of borrowed money;

(2)evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

(3)in respect of banker’s acceptances;

(4)representing Capital Lease Obligations or Attributable Debt in respect of sale and leaseback transactions;

(5)representing the balance deferred and unpaid of the purchase price of any property or services due more than six months after such property is acquired or such

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services are completed, but excluding any accrued liabilities being contested in good faith by appropriate proceedings promptly instituted and diligently conducted; or

(6)representing any Hedging Obligations,

in each case, if and to the extent any of the preceding items would appear as a liability upon a balance sheet (excluding the footnotes) of the specified Person prepared in accordance with U.S. GAAP. In addition, the term “Indebtedness” includes, (i) to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person and (ii) all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) equal to the lesser of (x) the Fair Market Value of such asset as of the date of determination and (y) the amount of such Indebtedness.

Notwithstanding anything to the contrary in the foregoing paragraph, the term “Indebtedness” will not include (a) in connection with the purchase by the Company or any of its Restricted Subsidiaries of any business, post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing unless such payments are required under U.S. GAAP to appear as a liability on the balance sheet (excluding the footnotes); provided, that at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within 30 days thereafter; (b) contingent obligations incurred in the ordinary course of business and not in respect of borrowed money; (c) deferred or prepaid revenues; (d) any Capital Stock other than Disqualified Stock; or (e) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller. Indebtedness shall be calculated without giving effect to the effects of Accounting Standards Codification Topic 815 “Derivatives and Hedging” and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Indenture as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.

Indenture” means this Indenture, as amended or supplemented from time to time in accordance with the terms hereof.

Intellectual Property” means, with respect to any Person, all intellectual property and proprietary rights in any jurisdiction throughout the world, and all corresponding rights, presently or hereafter existing, including: (a) all inventions (whether or not patentable or reduced to practice), all improvements thereto, and all patents, patent applications, industrial designs, industrial design applications, and patent disclosures, together with all reissues, continuations, continuations-in-part, revisions, divisionals, extensions, and reexaminations in connection therewith; (b) all trademarks, trademark applications, tradenames, servicemarks, servicemark applications, trade dress, logos and designs, business names, company names, Internet domain names, and all other indicia of origin, all applications, registrations, and renewals in connection therewith, and all goodwill associated with any of the foregoing; (c) all copyrights and other works of

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authorship, mask works, database rights and moral rights, and all applications, registrations, and renewals in connection therewith; (d) all trade secrets and proprietary knowhow and confidential information (including technical data, customer and supplier lists, manufacturing processes, pricing and cost information, and business and marketing plans and proposals); (e) all software (including source code, executable code, data, databases, and related documentation); and (f) all rights of privacy and publicity, including rights to the use of names, likenesses, images, voices, signatures and biographical information of real persons.

Intellectual Property Licenses” means the licensing, development or commercialization of all or any substantial portion of the Intellectual Property related to the Products pursuant to any license, sub-license, collaboration agreement, strategic alliance or similar arrangement; provided, that Intellectual Property Licenses shall not include any Co-Promotion Arrangement or any license incidental to a Co-Promotion Arrangement.

Intellectual Property Sale” means the sale, conveyance, transfer or other disposition (whether in a single transaction or a series of related transactions), other than, for the avoidance of doubt, pursuant to Intellectual Property Licenses or any Co-Promotion Arrangement, of all or any substantial portion of the Intellectual Property and other related assets related to the Products.

Investments” means, with respect to any specified Person, all direct or indirect investments by such specified Person in other Persons (including Affiliates) in the forms of loans (including guarantees of Indebtedness or other Obligations), advances or capital contributions (excluding (i) commission, travel and similar advances to officers and employees made in the ordinary course of business and (ii) extensions of credit to customers or advances, deposits or payment to or with suppliers, lessors or utilities or for workers’ compensation, in each case, that are incurred in the ordinary course of business and recorded as accounts receivable, prepaid expenses or deposits on the balance sheet of such specified Person prepared in accordance with U.S. GAAP), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with U.S. GAAP. The acquisition by the Company or any Restricted Subsidiary of the Company of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Company or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person determined as provided in ‎Section 4.11(f). Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value but after giving effect (without duplication) to all subsequent reductions in the amount of such Investment as a result of (x) the repayment or disposition thereof for cash or (y) the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary (valued proportionately to the equity interest in such Unrestricted Subsidiary of the Company or such Restricted Subsidiary owning such Unrestricted Subsidiary at the time of such redesignation) at the Fair Market Value of the net assets of

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such Unrestricted Subsidiary at the time of such redesignation, in the case of clauses (x) and (y), not to exceed the original amount, or Fair Market Value, of such Investment.

Israeli Fixed Charge” means the Israeli law governed fixed charge dated as of the Issue Date, between Protalix Ltd. and the Israeli Security Trustee, as replaced, modified or supplemented from time to time.

Israeli Floating Charge” means the Israeli law governed floating charge, dated as of the Issue Date, between Protalix Ltd. and the Israeli Security Trustee, as replaced, modified or supplemented from time to time.

Israeli Innovation Authority” means the Israeli National Authority for Technological Innovation (formerly known as the Office of the Chief Scientist of the Israeli Ministry of the Economy), or any successor governmental authority.

Israeli Security Agreements” means the Israeli Fixed Charge, the Israeli Floating Charge and the Israeli Stock Pledge.

Israeli Security Trustee” means Altshuler Shaham Trusts Ltd., in its capacity as Security Trustee under the Israeli law governed Security Documents.

Israeli Stock Pledge” means the Israeli law governed pledge by the Company over its Equity Interests in Protalix Ltd., dated as of the Issue Date, between the Company and the Israeli Security Trustee, as replaced, modified or supplemented from time to time.

Issue Date” means the date of this Indenture, as set forth in the preamble hereto.

Last Original Issue Date” means the last date of original issuance of the Notes; provided, however, that Notes originally issued hereunder on the Issue Date (or any Notes issued in exchange therefor or in substitution thereof) shall have a separate Last Original Issue Date (determined as aforesaid) than any other Notes originally issued hereunder (or any Notes issued in exchange therefor or in substitution thereof).

Last Reported Sale Price” of the Common Stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is traded. If the Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant date as reported by OTC Markets Group Inc. or a similar organization. If the Common Stock is not so quoted, the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.

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Legal Requirements” means, as to any Person, any treaty, law (including the common law), statute, ordinance, code, rule, regulation, guidelines, license, permit requirement, judgment, decree, verdict, order, consent order, consent decree, writ, declaration or injunction, policies and procedures, Order or determination of an arbitrator or a court or other governmental authority, and the interpretation or administration thereof, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject, in each case whether or not having the force of law.

Lien” means, with respect to any property, (a) any mortgage, deed of trust, lien (statutory or other), judgment liens, pledge, encumbrance, claim, charge, assignment, hypothecation, deposit arrangement, security interest or encumbrance of any kind or any arrangement to provide priority or preference, including any easement, servitude, right-of-way or other encumbrance on title to real property, in each of the foregoing cases whether voluntary or imposed or arising by operation of law, and any agreement to give any of the foregoing, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement and any lease in the nature thereof and any option, call, trust, contractual, statutory, UCC or similar right relating to such property, (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities, and (d) any other arrangement having the effect of providing security.

Make-Whole Adjustment Event” means (a) any Change in Control (determined after giving effect to any exceptions or exclusions from the definition of “Change in Control” but without giving effect to the proviso in clause (b) of the definition thereof) and (b) any Termination of Trading.

Make-Whole Premium” means, with respect to each $1,000 in principal amount of Notes to be converted, an amount equal to the sum of the present values (with each such present value computed by a nationally recognized independent investment banking firm selected by the Company for this purpose using a discount rate per annum equal to (a) the Reference Discount Rate plus (b) 0.50%) of (i) subject to the immediately succeeding clause (ii), the remaining scheduled interest payments that would have been paid (assuming such payments are made in cash) on such Notes from the related Conversion Settlement Date to the earlier of the Maturity Date and the date that is two years after such Conversion Settlement Date (excluding, for purposes of calculating such present value, interest accrued on such Note to, but excluding, such Conversion Settlement Date that is otherwise paid pursuant to ‎Section 10.02(h)); or (ii) if the Conversion Date for such Notes occurs after the Regular Record Date with respect to an Interest Payment Date and prior to such Interest Payment Date, the remaining scheduled interest payments that would have been paid (assuming such payments are made in cash) on such Note from such Interest Payment Date to the earlier of the Maturity Date and the date that is two years after such Interest Payment Date.

Net Proceeds” means the aggregate cash proceeds and Cash Equivalents received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale or Casualty or Condemnation Event (including, without limitation, any cash or Cash

23


Equivalents received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale or Casualty or Condemnation Event, including, without limitation, legal, accounting and investment banking fees and sales commissions, and any relocation expenses incurred as a result of the Asset Sale or Casualty or Condemnation Event, taxes paid or payable as a result of the Asset Sale or Casualty or Condemnation Event, in each case, after taking into account, without duplication, (1) any available tax credits or deductions and any tax sharing arrangements, and amounts required to be applied to the repayment of Indebtedness secured by a Permitted Lien on the asset or assets that were the subject of such Asset Sale or Casualty or Condemnation Event and any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with U.S. GAAP, (2) any reserve or payment with respect to liabilities associated with such asset or assets and retained by the Company or any of its Restricted Subsidiaries after such sale or other disposition thereof, including, without limitation, severance costs, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction, (3) any cash escrows in connection with purchase price adjustments, reserves or indemnities (until released) and (4) in the case of any Asset Sale by a Restricted Subsidiary that is not a Guarantor, payments to holders of Equity Interests in such Restricted Subsidiary in such capacity (other than such Equity Interests held by the Company or any Restricted Subsidiary) to the extent that such payment is required to permit the distribution of such proceeds in respect of the Equity Interests in such Restricted Subsidiary held by the Company or any Restricted Subsidiary.

Non-Recourse Debt” means Indebtedness:

(1)as to which none of the Company and its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise, or (c) constitutes the lender, except, in each case, to the extent not prohibited by Section 4.11;

(2)no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to its Stated Maturity; and

(3)as to which the lenders have been notified in writing that they will not have any recourse to the Equity Interests or assets of the Company or any Restricted Subsidiary, except as set forth above.

Note Documents” means, collectively, this Indenture, the Notes, the Note Guarantees, the Security Documents and all other documents and instruments executed and delivered in connection herewith, in each case as such agreements may be amended, restated, supplemented or otherwise modified from time to time.

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Note Guarantees” means the guarantees by each Guarantor of the Company’s Obligations under this Indenture and the Notes, as set forth in this Indenture.

Note Liens” means all Liens in favor of the Collateral Agent or the Israeli Security Trustee, as applicable, on Collateral securing the Obligations of the Company under this Indenture and the Notes.

Note Obligations” means the Obligations of the Company and the other obligors (including the Guarantors) under this Indenture and the other Note Documents to pay principal, premium, if any, and interest (including any interest accruing after the commencement of bankruptcy or insolvency proceedings, whether or not allowed or allowable as a claim in such proceedings) when due and payable, and all other amounts due or to become due under or in connection with the Note Documents and the performance of all other Note Obligations of the Company and the Guarantors under the Note Documents, according to the respective terms thereof.

Notes” means any of the Company’s 7.50% Senior Secured Convertible Notes due 2024 issued under this Indenture.

NYSE American Stockholder Approval” means the stockholder approval contemplated by Section 713(a) of the NYSE American Company Guide to issue 20% or more of the outstanding Common Stock in connection with the Notes.

Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements (including, without limitation, reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities payable under the documentation governing any Indebtedness.

Observation Period” means, for any Note:

(a)subject to clause (b), if the Conversion Date for such Note occurs on or after the 22nd Scheduled Trading Day immediately preceding the Maturity Date, the 20 consecutive VWAP Trading Day period beginning on, and including, the 21st Scheduled Trading Day immediately preceding the Maturity Date;

(b)if the Conversion Date for such Note occurs on or after a Redemption Notice Date and on or prior to the second Business Day preceding the relevant Redemption Date, the 20 consecutive VWAP Trading Day period beginning on, and including, the 21st Scheduled Trading Day immediately preceding the relevant Redemption Date; and

(c)in all other instances, the 20 consecutive VWAP Trading Day period beginning on, and including, the second VWAP Trading Day immediately following the Conversion Date for such Note.

Officer” means the Chairman of the Board, the Vice Chairman, the Chief Executive Officer, the President, the Chief Financial Officer, any Executive Vice

25


President, any Senior Vice President, any Vice President, the Chief Accounting Officer, the Treasurer or the Secretary of the Company or any Guarantor, as applicable.

Officers’ Certificate” means a written certificate containing the information specified in Sections ‎15.03 and ‎15.04 hereof, signed in the name of the Company, or any Guarantor, as applicable, by any two Officers, and delivered to the Trustee and, if applicable, the Collateral Agent; provided that, if such certificate is given pursuant to ‎Section 4.05 hereof, (i) one of the Officers signing such certificate must be the Chief Financial Officer or the Chief Accounting Officer of the Company and (ii) such certificate need not contain the information specified in Sections ‎15.03 and ‎15.04 hereof.

Open of Business” means 9:00 a.m., New York City time.

Opinion of Counsel” means a written opinion containing the information specified in Sections ‎15.03 and 15.04 hereof, from legal counsel who is reasonably satisfactory to the Trustee and, if applicable, the Collateral Agent. The counsel may be an employee of, or counsel to, the Company who is reasonably satisfactory to the Trustee and, if applicable, the Collateral Agent.

Order” means any judgment, decree, verdict, order, consent order, consent decree, writ, declaration or injunction.

Permitted Business” means any business conducted by the Company or any of its Restricted Subsidiaries on the Issue Date and any business that, in the good faith judgment of the Board of Directors, is similar or reasonably related, ancillary, supplemental or complementary thereto or a reasonable extension, development or expansions thereof.

Permitted Exchange” means any of The NYSE American, The New York Stock Exchange, the NASDAQ Global Market, the NASDAQ Capital Market or the NASDAQ Global Select Market (or any of their respective successors).

Permitted Hedging Obligations” means any Hedging Obligations that would constitute Permitted Debt pursuant to ‎Section 4.13(b)(ix).

Permitted Investments” means:

(1)(i) any Investment in the Company or any Guarantor and (ii) any Investment by any Restricted Subsidiary of the Company that is not a Guarantor in the Company or any Restricted Subsidiary (in each case, other than any Investment in unsecured Indebtedness, any Indebtedness secured by a Lien junior in priority to the Liens securing the Notes or any Equity Interests of the Company);

(2)any Investment in Cash Equivalents;

(3)any Investment by the Company or any Restricted Subsidiary of the Company in a Person, if, as a result of, or in connection with, such Investment:

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(a)such Person becomes a Guarantor; or

(b)such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or any Guarantor;

(4)any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with ‎Section 4.14 or from a sale or other disposition of assets not constituting an Asset Sale;

(5)any acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company;

(6)any Investments received in compromise or resolution of (a) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Company or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; or (b) litigation, arbitration or other disputes;

(7)Investments represented by Permitted Hedging Obligations;

(8)loans and advances to officers, directors or employees (a) for business-related travel expenses, moving expenses and other similar expenses, including as part of a recruitment or retention plan, in each case incurred in the ordinary course of business or consistent with past practice or to fund any such Person’s purchase of Equity Interests of the Company or any direct or indirect parent entity of the Company, (b) required by applicable employment laws and (c) otherwise in an amount not to exceed $0.5 million at any one time outstanding;

(9)any Investment of the Company or any of its Restricted Subsidiaries existing on the Issue Date, and any extension, modification or renewal of such existing Investments, to the extent not involving any additional Investment other than as the result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities, in each case, pursuant to the terms of such Investments as in effect on the Issue Date;

(10)guarantees of Indebtedness otherwise permitted by the terms of this Indenture;

(11)receivables owing to the Company or any of its Restricted Subsidiaries, prepaid expenses, and lease, utility, workers’ compensation and other deposits, if created, acquired or entered into in the ordinary course of business;

(12)payroll, business-related travel and similar advances to cover matters that are expected at the time of such advances to be ultimately treated as expenses for accounting purposes and that are made in the ordinary course of business;

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(13)Investments consisting of purchases and acquisitions of inventory, supplies, material or equipment pursuant to joint marketing, joint development or similar arrangements with other Persons in the ordinary course of business and entered with bona fide counterparties operating in the same industry as the Company;

(14)advances, loans, rebates and extensions of credit (including the creation of receivables and endorsements for collection and deposit) to suppliers, customers and vendors, and performance guarantees, in each case in the ordinary course of business;

(15)Investments resulting from the acquisition of a Person, otherwise permitted by this Indenture, which Investments at the time of such acquisition were held by the acquired Person and were not acquired in contemplation of the acquisition of such Person;

(16)stock, obligations or securities received in satisfaction of judgments and any renewal or replacement thereof;

(17)repurchases of any Notes; and

(18)other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value) that, when taken together with all other Investments made pursuant to this clause (18), do not, at any time outstanding, exceed $2.5 million, net of any cash return of capital with respect to such Investments received by the Company or any Restricted Subsidiary of the Company.

In the event that an Investment (or any portion thereof) meets the criteria of more than one of the categories of Permitted Investments described in clauses (1) through (18) above, the Company will be permitted to classify (and may from time to time thereafter reclassify) such Investment (or any portion thereof) and will only be required to include such Investment in one of the categories of Permitted Investments described in clauses (1) through (18) above. At the time of making such Investment or upon any later reclassification, the Company may divide and classify an Investment in more than one of the categories of Permitted Investments described in clauses (1) through (18) above.

Permitted Liens” means:

(1)(x) Liens on the Collateral securing any Indebtedness incurred under ‎Section 4.13(b)(i); provided that the aggregate principal amount of such Indebtedness outstanding, on a pro forma basis, does not exceed the principal amount of the Notes issued on the Issue Date and (y) Liens securing the Existing Convertible Notes or Existing Indebtedness and related note guarantees with respect thereto, provided that the Existing Convertible Notes and related note guarantees are secured equally, ratably and pari passu with such Liens;

(2)Liens on property of a Person existing at the time such Person becomes a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or any Restricted Subsidiary; provided, that such Liens were in existence prior

28


to the contemplation of such Person becoming a Restricted Subsidiary of the Company or such merger or consolidation and do not extend to any assets other than those of the Person that becomes a Restricted Subsidiary of the Company or is merged into or consolidated with the Company or any Restricted Subsidiary of the Company (plus improvements and accessions to such property or proceeds or distributions thereof);

(3)Liens on property (including Capital Stock) existing at the time of acquisition of the property by the Company or any Restricted Subsidiary of the Company (plus improvements and accessions to such property or proceeds or distributions thereof); provided, that such Liens were in existence prior to such acquisition and not incurred in contemplation of such acquisition;

(4)Liens to secure permitted Capital Lease or purchase money obligations, as permitted to be incurred pursuant to clause (iii) under ‎Section 4.13(b), and encumbering only the assets acquired with or financed by such Indebtedness (plus improvements and accessions to such property or proceeds or distributions thereof);

(5)Liens in the form of licenses or sublicenses under commercial licensing agreements; provided that such licenses or sublicenses are permitted pursuant to clauses (1) or (16) of the second paragraph of the definition of Asset Sales;

(6)Liens in favor of the Company or the Guarantors;

(7)Liens (other than Liens imposed by the Employee Retirement Income Security Act of 1974, as amended) in the ordinary course of business to secure the performance of tenders, statutory obligations (other than excise taxes), insurance, surety, bid, performance, stay, customs and appeal bonds, statutory bonds, bids, leases, government contracts, trade contracts, performance bonds and other similar obligations (in each case, exclusive of obligations for the payment of Indebtedness); provided, that, such Liens are for amounts not yet due and payable or delinquent or, to the extent such amounts are so due and payable, such amounts are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with U.S. GAAP, which proceedings (or any Order entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien;

(8)[Reserved];

(9)Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded, which proceedings (or Order entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien; provided, that any reserve or other appropriate provision as is required in conformity with U.S. GAAP has been made therefor;

(10)any state of facts an accurate survey would disclose, prescriptive easements or adverse possession claims, minor encumbrances, easements or reservations of, or rights of others for, or pursuant to any leases, licenses, rights-of-way or other

29


similar agreements or arrangements, development, air or water rights, sewers, electric lines, telegraph and telephone lines and other utility lines, pipelines, service lines, railroad lines, improvements and structures located on, over or under, any property, drains, drainage ditches, culverts, electric power or gas generating or co-generation, storage and transmission facilities and other similar purposes, zoning or other restrictions as to the use of real property or minor defects in title, which were not incurred to secure payment of Indebtedness and that do not in the aggregate materially adversely affect the value or marketability of said properties or materially impair their use in the operation of the business of the owner or operator of such properties or business;

(11)[Reserved];

(12)Liens incurred or pledges or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security and employee health and disability benefits, or casualty-liability insurance or self-insurance; provided, that, such Liens are for amounts not yet due and payable or delinquent or, to the extent such amounts are so due and payable, such amounts are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with U.S. GAAP, which proceedings (or any Order entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien;

(13)judgment and attachment Liens not giving rise to an Event of Default and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made in conformity with U.S. GAAP;

(14)Liens on assets securing Permitted Hedging Obligations;

(15)Liens in favor of any collecting or payor bank having a right of setoff, revocation, refund or chargeback with respect to money or instruments of the Company or any Restricted Subsidiary thereof on deposit with or in possession of such bank;

(16)any obligations or duties affecting any of the property of the Company or any of its Restricted Subsidiaries to any municipality or public authority with respect to any franchise, grant, license, or permit that do not materially impair the use of such property for the purposes for which it is held;

(17)Liens on any amounts held by a trustee in the funds and accounts under an indenture securing any bonds issued for the benefit of the Company or any of the Guarantors;

(18)Liens on deposit accounts incurred to secure Treasury Management Arrangements pursuant to such Treasury Management Arrangements incurred in the ordinary course of business;

(19)any netting or set-off arrangements entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of its banking arrangements (including,

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for the avoidance of doubt, cash pooling arrangements) for the purposes of netting debit and credit balances of the Company or any of its Restricted Subsidiaries;

(20)Liens on any cash deposit made by the Company to the account of the Existing Convertible Notes Trustee or to the account of a trustee of other Indebtedness of the Company, for the benefit of the holders of the Existing Convertible Notes or such other Indebtedness, solely in connection with an Effective Discharge or an effective discharge of such other Indebtedness; provided that, in each case, such cash is received in a transaction pursuant to ‎Section 4.11(e)(ii) or ‎Section 4.11(e)(vi) for the purpose of such Effective Discharge or such effective discharge of such other Indebtedness; and

(21)Liens imposed by law, which were incurred in the ordinary course of business and do not secure Indebtedness for borrowed money, such as carriers’, warehousemen’s, materialmen’s, landlords’, workmen’s, suppliers’, repairmen’s and mechanics’ Liens and other similar Liens arising in the ordinary course of business (including customary contractual landlords’ liens under operating leases entered into in the ordinary course of business); and (i) which do not in the aggregate materially detract from the value of the property of the Companies, taken as a whole, and do not materially impair the use thereof in the operation of the business of the Company and its Restricted Subsidiaries, taken as a whole, and (ii) which, if they secure obligations that are then due and unpaid, are being contested in good faith by appropriate proceedings timely initiated and for which adequate reserves have been established in accordance with GAAP, which proceedings (or Orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien.

Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof.

Physical Settlement” means (a) with respect to the Conversion Settlement Method applicable to any conversion of Notes, that the Company shall have elected, in accordance with ‎Section 10.02(a), to settle its Conversion Obligation solely in shares of Common Stock (and cash in lieu of any fractional shares) in accordance with ‎Section 10.02(a)(iii)(B) and (b) with respect to the Make-Whole Settlement Method applicable to the Make-Whole Premium due upon any conversion of Notes, that the Company shall have elected, in accordance with ‎Section 10.03(a), to settle its Make-Whole Obligation solely in shares of Common Stock (and cash in lieu of any fractional shares) in accordance with ‎Section 10.03(a)(iii)(B).

Products” means any of PRX-102, PRX-106, PRX-110, PRX-112, PRX-115 and PRX-119.

Publicly Traded Securities” means shares of common stock traded on a Permitted Exchange.

Record Date” means, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock (or other applicable security)

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have the right to receive any cash, securities or other property or in which the Common Stock (or such other security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of holders of the Common Stock (or such other security) entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors, by statute, by contract or otherwise).

Redemption Notice Date” means the date on which the Company delivers to Holders and the Trustee a Redemption Notice pursuant to ‎Section 11.02(a).

Redemption Price” means:

(a)for any Note to be redeemed pursuant to Section 11.01(a) on any Redemption Date, an amount calculated by the Company equal to (a) 100% of the principal amount of such Note; plus (b) any accrued and unpaid interest on such Note to, but excluding, the Redemption Date (unless the Redemption Date falls after a Regular Record Date but on or prior to the immediately succeeding Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to Holders of record of such Notes on such Regular Record Date and the Redemption Price will not include such accrued interest); plus (c) the sum of the present values (with each such present value computed by a nationally recognized independent investment banking firm selected by the Company for this purpose using a discount rate per annum equal to (x) the Reference Discount Rate plus (y) 0.50%) of (i) subject to the immediately succeeding clause (ii), the remaining scheduled interest payments that would have been paid (assuming such payments are made in cash) on such Notes from the Redemption Date to the earlier of the Maturity Date and the date that is two years after such Redemption Date (excluding, for purposes of calculating such present value, interest accrued on such Note to, but excluding, the Redemption Date that is otherwise paid pursuant to the immediately preceding clause (b)); or (ii) if the Redemption Date occurs after the Regular Record Date with respect to an Interest Payment Date and prior to such Interest Payment Date, the remaining scheduled interest payments that would have been paid (assuming such payments are made in cash) on such Note from such Interest Payment Date to the earlier of the Maturity Date and the date that is two years after such Interest Payment Date; or

(b)for any Note to be redeemed pursuant to ‎Section 11.01(b) on any Redemption Date, an amount equal to (a) 101% of the principal amount of such Note; plus (b) any accrued and unpaid interest on such Note to, but excluding, the Redemption Date (unless the Redemption Date falls after a Regular Record Date but on or prior to the immediately succeeding Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to Holders of record of such Notes on such Regular Record Date and the Redemption Price will not include such accrued interest).

Reference Discount Rate” means, for any conversion or Optional Redemption, as the case may be, the yield for 3-month U.S. Treasury bills in secondary market trading for the fifth Business Day immediately preceding the Conversion Date or Redemption Notice Date, as applicable, as displayed opposite the caption “U.S. government securities—Treasury bills (secondary market)—3-month” on the “H.15” weekly release

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or daily update, as applicable, for that Business Day published by the Federal Reserve System Board of Governors (or its successor) (or its equivalent successor if such weekly release or daily update, as applicable, is not available). If such yield is unavailable, the “Reference Discount Rate” will be the average of the secondary market bid rates of at least three nationally recognized independent investment banking firms selected by the Company for this purpose and may include the investment banking firm selected by the Company to determine the Make-Whole Premium or Redemption Price, as applicable, as of 3:30 p.m., New York City time, on that Business Day for the issue of U.S. Treasury bills with a remaining maturity closest to three months.

Restricted Investment” means an Investment other than a Permitted Investment.

Restricted Notes Legend” means the legend identified as such set forth in Exhibit A hereto, or any other similar legend indicating the restricted status of the Notes under Rule 144.

Restricted Stock Legend” means a legend in the form set forth in Exhibit C hereto or any other similar legend indicating the restricted status of the Common Stock under Rule 144.

Restricted Subsidiary” of a Person means any Subsidiary of such Person that is not an Unrestricted Subsidiary. Where such term is used without a referent Person, such term shall be deemed to mean a Subsidiary of the Company that is not an Unrestricted Subsidiary, unless the context otherwise requires.

Rule 144” means Rule 144 under the Securities Act (or any successor provision), as it may be amended from time to time.

Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.

Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted for trading. If the Common Stock is not so listed or admitted for trading, “Scheduled Trading Day” means a Business Day.

SEC” means the Securities and Exchange Commission.

Secured Parties” has the meaning set forth in the U.S. Security Agreement.

Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

Security Agreements” means, as the context requires, (i) the U.S. Security Agreement, (ii) Israeli Fixed Charge, (iii) the Israeli Floating Charge and (iv) the Israeli Stock Pledge, each as amended, restated, amended and restated, modified, supplemented or replaced from time to time in accordance with this Indenture and the terms thereunder.

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Security Documents” means the Security Agreements and all security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust, collateral agency agreements, control agreements or other grants or transfers for security executed and delivered by the Company or any other Guarantor creating (or purporting to create) a Lien upon Collateral in favor of the Collateral Agent or the Israeli Security Trustee, as applicable, in each case, as amended, restated, amended and restated, modified, renewed or replaced, in whole or in part, from time to time, in accordance with its terms.

Share Make-Whole Premium Number” means, with respect to any Conversion Date, a number of shares of Common Stock equal to (a) (i) the Make-Whole Premium minus (ii) the applicable Cash Make-Whole Premium Amount divided by (b) the applicable Conversion Make-Whole Share Price; provided that, if the Make-Whole Premium is less than or equal to the Cash Make-Whole Premium Amount, the Share Make-Whole Premium Number shall be zero.

Significant Subsidiary” means any Subsidiary that is a “significant subsidiary” of the Company within the meaning of Rule 1-02(w) of Regulation S-X promulgated under the Exchange Act.

Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal, as applicable, was scheduled to be paid in the documentation governing such Indebtedness, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof; provided, however, that, with respect to ‎Section 4.11(c), the Stated Maturity of any Existing Indebtedness shall be the Stated Maturity as of the Issue Date or a later date to the extent the documents governing such Indebtedness shall have been amended or modified to provide for such later date.

Subsidiary” means, with respect to any specified Person:

(1)any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person (or a combination thereof); and

(2)any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are such Person or one or more Subsidiaries of such Person (or any combination thereof) to the extent such partnership is included in the consolidated financial statements of such Person.

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Termination of Trading” means the Common Stock (or other Reference Property into which the Notes are then convertible) ceases to be listed or quoted on any Permitted Exchange.

TIA” means the Trust Indenture Act of 1939 as in effect on the Issue Date; provided, however, that if the TIA is amended after such date, TIA means, to the extent required by any such amendment, the TIA as so amended.

Trading Day” means a day on which (i) trading in the Common Stock (or other security for which a Last Reported Sale Price must be determined) generally occurs on The NYSE American or, if the Common Stock (or such other security) is not then listed on The NYSE American, on the principal other U.S. national or regional securities exchange on which the Common Stock (or such other security) is then listed or, if the Common Stock (or such other security) is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock (or such other security) is then traded and (ii) a Last Reported Sale Price for the Common Stock (or such other security) is available on such securities exchange or market; provided, that if the Common Stock (or such other security) is not so listed or traded, “Trading Day” means a Business Day.

Transfer” means, with respect to any Restricted Note or share of Common Stock that bears, or is required to bear, the Restricted Stock Legend, any sale, pledge, transfer, loan, hypothecation or other disposition of such Restricted Note or share of Common Stock, as the case may be.

Transfer Agent” means, initially, American Stock Transfer & Trust Company, LLC, in its capacity as the transfer agent for the Common Stock, and any successor entity acting in such capacity.

Treasury Management Arrangement” means any agreement or other arrangement governing the provision of treasury or cash management services, including, without limitation, deposit accounts, overdraft, overnight draft, credit cards, debit cards, p-cards (including purchasing cards, employee credit card programs and commercial cards), funds transfer, automated clearinghouse, direct debit, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services, netting services, cash pooling arrangements, credit and debit card acceptance or merchant services and other treasury or cash management services.

Trust Officer” means any officer within the corporate trust department of the Trustee (or any successor group of the Trustee) or, if applicable, the Collateral Agent with direct responsibility for the administration of this Indenture or, if applicable, the U.S. Security Agreement and also means, with respect to a particular corporate trust matter hereunder, any other officer of the Trustee or, if applicable, the Collateral Agent to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.

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Trustee” means the party named as the “Trustee” in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, means such successor. The foregoing sentence will likewise apply to any such subsequent successor or successors.

U.S. GAAP” means generally accepted accounting principles set forth in opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession in the United States in effect on the date of this Indenture.

U.S. Security Agreement” means the Amended and Restated U.S. Security Agreement dated as of the Issue Date, among the Company, the Guarantors party thereto, the Trustee, the Existing Convertible Notes Trustee and the Collateral Agent.

 

UCC” means the New York Uniform Commercial Code as in effect from time to time.

Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that such Subsidiary:

(1)has no Indebtedness other than Non-Recourse Debt;

(2)is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or any such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company;

(3)is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has a direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and

(4)has not guaranteed or otherwise provided credit support for any Indebtedness of the Company or any of the Company’s Restricted Subsidiaries.

VWAP Market Disruption Event” means, with respect to any date, (i) the failure by the principal U.S. national or regional securities exchange on which the Common Stock is then listed, or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, the principal other market on which the Common Stock is then traded, to open for trading during its regular trading session on such date; or (ii) the occurrence or existence, for more than one half hour period in the aggregate, of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Common Stock or in any options contracts or future contracts relating to the Common

36


Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m., New York City time, on such date.

VWAP Trading Day” means a day during which (i) trading in the Common Stock generally occurs on the principal U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted for trading and (ii) there is no VWAP Market Disruption Event. If the Common Stock is not so listed or traded, then “VWAP Trading Day” means a Business Day.

Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

(1)the sum of the products obtained by multiplying (a) the amount of each then-remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of such Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

(2)the then-outstanding principal amount of such Indebtedness.

Wholly Owned Subsidiary” of any specified Person means, (a) any corporation one hundred percent of whose capital stock (other than directors’ qualifying shares and other nominal shares required to be held by local nationals, in each case to the extent required under applicable Legal Requirements) is at the time owned by such Person and/or one or more Wholly Owned Subsidiaries of such Person and (b) any partnership, association, joint venture, limited liability company or other entity in which such Person and/or one or more Wholly Owned Subsidiaries of such Person have a one hundred percent Equity Interest (other than directors’ qualifying shares and other nominal shares required to be held by local nationals, in each case to the extent required under applicable Legal Requirements) at such time.

Section 1.02.Other Definitions.

Term Section:

Defined in:

Act

1.04

Additional Interest

4.04(a)

Additional Notes

2.01(a)

Additional Shares

10.04(a)

Affiliate Transaction

4.16(a)

Agent Members

2.02(c)

Aggregate Payments

12.01(e)

Aggregated Person

10.13

Applicable Law

15.15

Authorized Officer

15.02

Calculation Date

1.01

Cash Amount

10.02(a)(i)

Cash Make-Whole Premium Amount

10.03(a)(i)

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Term Section:

Defined in:

Clause A Distribution

10.05(c)

Clause B Distribution

10.05(c)

Clause C Distribution

10.05(c)

Contributing Guarantors

12.01(e)

Conversion Agent

2.06(a)

Conversion Date

10.02(c)

Conversion Obligation

10.01

Conversion Rate

10.01

Conversion Settlement Method

10.02(a)(iii)

Default Interest

2.04(d)

Defaulted Amount

2.04(d)

Distributed Property

10.05(c)

Electronic Means

15.02

Event of Default

6.01(a)

Fair Share

12.01(e)

Fair Share Contribution Amount

12.01(e)

Fundamental Change Company Notice

3.01(c)

Fundamental Change Repurchase Date

3.01(a)

Fundamental Change Repurchase Notice

3.01(b)(i)

Fundamental Change Repurchase Price

3.01(a)

Funding Guarantor

12.01(e)

incur

4.14(a)

Instructions

15.02

Interest Payment Date

2.04(a)

Make-Whole Adjustment Period

10.04(a)

Make-Whole Exception

10.13

Make-Whole Obligation

10.03(a)

Make-Whole Settlement Method

10.03(a)(iii)

Maturity Date

2.04(a)

Merger Event

10.08(a)

Moody’s

1.01

Notice of Conversion

10.02(b)

Optional Redemption

11.01

Paying Agent

2.06(a)

Permitted Debt

4.14(b)

Permitted Refinancing Indebtedness

4.14(b)(v)

Redemption Date

11.02(a)

Redemption Notice

11.02(a)

Reference Property

10.08(a)

refinance

4.14(b)(v)

Register

2.06(a)

Registrar

2.06(a)

Regular Record Date

2.04(a)

Reorganization Event

5.01

Reorganization Successor Corporation

5.01(a)(ii)

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Term Section:

Defined in:

Restricted Note

2.10(a)(i)

Restricted Ownership Percentage

10.13

Restricted Payments

4.12(d)

S&P

1.01

Section 16 Conversion Blocker

10.13

Settlement Notice

10.02(a)(i)

Special Interest

‎4.03(d)

Special Regular Record Date

2.04(d)(i)

Specified Proceeds

4.14(b)(i)(A)

Specified Proceeds Offer

4.14(c)(i)

Specified Proceeds Offer Company Notice

4.14(c)(ii)

Specified Proceeds Offer Purchase Date

4.14(c)(i)

Specified Proceeds Offer Purchase Price

4.14(c)(i)

Specified Proceeds Offer Repurchase Notice

4.14(c)(iii)

Spin-Off

10.05(c)

Stock Price

10.04(c)

Subordinated Indebtedness

4.12(c)

Temporary Notes

2.12

Tender/Exchange Offer Valuation Period

10.05(e)

Trigger Event

10.05(c)

unit of Reference Property

10.08(a)

Valuation Period

10.05(c)

Section 1.03.Rules of Construction. Unless the context requires otherwise:

(1)a term has the meaning assigned to it;

(2)an accounting term not otherwise defined has the meaning assigned to it and will be construed in accordance with U.S. GAAP;

(3)or” is not exclusive;

(4)including” means including, without limitation;

(5)words in the singular include the plural, and words in the plural include the singular;

(6)all references to $, dollars, cash payments or money refer to United States currency;

(7)all references to interest on the Notes (a) will include any Additional Interest payable pursuant to Section 4.04 hereof and Special Interest payable pursuant to Section ‎4.03(d) hereof, (b) but, for the avoidance of doubt, will not include any Default Interest payable on a Defaulted Amount pursuant to the terms of Section 2.04 hereof; and

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(8) unless otherwise provided in this Indenture, the words “execute,” “execution,” “signed” and “signature” and words of similar import used in or related to any document to be signed in connection with this Indenture or any document to be delivered hereunder (other than a Note) or the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent permitted by, and as provided for in, any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other similar state laws based on the Uniform Electronic Transactions Act; provided that, notwithstanding anything herein to the contrary, neither the Trustee nor the Collateral Agent is under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee or the Collateral Agent, as applicable, pursuant to procedures approved by the Trustee or the Collateral Agent, as applicable. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any other party delivered in accordance with this Section 1.03(8) and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof.

Section 1.04.Acts of Holders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action will become effective when such instrument or instruments are delivered to the Trustee, the Collateral Agent (if applicable) and to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of Holders signing such instrument or instruments. Proof of execution of any such instrument will be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee, the Collateral Agent (if applicable) and the Company, if made in the manner provided in this Section 1.04.

The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to such officer the execution thereof. Where such execution is by a signer acting in a capacity other than such signer’s individual capacity, such certificate or affidavit will also constitute sufficient proof of such signer’s authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee and the Collateral Agent (if applicable) deem sufficient.

Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Note will bind every future Holder of the same Note and the

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Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Collateral Agent, the Company, the Paying Agent, the Conversion Agent or the Registrar in reliance thereon, whether or not notation of such action is made upon such Note.

Article 2
THE NOTES
Section 2.01.Designation, Amount and Issuance of Notes.
(a)The Notes will be designated as “7.50% Senior Secured Convertible Notes due 2024.” The initial aggregate principal amount of Notes to be issued, authenticated and delivered on the Issue Date under this Indenture is twenty-eight million seven hundred fifty thousand dollars ($28,750,000). From time to time, the Company may issue and execute, and the Trustee may authenticate, Notes delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections ‎2.09, ‎2.11, ‎2.12 and ‎10.02 hereof, or delivered upon any redemption or repurchase of Notes and representing the un-redeemed or un-repurchased portion thereof. In addition, the Company may issue an unlimited aggregate principal amount of additional Notes (“Additional Notes”) in accordance with clause (b) of this Section 2.01, so long as the incurrence of the Indebtedness represented by such Additional Notes is at such time permitted by Sections ‎4.13 and ‎4.16.
(b)Without the consent of any Holder, and notwithstanding anything to the contrary in Sections 2.01(a) or 2.05 hereof, the Company may increase the aggregate principal amount of the Notes issued under this Indenture by issuing Additional Notes, so long as the incurrence of the Indebtedness represented by such Additional Notes is at such time permitted by Sections 4.13 and 4.16, with the same terms as the initial Notes (except, the issue price, the issue date, and, to the extent applicable the first Interest Payment Date, and as to the Last Original Issue Date with respect to such Additional Notes as provided in the proviso to the definition thereof), which Notes will, subject to the foregoing, be considered to be part of the same series of Notes as those initially issued hereunder; provided, however, that if any such Additional Notes are not fungible with other Notes issued hereunder for United States securities laws and federal income tax purposes, then such Additional Notes shall have a separate CUSIP number or numbers. Prior to issuing any such Additional Notes, the Company will deliver to the Trustee a Company Order, an Officers’ Certificate and an Opinion of Counsel, which Officers’ Certificate and Opinion of Counsel will (i) confirm that the incurrence of the Indebtedness represented by such Additional Notes is at such time permitted by Section 4.13 and 4.16 and (ii) address any matters required to be addressed under ‎Section 15.04 hereof.
Section 2.02.Form of Notes.

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(a)General. The Notes will be substantially in the form of Exhibit A hereto, but may include any notations, legends or endorsements required by any applicable law (or regulation promulgated thereunder), stock exchange rule or usage, or any insertions, omissions or other variations otherwise permitted or required by this Indenture. Whenever any such notation, legend or endorsement, or any such insertion, omission or other variation is applicable to a Note, the Company will provide such notation, legend or endorsement, or such insertion, omission or other variation to the Trustee in writing.

Each Note will bear a Trustee’s certificate of authentication substantially in the form set forth in Exhibit A hereto.

Notes that are Global Notes will bear the Global Notes Legend and the “Schedule of Increases and Decreases of Global Note” attached thereto.

Notes that are Restricted Notes will bear the Restricted Notes Legend.

The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Company, the Guarantors, the Trustee and the Collateral Agent, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent that any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture will govern and control.

(b)Initial and Subsequent Notes. The Notes initially will be issued in global form, registered in the name of Cede & Co., as the nominee of the Depositary, and deposited with the Trustee, at its Corporate Trust Office, as custodian for the Depositary. Except to the extent provided in Section 2.09(c) hereof, all Notes will be represented by one or more Global Notes.
(c)Global Notes. Each Global Note will represent the aggregate principal amount of then outstanding Notes endorsed thereon and provide that it represents such aggregate principal amount of then outstanding Notes, which aggregate principal amount may, from time to time, be reduced or increased to reflect transfers, exchanges, conversions, redemptions or repurchases by the Company.

Only the Trustee, or the custodian holding such Global Note for the Depositary, at the direction of the Trustee, may endorse a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of then outstanding Notes represented thereby, and whenever the Holder of a Global Note delivers instructions to the Trustee to increase or decrease the aggregate principal amount of then outstanding Notes represented by a Global Note in accordance with ‎Section 2.09 hereof, the Trustee, or the custodian holding such Global Note for the Depositary, at the direction of the Trustee, will endorse such Global Note to reflect such increase or decrease in the aggregate principal amount of then outstanding Notes represented thereby. None of the Trustee, the Paying Agent, the Registrar, the Conversion Agent, the Collateral Agent, the

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Company, the Guarantors or any agent of the Trustee, the Paying Agent, the Registrar, the Conversion Agent, the Collateral Agent, the Company or the Guarantors will have any responsibility or bear any liability or any obligation to any Agent Members or any other Person on whose behalf Agent Members may act with respect to (i) any aspect of the records relating to, or payments made on account of, the ownership of any beneficial interest in a Global Note (ii) any notice required hereunder, (iii) with respect to maintaining, supervising or reviewing any records relating to such beneficial interest, or (iv) any actions taken or not taken by any Agent Members.

Neither any member of, or participant in, the Depositary (collectively, the “Agent Members”) nor any other Person on whose behalf an Agent Member may act will have any rights under this Indenture with respect to any Global Note or under such Global Note, and the Company, the Guarantors, the Trustee, the Paying Agent, the Registrar, the Conversion Agent, the Collateral Agent and any agent of the Company, the Guarantors, the Trustee, the Paying Agent, the Registrar, the Conversion Agent, or the Collateral Agent, may, for all purposes, treat the Depositary, or its nominee, if any, as the absolute owner and Holder of such Global Note.

The Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that such Holder is entitled to take under this Indenture or the Notes with respect to such Global Note, and, notwithstanding the foregoing, nothing herein will prevent the Company, the Guarantors, the Trustee, the Collateral Agent, the Paying Agent, the Registrar, the Conversion Agent or any agent of the Company, the Guarantors, the Trustee, the Collateral Agent, the Registrar, the Conversion Agent or the Paying Agent from giving effect to any written certification, proxy or other authorization furnished by such Holder or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of their respective customary practices governing the exercise of the rights of a Holder of any interest in any Global Note.

Section 2.03.Denomination of Notes. The Notes will be issuable in registered form without coupons in minimum denominations of $1,000 principal amount and in integral multiples of $1,000 in excess thereof.
Section 2.04.Payments.
(a)General.
(i)Payment at Maturity. Unless earlier paid or deemed paid or converted pursuant to any of ‎Article 3, ‎Section 4.14, ‎Section 10.02 or ‎Article 11 hereof, the Notes will mature on September 1, 2024 (the “Maturity Date”), and, on the Maturity Date, the Company will pay each Holder of Notes $1,000 in cash for each $1,000 principal amount of Notes held, together with accrued and unpaid interest to, but not including, the Maturity Date on such Notes.

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(ii)Payment of Interest. Each Note will accrue interest at a rate equal to 7.50% per annum from the most recent date to which interest has been paid or duly provided for, or, if no interest has been paid or duly provided for, from the date provided in the certificate representing such Note until, subject to the provisions of clause (d) of this ‎Section 2.04, the date the principal amount of such Note is paid or deemed paid or (subject to Section 10.02(h)) the Conversion Settlement Date, as the case may be, pursuant to clause (i) of this ‎Section 2.04(a) or any of ‎Article 3, ‎Section 4.14, ‎Section 10.02 or ‎Article 11 hereof.

Interest will be payable semi-annually in arrears on March 1 and September 1 of each year (each, an “Interest Payment Date”), beginning March 1, 2022 (or such other date provided for in Section 2.01(b) with respect to Additional Notes issued in accordance with such Section), to the Holder of each such Note as of the Close of Business on the February 15 and August 15, as the case may be, immediately preceding the applicable Interest Payment Date whether or not a Business Day (each such date, a “Regular Record Date”), regardless of whether such Note is converted, repurchased or redeemed after such Regular Record Date. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.

The Company will pay the principal of, the Fundamental Change Repurchase Price or the Redemption Price for, and any interest on, any Global Note to the Depositary by wire transfer of immediately available funds on the relevant payment date.

The Company will pay the principal of, the Fundamental Change Repurchase Price or Redemption Price for, and any interest due on the Maturity Date on, any Definitive Note in cash to the applicable Holder of such Note at the office of the Paying Agent on the relevant payment date.

The Company will pay the interest due, on an Interest Payment Date, on any Definitive Note (except interest due on the Maturity Date) to the applicable Holder of such Note (i) if such Holder holds $5,000,000 or less aggregate principal amount of Notes, by check mailed to such Holder’s registered address, and (ii) if such Holder holds more than $5,000,000 aggregate principal amount of Notes, (A) by check mailed to such Holder’s registered address or (B) if such Holder delivers, not later than the Regular Record Date relating to such Interest Payment Date, a written request to the Registrar that the Company make such payments by wire transfer to an account of such Holder within the United States, by wire transfer of immediately available funds to such account, which request shall remain in effect until such Holder notifies, in writing, the Registrar to the contrary.

(b)Interest Rights Preserved. Subject to the provisions of Section 2.04(d) hereof, and, to the extent applicable, Sections 2.09 and 2.11 hereof, each Note delivered under this Indenture upon registration of transfer of, or in exchange for, or in lieu of, any other Note will carry any rights to the payment and accrual of interest that were carried by the relevant surrendered Note, Notes, or portion(s) thereof.

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(c)Additional Interest and Special Interest. Pursuant to Section 4.04 and Section 4.03(d) hereof, in certain circumstances, Additional Interest and/or Special Interest will accrue on the Notes. Unless the context requires otherwise, all references in this Indenture to interest on the Notes will include such Additional Interest and/or Special Interest, but will not include any Default Interest payable pursuant to Section 2.04(d) hereof.
(d)Defaulted Amounts. Whenever any amount payable on a Note (including the principal of, the Fundamental Change Repurchase Price or Redemption Price for, and interest on, such Note) has become due and payable, but the Company fails to punctually pay or duly provide for such amount (any such amount, a “Defaulted Amount”), such Defaulted Amount will forthwith cease to be payable to the Holder of such Note on the relevant payment date by virtue of its having been due such payment on such payment date, but will instead, to the extent permitted under applicable law, accrue interest (including post-petition interest in any proceeding under Bankruptcy Law) (“Default Interest”) at a rate equal to 10% per annum from, and including, such payment date and to, but excluding, the date on which such Defaulted Amount is paid by the Company in accordance with either clause (i) or (ii) below.
(i)The Company may elect to pay any Defaulted Amount and Default Interest on such Defaulted Amount to the Persons in whose names the Notes (or their respective predecessor Notes) are registered at the Close of Business on a special record date for the payment of such Defaulted Amount and Default Interest (a “Special Regular Record Date”) fixed in accordance with the following procedures:
(A)At least 30 days before the date on which the Company proposes to pay such Defaulted Amounts and Default Interest thereon, the Company will deliver to the Trustee written notice of (I) the proposed payment date for such Defaulted Amounts and Default Interest thereon and (II) the aggregate amount of such Defaulted Amounts and Default Interest thereon.
(B)Simultaneously with delivering such notice to the Trustee, the Company will either (I) deposit with the Trustee an amount of money, in immediately available funds, equal to the aggregate amount of such Defaulted Amounts and Default Interest thereon, or (II) take other actions that the Trustee deems reasonably satisfactory to ensure that an amount of money, in immediately available funds, equal to the aggregate of such Defaulted Amounts and Default Interest thereon will be deposited with the Trustee by 10:00 a.m., New York City time, on the proposed payment date, and in either case, upon receipt of such money, the Trustee will hold such money in trust for the benefit of the Persons entitled to such Defaulted Amounts and Default Interest pursuant to this Section 2.04(d)(i).

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(C)Upon (i) receipt of such notice and (ii) the Company’s depositing such money or taking such other actions reasonably satisfactory to the Trustee, the Company will promptly fix a Special Regular Record Date for the payment of such Defaulted Amounts and Default Interest thereon, which Special Regular Record Date will be not more than 15 calendar days and not less than 10 calendar days prior to the proposed payment date, and notify the Trustee of the Special Regular Record Date. The Trustee will then, in the name and at the expense of the Company, deliver notice to each Holder specifying such Special Regular Record Date and the date on which such Defaulted Amounts and Default Interest thereon will be paid by the Company.
(D)After such notice has been delivered by the Trustee, such Defaulted Amounts and Default Interest thereon will be paid to the Persons in whose names the Notes (or their respective predecessor Notes) are registered at the Close of Business on the Special Regular Record Date specified in such notice and such Defaulted Amounts and Default Interest thereon will no longer be payable pursuant to the following clause (ii) of this Section 2.04(d)(i).
(ii)The Company may pay any Defaulted Amounts and Default Interest on such Defaulted Amounts in any other lawful manner that is not inconsistent with the requirements of any securities exchange or automated quotation system on which the Notes are then listed (or, if applicable, have been approved for listing) or designated for issuance, and upon such notice as may be required by such exchange or automated quotation system, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment will be deemed practicable by the Trustee.
Section 2.05.Execution and Authentication.
(a)In General. A Note will be valid only if executed by the Company and authenticated by the Trustee.
(b)Execution. A Note will be deemed to have been executed by the Company when an Officer signs such Note on behalf of the Company. The Officer’s signature may be manual or facsimile, and the validity of such Officer’s signature will not turn on whether such signatory remains an Officer at the time the Trustee authenticates such Note.
(c)Authentication. A Note will be deemed authenticated when an authorized signatory of the Trustee signs the certificate of authentication on such Note manually, electronically or by facsimile. An authorized signatory of the Trustee will sign the certificate of authentication on a Note manually, electronically or by facsimile only if (i) the Company delivers such Note to the Trustee, (ii) such Note is validly executed by the Company in accordance with Section 2.05(b) hereof, and (iii) the Company delivers, before or with such Note, a Company Order setting

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forth (A) a request that the Trustee authenticate such Note; (B) the principal amount of such Note; (C) the name of the Holder of such Note, (D) the date on which such Note is to be authenticated; and (E) any insertions, omissions or other variations, notations, legends or endorsements permitted under Section 2.02 hereof and applicable to such Note. If the Company Order also specifies that the Trustee must deliver such Note to any Holder or the Depositary, the Trustee will promptly deliver such Note in accordance with such Company Order. The Trustee may appoint an authenticating agent. If the Trustee appoints an authenticating agent and such authenticating agent is reasonably acceptable to the Company, such authenticating agent may authenticate a Note whenever the Trustee may authenticate such Note. For purposes of this provision, each reference in this Indenture to authentication by the Trustee will be deemed to include authentication by an authenticating agent, and an authenticating agent will have the same rights to deal with the Company as the Trustee would have if it were performing the duties that the authenticating agent was validly appointed to undertake.
Section 2.06.Registrar, Paying Agent and Conversion Agent.
(a)General. The Company will maintain an office or agency in the continental United States where Notes may be presented for registration of transfer or for exchange (the “Registrar”), an office or agency where the Notes may be presented for payment, repurchase or redemption (the “Paying Agent”), an office or agency where the Notes may be presented for conversion (the “Conversion Agent”) and an office or agency where notices and demands to, or upon, the Company with respect to the Notes and this Indenture (other than the type contemplated by ‎Section 15.14) may be served.

The Registrar will keep a register for the recordation of, and will record, the names and addresses of Holders, the Notes held by each Holder and the transfer, exchange, repurchase, redemption and conversion of Notes (the “Register”). Absent manifest error, the entries in the Register will be conclusive and the parties may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Holder hereunder for all purposes of this Indenture. The Register will be in written form or in any form capable of being converted into written form within a reasonably prompt period of time. The Company may have one or more registrars, one or more paying agents, one or more conversion agents and one or more places where notices and demands to, or upon, the Company with respect to the Notes and this Indenture may be served. Before appointing any Registrar, Paying Agent or Conversion Agent that is not otherwise a party to this Indenture, the Company will enter into an appropriate agency agreement with such Registrar, Paying Agent or Conversion Agent, as the case may be, which agency agreement will implement the provisions of this Indenture that relate to such replacement or additional registrar, paying agent or conversion agent, as the case may be. The term Registrar includes any additional registrars named pursuant to this Indenture. The term Paying Agent includes any additional paying agent named pursuant to this Indenture. The term Conversion Agent includes any additional conversion agent named pursuant to this Indenture. Upon the occurrence of any Event of Default under

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Section 6.01(a)(xiv) or 6.01(a)(xv) with respect to the Company, the Trustee shall be the Paying Agent.

(b)Initial Designations. The Company initially appoints the Trustee as each of the Registrar, the Paying Agent, and the Conversion Agent, and the Notes initially may be presented for registration of transfer or for exchange, payment, repurchase, redemption and conversion to the Trustee, in its capacity as the Registrar, Paying Agent or Conversion Agent, as the case may be, at the Corporate Trust Office. Notices and demands to, or upon, the Company with respect to the Notes and this Indenture may be served at the Corporate Trust Office.
(c)Removal, Resignation and Replacement. The Company may remove any Registrar, Paying Agent or Conversion Agent by delivering written notice to the Trustee and to such Registrar, Paying Agent or Conversion Agent; provided, however, that no such removal will become effective unless (i) after such removal, at least one Registrar, Paying Agent and Conversion Agent will remain; (ii) a successor has accepted appointment as Registrar, Paying Agent or Conversion Agent, as the case may be, the Company and such successor have entered into an agency agreement in accordance with Section 2.06(a) hereof, and the Company has delivered written notice of such appointment and a copy of such agency agreement to the Trustee, or (iii) the Company has delivered written notice to the Trustee that the Trustee will serve as the successor Registrar, Paying Agent or Conversion Agent, as the case may be, in accordance with Section 2.06(d) hereof; and provided, further, that the right to effect any such change or removal in no way relieves the Company of its obligation to maintain a Registrar, Paying Agent and Conversion Agent in the continental United States. The Company may also change the place where notices and demands to, or upon, the Company with respect to the Notes and this Indenture may be served, or reduce the number of such places; provided, however, that the right to effect any such change or reduction in no way relieves the Company of its obligation to maintain a place in the continental United States where notices and demands to, or upon, the Company with respect to the Notes and this Indenture may be served.

In addition, the Registrar, Paying Agent or Conversion Agent may resign at any time by delivering written notice of such resignation to each of the Company and the Trustee.

(d)Failure to Maintain an Office or Agency. If the Company fails to maintain in the continental United States, a Registrar, Paying Agent, Conversion Agent or place where notices and demands to, or upon, the Company with respect to the Notes and this Indenture may be served, the Trustee will act as the Registrar, Paying Agent, Conversion Agent, or place, as the case may be, and the office where the Notes may be presented for registration of transfer or for exchange, presented for payment, repurchase or redemption or surrendered for conversion, or place where notices and demands to, or upon, the Company with respect to the Notes and this Indenture may be served, as the case may be, will be the Corporate Trust Office.

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In each such case, the Trustee will be entitled to compensation for such action pursuant to Section 7.06 hereof.
(e)Notices. Promptly upon the effectiveness of any removal or appointment of a Registrar, Paying Agent or Conversion Agent, or upon any change in the location of the office of any Registrar, Paying Agent or Conversion Agent, or of the place where notices and demands to, or upon, the Company with respect to the Notes and this Indenture may be served, the Company will deliver to each Holder notice of such removal, appointment or change in location, as the case may be, which notice will include a brief description of the removal, appointment or change in location, as the case may be, and list the name and address of each continuing (and newly appointed, if applicable) Registrar, Paying Agent and Conversion Agent and place where notices and demands to, or upon, the Company with respect to the Notes and this Indenture may be served.
Section 2.07.Money and Securities Held in Trust.

Except as otherwise provided herein, by no later than 10:00 a.m., New York City time, on each due date for a payment on any Note, the Company will deposit with the Paying Agent an amount of money in immediately available funds sufficient to make such payment when due.

The Company will require that each Paying Agent (other than the Trustee, if the Trustee is a Paying Agent) agree in writing that it will (i) segregate all money and securities it holds for making payments with respect to the Notes; (ii) hold such money and securities in trust for the benefit of Holders; and (iii) notify the Trustee, in writing, as promptly as practicable, if the Company defaults in making any payment on the Notes.

If any such default has occurred and is continuing, the Paying Agent will, upon receiving a written request from the Trustee, forthwith pay to the Trustee all of the money and securities it holds in trust. In addition, at any time, the Company may require a Paying Agent to pay all money and securities that it holds for making payments with respect to the Notes to the Trustee and to account for any money and securities it has disbursed. After delivering all of such money and securities to the Trustee pursuant to this Section 2.07, the Paying Agent (in its capacity as such) will have no further liability for such money and securities.

Section 2.08.Holder Lists.

The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Company will furnish to the Trustee, (i) within five Business Days after each Regular Record Date, a list of the names and addresses of Holders as of such Regular Record Date, and (ii) at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of such request, a list of the names and addresses of Holders as of no more than 15 days immediately prior to the date such list is furnished, in each case, in such form as the Trustee may reasonably require.

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Section 2.09.Transfer and Exchange.
(a)Provisions Applicable to All Transfers and Exchanges.
(i)Subject to the restrictions set forth in this ‎Section 2.09, Definitive Notes and beneficial interests in Global Notes may be transferred or exchanged from time to time as desired, and each such transfer or exchange will be noted by the Registrar in the Register.
(ii)All Notes issued upon any registration of transfer or exchange in accordance with this Indenture will be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer or exchange.
(iii)No service charge will be imposed on any Holder of a Definitive Note or any owner of a beneficial interest in a Global Note for any exchange or registration of transfer, but each of the Company, the Trustee or the Registrar may require such Holder or owner of a beneficial interest to pay a sum sufficient to cover any transfer tax, assessment or other governmental charge imposed in connection with such registration of transfer or exchange.
(iv)Unless the Company specifies otherwise, none of the Company, the Trustee, the Registrar or any co-registrar will be required to exchange or register a transfer of any Note (i) surrendered for conversion, except to the extent that any portion of such Note has not been surrendered for conversion, (ii) subject to a Fundamental Change Repurchase Notice validly delivered pursuant to Section 3.01 hereof, except to the extent any portion of such Note is not subject to a Fundamental Change Repurchase Notice or the Company fails to pay the applicable Fundamental Change Repurchase Price when due or (iii) after the Company has delivered a Redemption Notice pursuant to Section 11.02 hereof, except to the extent the Company fails to pay the applicable Redemption Price when due.
(v)None of the Trustee, the Registrar or the Conversion Agent will have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on Transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(b)In General; Transfer and Exchange of Beneficial Interests in Global Notes. So long as the Notes are eligible for book-entry settlement with the

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Depositary (unless otherwise required by law and except to the extent required by Section 2.09(c) hereof):
(i)all Notes will be represented by one or more Global Notes;
(ii)every transfer and exchange of a beneficial interest in a Global Note will be effected through the Depositary in accordance with the Applicable Procedures and the provisions of this Indenture (including the restrictions on Transfer set forth in ‎Section 2.10 hereof); and
(iii)each Global Note may be transferred only as a whole and only (A) by the Depositary to a nominee of the Depositary, (B) by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or (C) by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.
(c)Transfer and Exchange of Global Notes.
(i)Notwithstanding any other provision of this Indenture, each Global Note will be exchanged for Definitive Notes if the Depositary delivers notice to the Company that:
(A)either:
(1)the Depositary is unwilling or unable to continue to act as Depositary; or
(2)the Depositary is no longer registered as a clearing agency under the Exchange Act.
(B)and , in each case, the Company promptly delivers a copy of such notice to the Trustee and the Company fails to appoint a successor Depositary within 90 days after receiving notice from the Depositary.
(ii)In addition:
(A)if an Event of Default has occurred and is continuing, any owner of a beneficial interest in a Global Note may exchange such beneficial interest for Definitive Notes by delivering a written request to the Company, the Registrar and the Trustee; or
(B)at any time, the Company may, in its sole discretion, at the request of the owner of a beneficial interest in a Global Note, permit the exchange of such owner’s beneficial interest, by delivering a written request to the Registrar, the Trustee and the owner of such beneficial interest.

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In each such case, (1) each Global Note will be deemed surrendered to the Trustee for cancellation, (2) the Trustee will promptly cancel each such Global Note in accordance with the Applicable Procedures, (3) the Company, (x) in accordance with Section 2.05 hereof, will promptly execute, for each beneficial interest in each Global Note so cancelled, an aggregate principal amount of Definitive Notes equal to the aggregate principal amount of such beneficial interest, registered in such name and authorized denominations as the Depositary specifies, and bearing such legends as such Definitive Notes are required to bear under ‎Section 2.02 and ‎Section 2.10 hereof, and, (y) as provided in ‎Section 2.05(c) hereof, will promptly deliver to the Trustee such Definitive Notes and a Company Order including the information specified in ‎Section 2.05(c) hereof with respect to such Definitive Notes, and (4) the Trustee, upon receipt of such Definitive Notes and such Company Order, in accordance with ‎Section 2.05 hereof, will promptly authenticate, and deliver to the Holder specified in such Company Order, such Definitive Notes.

(d)Transfer and Exchange of Definitive Notes. If Definitive Notes are issued, a Holder may:
(i)transfer a Definitive Note by: (A) surrendering such Definitive Note for registration of transfer to the Registrar, together with any endorsements or instruments of transfer reasonably required by any of the Company, the Trustee and the Registrar; (B) if such Definitive Note is a Restricted Note, delivering any documentation that the Company may reasonably require to ensure that such transfer complies with ‎Section 2.10 hereof and any applicable securities laws; and (C) satisfying any other requirements for such transfer set forth in this ‎Section 2.09 and ‎Section 2.10 hereof. Upon the satisfaction of conditions ‎(A), ‎(B) and ‎(C), (1) the Company, (x) in accordance with ‎Section 2.05 hereof, will promptly execute a new Definitive Note, in the name of the designated transferee, having an aggregate principal amount equal to that of the transferred Definitive Note and bearing such legends as such Definitive Note is required to bear under Sections 2.02 and 2.10 hereof, and (y) as provided in ‎Section 2.05(c) hereof, will promptly deliver to the Trustee such Definitive Note and a Company Order including the information specified in ‎Section 2.05(c) with respect to such Definitive Note, and (2) the Trustee, upon receipt of such Definitive Note and such Company Order, will promptly, in accordance with ‎Section 2.05 hereof, authenticate, and deliver to the Holder specified in such Company Order, such Definitive Note;
(ii)exchange one or more Definitive Notes for one or more other Definitive Notes of any authorized denominations, and in aggregate principal amount equal to the aggregate principal amount of the one or more Definitive Notes to be exchanged, by surrendering such one or more Definitive Notes, together with any endorsements or instruments of transfer reasonably required by any of the Company, the Trustee and the Registrar, at any office or agency maintained by the Company for such purposes pursuant to Section 2.06 hereof. Whenever a Holder so surrenders one or more Definitive Notes for exchange, (1) the Company, (x) in accordance with ‎Section 2.05 hereof, will promptly execute one or more new Definitive Notes, each in the name of such Holder, in the

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authorized denomination or denominations that such Holder requested (which authorized denomination or authorized denominations, as the case may be, must, in aggregate, equal the aggregate principal amount of the one or more Definitive Notes to be exchanged), and bearing a unique registration number not contemporaneously outstanding and such legends as such Definitive Note is required to bear under Sections 2.02 and 2.10 hereof, and (y) as provided in ‎Section 2.05(c) hereof, will promptly deliver to the Trustee each such Definitive Note and a Company Order including the information specified in ‎Section 2.05(c) with respect to each such Definitive Note, and (2) the Trustee, upon receipt of each such Definitive Note and such Company Order, will promptly, in accordance with ‎Section 2.05 hereof, authenticate, and deliver to the Holder specified in such Company Order, each such Definitive Note; and
(iii)if then permitted by the Applicable Procedures, transfer or exchange a Definitive Note for a beneficial interest in a Global Note by (A) surrendering such Definitive Note for registration of transfer or exchange, together with any endorsements or instruments of transfer reasonably required by any of the Company, the Trustee and the Registrar, at any office or agency maintained by the Company for such purposes pursuant to Section 2.06 hereof; (B) if such Definitive Note is a Restricted Note, delivering any documentation that any of the Company requires to ensure that such transfer complies with ‎Section 2.10 hereof and any applicable securities laws; (C) satisfying any other requirements for such transfer set forth in this ‎Section 2.09 and ‎Section 2.10 hereof; and (D) providing written instructions to the Trustee to make an adjustment in its books and records with respect to the applicable Global Note to reflect an increase in the aggregate principal amount of the Notes represented by such Global Note, which instructions will contain information regarding the Depositary account to be credited with such increase. Upon the satisfaction of conditions (A), (B), (C) and (D), the Trustee (1) will promptly cancel such Definitive Note and, (2) will promptly cause the aggregate principal amount of Notes represented by such Global Note to be increased by the aggregate principal amount of such Definitive Note, and credit, or cause to be credited, the account of the Person specified in the instructions provided by the exchanging Holder in an amount equal to the aggregate principal amount of such Definitive Note, in each case, in accordance with the Applicable Procedures. If at the time of such exchange, a Depositary has been appointed but no Global Notes are then outstanding, the Company, (x) in accordance with Section 2.05 hereof, will promptly execute and deliver to the Trustee, a new Global Note registered in the name of the Depositary or a nominee of the Depositary, as the case may be, having the appropriate aggregate principal amount, and bearing such legends as such Global Note is required to bear under Sections 2.02 and 2.10 hereof, and (y) as provided in ‎Section 2.05(c) hereof, will promptly deliver to the Trustee such Global Note and a Company Order including the information specified in ‎Section 2.05(c) with respect to such Global Note, and (2) the Trustee, upon receipt of such Global Note and such Company Order, will promptly, in accordance with ‎Section 2.05 hereof, authenticate, and deliver to the Depositary, its nominee, or a custodian of the Depositary or its nominee, as the case may be, such Global Note.

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Section 2.10.Transfer Restrictions.
(a)Restricted Notes.
(i)General. Each Note (and every security issued in exchange therefor or substitution thereof), that bears, or that is required under this ‎Section 2.10 to bear, the Restricted Notes Legend (which, for the avoidance of doubt, will not include the Exchange Notes) will be deemed a “Restricted Note,” and will be subject to the restrictions on transfer set forth in this Indenture unless such restrictions on transfer are eliminated or otherwise waived by written consent of the Company and notified to the Trustee in writing, and each Holder of a Restricted Note, by such Holder’s acceptance of such Restricted Note, will be deemed to be bound by the restrictions on Transfer applicable to such Note.
(ii)When Restrictions Apply. Except as provided elsewhere in this Indenture (including clause ‎(iii) of this ‎Section 2.10(a)), until the Free Trade Date of a Note, every certificate evidencing such Note (and every security issued in exchange therefor or substitution thereof), which, for the avoidance of doubt, will not include the Exchange Notes, will bear the Restricted Notes Legend unless:
(A)such Note is being Transferred to a Person (other than (x) the Company or (y) an “affiliate” (as defined in Rule 144) of the Company) pursuant to a registration statement that was effective under the Securities Act at the time of such Transfer; or
(B)such Note is being Transferred to a Person (other than (x) the Company or (y) an “affiliate” (as defined in Rule 144) of the Company) pursuant to an available exemption from the registration requirements of the Securities Act (including Rule 144) and, after such Transfer, such Note will no longer constitute “a restricted security” (within the meaning of Rule 144),

and, in case (B), the Holder effecting such Transfer delivers to the Trustee, the Company and the Registrar any documents or evidence reasonably required pursuant to this Indenture (including clause (iii) of this ‎Section 2.10(a)). For the avoidance of doubt, the Exchange Notes shall not constitute Restricted Notes and shall not bear the Restricted Notes Legend. The Exchange Notes shall be deemed Freely Tradeable and shall not be subject to the restrictions set forth in this Section 2.10.

(iii)Termination of Transfer Restrictions; Removal of Restricted Notes Legend.
(A)Except as otherwise provided in this Indenture (including clause ‎(B) of this ‎Section 2.10(a)(iii)), if a Holder requests that the Company remove the Restricted Notes Legend from a Note that is a Restricted Note, the Restricted Notes Legend will not be removed from such Restricted Note unless such Holder delivers, (1) to each of the Company and the Registrar a transfer certificate in the form attached as

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Exhibit B hereto and, (2) to each of the Company, the Registrar and the Trustee, any evidence that the Company may reasonably require that (x) neither the Restricted Notes Legend nor the Transfer restrictions set forth therein are required to ensure that Transfers of such Restricted Note will comply with applicable law and (y) after such Transfer, such Restricted Note will not be a “restricted security” (within the meaning of Rule 144); provided, however, that, upon provision of such required transfer certificate and evidence, the Company, the Trustee and the Registrar will permit such Restricted Note to be exchanged or Transferred in accordance with Section 2.10(a)(ii)(A) or (B) for one or more new Definitive Notes or beneficial interests in a Global Note, of like tenor and aggregate principal amount, that do/does not bear the Restricted Notes Legend in accordance with Section 2.09. In addition, upon receipt by the Trustee and the Registrar of a Company Order specifying that a Note need not bear the Restricted Notes Legend to comply with applicable law, each of the Trustee and the Registrar will permit such Note to be exchanged for one or more new Notes, of like tenor and aggregate principal amount, that do not bear the Restricted Notes Legend.
(B)At any time on or after the Free Trade Date with respect to a Restricted Note, the Company shall de-legend such Note by:
(1)providing written notice to the Trustee and the Registrar that the Free Trade Date has occurred and instructing the Trustee to remove the Restricted Notes Legend from such Notes;
(2)providing written notice to each Holder of any of such Notes, which notice will state that the Restricted Notes Legend has been removed from the applicable Note and include the unrestricted CUSIP that will thereafter apply to such applicable Note;
(3)providing written notice to the Trustee and the Depositary (in the case of a Global Note) that the CUSIP number for each such Note will be changed to an unrestricted CUSIP number, which unrestricted CUSIP number will be listed in such notice; and
(4)in the case of a Global Note, complying with any Applicable Procedures for de-legending.
(b)Restricted Stock.
(i)General. If any shares of Common Stock are issued upon conversion of any Restricted Notes or otherwise in respect of any Restricted Notes, and such shares of Common Stock are issued prior to the relevant Free

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Trade Date, then any certificate representing such shares of Common Stock will, upon such issuance, bear the Restricted Stock Legend, unless such requirement is eliminated or otherwise waived by written consent of the Company.
(ii)When Restrictions Apply. Except as provided elsewhere in this Indenture (including clause (iii) of this Section 2.10(b)), until the relevant Free Trade Date, every certificate evidencing any shares of Common Stock issued upon conversion of any Restricted Notes or otherwise in respect of any Restricted Notes will bear the Restricted Stock Legend unless:
(A)such shares are being Transferred to a Person (other than (x) the Company or (y) an “affiliate” (as defined in Rule 144) of the Company) pursuant to a registration statement that was effective under the Securities Act at the time of such Transfer; or
(B)such shares are being Transferred to a Person (other than (x) the Company or (y) an “affiliate” (as defined in Rule 144) of the Company) pursuant to an available exemption from the registration requirements of the Securities Act (including Rule 144) and, after such Transfer, such shares will no longer constitute “restricted securities” (within the meaning of Rule 144),

and, in case (B), the Person effecting such Transfer delivers to the Company and the Transfer Agent any documents or evidence reasonably required pursuant to this Indenture (including clause (iii) of this Section 2.10(b)).

(iii)Termination of Transfer Restrictions.
(A)Except as otherwise provided in this Indenture (including clause (B) of this Section 2.10(b)(iii)), if a holder of any shares of Common Stock that contain the Restricted Stock Legend requests that the Company remove the Restricted Stock Legend from such shares, the Restricted Stock Legend will not be removed from such shares unless such holder delivers to each of the Company and the Transfer Agent any evidence that the Company or the Transfer Agent may reasonably require that (x) neither the Restricted Stock Legend nor the Transfer restrictions set forth therein are required to ensure that Transfers of such shares will comply with applicable law and (y) after such Transfer, such shares will not be “restricted securities” (within the meaning of Rule 144); provided, however, that, upon provision of such evidence, the Company shall cause the Restricted Stock Legend to be removed from such shares; provided, further, that such evidence shall not be required in connection with any Transfer of such shares to a Person (other than the Company or an “affiliate” (as defined in Rule 144) of the Company) pursuant to a registration statement that was effective under the Securities Act at the time of such Transfer and, upon such Transfer, the Company shall cause the Restricted Stock Legend to be removed from such shares.

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(B)On the Free Trade Date with respect to any shares of Common Stock that bear the Restricted Stock Legend, the Company shall cause the Restricted Stock Legend to be removed from such shares.
Section 2.11.Replacement Notes.

If (a)(i) a mutilated Note is surrendered to the Registrar or (ii) the Holder of a Note claims that such Note has been lost, destroyed or stolen and provides the Company and the Trustee with (A) evidence of such loss, theft or destruction that is reasonably satisfactory to the Company and the Trustee and (B) any amount or kind of security or indemnity that either of the Company or the Trustee reasonably request to protect itself from any loss that it may suffer upon replacement of such Note, and, in either case, (b) such Holder satisfies any other reasonable requirements of the Trustee, including the payment of any tax or other governmental charge that may be imposed in connection with the replacement of such Note, then, unless the Company or the Trustee receives notice that such Note has been acquired by a bona fide purchaser, the Company will, in accordance with Section 2.05 hereof, promptly execute and deliver to the Trustee, and the Trustee, upon receipt of a Company Order, in accordance with Section 2.05 hereof, and the documents required by Sections ‎15.03 and ‎15.04 hereof, will promptly authenticate and deliver, in the name of such Holder, a replacement Note having the same aggregate principal amount as the Note that was mutilated or claimed to be lost, destroyed or stolen, bearing any restrictive legends required by Section 2.02 or 2.10 hereof and with a certificate number not contemporaneously outstanding.

Every new Note issued pursuant to this ‎Section 2.11 in exchange for any mutilated Note, or in lieu of any destroyed, lost or stolen Note, will constitute an original contractual obligation of the Company and any other obligor upon the Notes, regardless of whether the mutilated, destroyed, lost or stolen Note will be at any time enforceable by anyone, and will be entitled to all benefits of (and will be subject to all the limitations set forth in) this Indenture equally and proportionately with any and all other Notes duly issued hereunder.

Section 2.12.Temporary Notes. Until Definitive Notes are ready for delivery, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee will, upon written request of the Company, authenticate and deliver temporary Notes (printed or lithographed) (“Temporary Notes”). Temporary Notes will be issuable in any authorized denomination, and substantially in the form of Definitive Notes, but with such omissions, insertions and variations as may be appropriate for Temporary Notes, all as may be determined by the Company. Every such Temporary Note will be executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially the same manner, and with the same effect, as the Definitive Notes. Without unreasonable delay the Company will prepare, execute and deliver to the Trustee or such authenticating agent Definitive Notes (other than any Global Note) and thereupon any or all Temporary Notes (other than any Global Note) may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 2.06 hereof and the Trustee or such authenticating agent will authenticate and deliver in exchange for such Temporary Notes Definitive Notes

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having an aggregate principal amount equal to such Temporary Notes. Such exchange will be made by the Company at its own expense and without any charge therefor. Until so exchanged, the Temporary Notes will, in all respects, be entitled to the same benefits and subject to the same limitations under this Indenture as Definitive Notes authenticated and delivered hereunder.

Section 2.13.Cancellation. At any time, the Company may deliver Notes to the Trustee for cancellation. Whenever any Note is surrendered to the Registrar, Conversion Agent or Paying Agent for registration of transfer, exchange, conversion, repurchase, redemption or payment, the Registrar, Conversion Agent or Paying Agent, as the case may be, will promptly forward such Note to the Trustee. Upon receipt of any such Note, the Trustee, in its customary manner, will promptly cancel and dispose of such Note. The Company may not issue new Notes to replace Notes that it has repurchased, redeemed, paid or delivered to the Trustee for cancellation or that a Holder has converted pursuant to ‎Article 10 hereof.
Section 2.14.Outstanding Notes. At any time, Notes outstanding are limited to all Notes authenticated by the Trustee except (i) those cancelled by it, (ii) those delivered to it for cancellation and (iii) those deemed not outstanding under Sections 3.03, 4.15 or ‎10.02 or ‎Article 11 hereof and clauses (a) and (b) of this Section 2.14.
(a)If a Note is replaced pursuant to ‎Section 2.11 hereof, such Note will cease to be outstanding at the time of its replacement unless the Trustee and the Company receive proof satisfactory to them that such Note is held by a bona fide purchaser.
(b)In addition, if the Company, any other obligor or an Affiliate of the Company or an Affiliate of such other obligor holds a Note, such Note will be disregarded and deemed not to be outstanding for purposes of determining whether the Holders of the requisite aggregate principal amount of Notes have given or concurred in any request, demand, authorization, direction, notice, consent, waiver or other action hereunder except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Trust Officer of the Trustee assigned to this transaction has been notified in writing to be so owned shall be so disregarded. Subject to the foregoing, only Notes outstanding at the time of any such determination will be considered in such determination (including determinations pursuant to Article 6 and Article 9 hereof).
Section 2.15.Persons Deemed Owners. Prior to due presentment of a Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Note is registered in the Register as the owner of such Note for the purpose of receiving the payment of the principal, Fundamental Change Repurchase Price or Redemption Price of, and interest, if any, on, such Note, for the purpose of conversion of such Note and for all other purposes whatsoever with respect to such Note, and none of the Company, the Trustee or any agent of the Company or the Trustee will be affected by any notice to the contrary.

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Section 2.16.Repurchases.The Company may, from time to time, repurchase Notes in open market purchases or in negotiated transactions without delivering prior notice to Holders.
Section 2.17.CUSIP and ISIN Numbers.
(a)Whenever “CUSIP” and “ISIN” numbers are generally in use, the Company will use CUSIP and ISIN numbers with respect to the Notes, which CUSIP and ISIN numbers (i) for Restricted Notes, will be restricted numbers, and (ii) for Notes that are not Restricted Notes, will be unrestricted numbers. Whenever the Company uses CUSIP and ISIN numbers, the Trustee will also use CUSIP and ISIN numbers in each notice it delivers to the Holders; provided that neither the Company nor the Trustee will be responsible for any defect in any CUSIP or ISIN number that appears on any Note, check, advice of payment or notice, including any notice delivered pursuant to Section 11.03. The Company will promptly notify the Trustee in writing in the event of any change in the CUSIP or ISIN numbers.
(b)In addition, if, when any shares of Common Stock are issued upon conversion of a Note or otherwise in respect of a Note, CUSIP and ISIN numbers are generally in use, the Company will use CUSIP and ISIN numbers with respect to such shares of Common Stock, which CUSIP and ISIN numbers (i) for shares of Common Stock to which the restrictions on Transfer set forth in the Restricted Stock Legend apply, will be restricted numbers, and (ii) for shares of Common Stock to which the restrictions on Transfer set forth in the Restricted Stock Legend do not apply, will be unrestricted numbers.
(c)Whenever any of the CUSIP or ISIN numbers with respect to the Notes or the shares of Common Stock issuable upon conversion of the Notes or otherwise in respect of the Notes change, cease to be used, or begin to be used, the Company will deliver prompt written notice of such change, cessation, or beginning to each of the Trustee and the Holders.
Section 2.18.Contingent Payment Debt Instrument Status. Each Holder, by reason of its purchase of the Notes, agrees (a) to treat the Notes as indebtedness subject to the U.S. Treasury Regulations governing contingent payment debt instruments, (b) to report original issue discount and interest on the Notes in accordance with the Company’s determination of both the “comparable yield” and “projected payment schedule” for the Notes and (c) to be bound by the Company’s application of the U.S. Treasury Regulations that govern contingent payment debt instruments. For this purpose, the “comparable yield” and “projected payment schedule” for the Notes may be obtained by contacting the Company at the address set forth in Section 15.02 hereof.
Article 3
REPURCHASE AT THE OPTION OF THE HOLDER
Section 3.01.Repurchase at Option of Holders Upon a Fundamental Change.

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(a) If a Fundamental Change occurs at any time, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to $1,000 or an integral multiple of $1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 Business Days or more than 35 Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay, on or before such Interest Payment Date, the full amount of accrued and unpaid interest to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this‎ ‎Article 3.

(b)Repurchases of Notes under this ‎Section 3.01 shall be made, at the option of the Holder thereof, upon:
(i)delivery to the Paying Agent by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form titled “Option of Holder to Elect Purchase” in Exhibit A hereto, if the Notes are Definitive Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii)delivery of the Notes, if the Notes are Definitive Notes, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the Applicable Procedures, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor.

The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:

(i)in the case of Definitive Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii)the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii)that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture;

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provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures.

Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this ‎Section 3.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a notice of withdrawal to the Paying Agent in accordance with‎ Section 3.02.

The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or notice of withdrawal thereof.

(c)On or before the fifth Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Definitive Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the Applicable Procedures. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i)the events causing the Fundamental Change;
(ii)the effective date of the Fundamental Change;
(iii)the last date on which a Holder may exercise the repurchase right pursuant to this‎ ‎Article 3;
(iv)the Fundamental Change Repurchase Price;
(v)the Fundamental Change Repurchase Date;
(vi)the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii)if applicable, the Conversion Rate and any adjustments to the Conversion Rate;
(viii)that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the

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Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix)the procedures that Holders must follow to require the Company to repurchase their Notes.

No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this‎ Section 3.01.

At the Company’s request, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company; provided, further that the Company shall have delivered to the Trustee, at least five Business Days before the Fundamental Change Company Notice is required to be given to the Holders (or such shorter period agreed to by the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and attaching the form of Fundamental Change Company Notice and including the information required by Section 3.01(c). Neither the Trustee nor the Paying Agent shall be responsible for determining if a Fundamental Change has occurred or for delivering a Fundamental Change Company Notice to Holders or for the content of any Fundamental Change Company Notice.

(d)Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent will promptly return to the respective Holders thereof any Definitive Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Section 3.02.Withdrawal of Fundamental Change Repurchase Notice. A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the Corporate Trust Office of the Paying Agent in accordance with this ‎Section 3.02 at any time prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:
(a)the principal amount of the Notes with respect to which such notice of withdrawal is being submitted,

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(b)if Definitive Notes have been issued, the certificate number of the Note in respect of which such notice of withdrawal is being submitted, and
(c)the principal amount, if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;

provided, however, that if the Notes are Global Notes, the notice must comply with Applicable Procedures.

Section 3.03.Deposit of Fundamental Change Repurchase Price. (a) The Company shall deposit with the Trustee (or other Paying Agent appointed by the Company, or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 2.07) on or prior to 10:00 a.m., New York City time, on the Fundamental Change Repurchase Date an amount of money sufficient to repurchase all of the Notes to be repurchased at the appropriate Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date) will be made on the later of (i) the Fundamental Change Repurchase Date (provided the Holder has satisfied the conditions in Section 3.01) and (ii) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by Section 3.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Register; provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(b)If by 10:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to make payment on all the Notes or portions thereof that are to be repurchased on such Fundamental Change Repurchase Date, then, with respect to the Notes that have been properly surrendered for repurchase and have not been validly withdrawn, (i) such Notes will cease to be outstanding, (ii) interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent) and (iii) all other rights of the Holders of such Notes will terminate (other than the right to receive the Fundamental Change Repurchase Price and, if applicable, accrued and unpaid interest).
(c)Upon surrender of a Note that is to be repurchased in part pursuant to Section 3.01, the Company shall execute and the Trustee shall authenticate and deliver to the Holder a new Note in an authorized denomination equal in principal amount to the unrepurchased portion of the Note surrendered.

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Section 3.04.Covenant to Comply with Applicable Laws Upon Repurchase of Notes. In connection with any repurchase offer, the Company shall, if required:
(a)comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act;
(b)file a Schedule TO or any other required schedule under the Exchange Act; and
(c)otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes;

in each case, so as to permit the rights and obligations under this ‎Article 3 to be exercised in the time and in the manner specified in this ‎Article 3.

Article 4
COVENANTS
Section 4.01.Payment of Notes. The Company will pay or cause to be paid the principal of, Fundamental Change Repurchase Price or Redemption Price for, and any accrued and unpaid interest on, the Notes on the dates and in the manner required under this Indenture. Any principal of, Fundamental Change Repurchase Price or Redemption Price for, or interest on, a Note will be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds, as of 10:00 a.m. New York City time on the due date, money deposited by the Company in immediately available funds and designated for, and sufficient to pay, such principal, Fundamental Change Repurchase Price, Redemption Price or interest then due. To the extent lawful, the Company will also pay Default Interest (including post-petition interest in any proceeding under any Bankruptcy Law) on any Defaulted Amounts in accordance with Section 2.04 hereof.
Section 4.02.144A Information.Whenever the Company is not subject to Section 13 or Section 15(d) of the Exchange Act, if any Notes or shares of Common Stock issuable upon the conversion of the Notes constitute “restricted securities” within the meaning of Rule 144, the Company will, upon the request of a Holder or Beneficial Owner of the Notes, or a holder or Beneficial Owner of the Common Stock issuable upon the conversion of the Notes, promptly furnish or cause to be furnished to the applicable Holder, Beneficial Owner, or any prospective purchaser designated by the applicable Holder or Beneficial Owner, of the Notes, or any holder, Beneficial Owner, or any prospective purchaser designated by the applicable holder or Beneficial Owner, of the Common Stock, as the case may be, all of the information that a prospective purchaser of the Notes or the Common Stock, as the case may be, is required to receive under Rule 144A(d)(4) of the Securities Act for the Notes or shares of Common Stock, as the case may be, to be resold to such prospective purchaser pursuant the exemption from registration provided by Rule 144A.
Section 4.03.Reports.

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(a)The Company will furnish to the Trustee and the Holders, within 15 calendar days after it is required to file the same with the SEC (after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act (or any successor rule)), all the quarterly and annual reports and the information, documents and other reports, if any, that it is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. Any such report, information or document that the Company files with the SEC through the EDGAR system (or any successor thereto) will be deemed to be delivered to the Trustee and the Holders for the purposes of this ‎Section 4.03 at the time of such filing through the EDGAR system (or such successor thereto); provided, however, that the Trustee shall have no obligation or responsibility to determine whether the Company is required to file any report or other information with the SEC or the Trustee, whether the Company’s information is available on the EDGAR system (or any successor thereto) or whether the Company has otherwise delivered any notice or report in accordance with the requirements specified in this ‎Section 4.03.
(b)The Company will schedule a conference call to be held not more than 15 Business Days following the release of each quarterly and annual report referred to in Section 4.03(a), but after the release of any “earnings release” corresponding to the period of such report, at which the Company will make available at least one member of its senior management to discuss the information contained in such report on such conference call. The Company will notify Holders about such call and provide them with call-in information concurrently with and in the same manner as each delivery of such reports.
(c)If the Company has designated any Subsidiaries as Unrestricted Subsidiaries, then the Company’s quarterly and annual financial information required by the second preceding paragraph will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the its Unrestricted Subsidiaries.
(d)Notwithstanding anything to the contrary, the Company may elect that the sole remedy for any Event of Default arising out of a Default under this ‎Section 4.03 will be the accrual of special interest (“Special Interest”) on the Notes for the first 180 days at a rate of 0.25% per annum for the first 90 days of the continuance of such Event of Default and 0.50% per annum thereafter. The Notes will be subject to acceleration if such Event of Default is not cured by the 181st day after the date of its first occurrence. Any Special Interest that accrues on a Note pursuant to this Section ‎4.03(d) will be payable on the same dates and in the same manner as the stated interest on such Note. For the avoidance of doubt, any Special Interest that accrues on a Note will be in addition to the stated interest that accrues on such Note and in addition to any Additional Interest that accrues on such Note.
(e)Delivery of such quarterly and annual reports, and such other documents, information and other reports to the Trustee will be for informational

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purposes only, and the Trustee’s receipt of such will not constitute actual or constructive notice or knowledge of any information contained therein or determinable from information contained therein, including the Company’s or any Guarantor’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely conclusively on an Officers’ Certificate).
Section 4.04.Additional Interest.
(a)General. If, at any time during the period beginning on, and including, the date that is six months after the Last Original Issue Date of any Note (other than an Exchange Note) and ending on, but not including, the Free Trade Date of such Note, the Company fails to timely file (after giving effect to any grace period provided by Rule 12b-25) any document or report that it is required to file with the SEC pursuant to Sections 13 or 15(d) of the Exchange Act, as applicable (other than current reports on Form 8-K), the Company will pay additional interest (the “Additional Interest”) on the principal amount of such Note. The Additional Interest will accrue from the due date of each such missed filing until the earlier of (i) the Free Trade Date and (ii) the date such failure to file is corrected.

In addition, if any Note, or any shares of Common Stock issued upon the conversion of any Note, is not Freely Tradable at all times on and after the Free Trade Date (or the next succeeding Business Day if the Free Trade Date is not a Business Day) with respect to such Note, then the Company will pay Additional Interest on such Note. Such Additional Interest will accrue on each day during such period on which such Note is not Freely Tradable on and after the Free Trade Date (or the next succeeding Business Day if the Free Trade Date is not a Business Day). The accrual of Additional Interest will be the exclusive remedy available to Holders for the failure of the Notes or the Common Stock issued upon the conversion of the Notes to become Freely Tradable.

In each case, the Additional Interest will be payable on the same dates and in the same manner as the stated interest on the applicable Note and will initially accrue at the rate of 0.25% per annum on the principal amount of such Note. If the Additional Interest accrues for more than 90 consecutive days on any Note, the rate at which the Additional Interest accrues on such Note will increase to 0.50% per annum on the principal amount of such Note beginning on the 91st consecutive day on which it accrues and ending on the last consecutive day on which it continues to accrue.

(b)Notice to Trustee. If the Company is required to pay Additional Interest or Special Interest on any Note, no later than five Business Days prior to the date on which such Additional Interest or Special Interest is scheduled to be paid, the Company will provide to the Trustee (and if the Trustee is not the Paying Agent, to the Paying Agent) an Officers’ Certificate, which Officers’ Certificate will state (i) that the Company is obligated to pay Additional Interest pursuant to this ‎Section 4.04 or Special Interest pursuant to ‎Section 4.03, (ii) the amount of such Additional Interest that the Company is required to pay under this ‎Section 4.04 or Special Interest pursuant to ‎Section 4.03, (iii) the amount of such Additional Interest, or Special Interest that the Company will pay, (iv) the scheduled date on which such

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Additional Interest or Special Interest will be paid to Holders and (v) a direction that the Trustee (or, if the Trustee is not the Paying Agent, the Paying Agent) pay such Additional Interest or Special Interest to the extent it receives funds from the Company to do so, on the scheduled payment date for such Additional Interest. The Trustee will not have any duty or responsibility to any Holder to determine whether any Additional Interest is payable, or, if any Additional Interest or Special Interest is payable, the amount of such Additional Interest or Special Interest that is payable.
Section 4.05.Compliance Certificate.
(a)Annual Compliance Certificate. Within 90 days after the end of each fiscal year of the Company, beginning with the fiscal year ending on December 31, 2021, the Company will deliver to the Trustee and the Collateral Agent an Officers’ Certificate, which Officers’ Certificate will state (i) that the Officers signing such Officers’ Certificate have supervised a review of the activities of the Company and its Subsidiaries with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture during the preceding fiscal year, and (ii) to the knowledge of each of the Officers signing such Officers’ Certificate, (A) whether the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided under this Indenture) or, if one or more Defaults or Events of Default have occurred, what events triggered such Defaults or Events of Default and what actions the Company is taking or proposes to take with respect to such Defaults or Events of Default, and (B) whether any event has occurred and remains in existence by reason of which any payment of the principal of, the Fundamental Change Repurchase Price or the Redemption Price for, or interest on, or any delivery of any of the consideration due upon conversion of, a Note is prohibited, and, if any such event has occurred and remains in existence, a description, in reasonable detail, of such event or events and what actions the Company is taking or proposes to take with respect to such event or events.
(b)Certificate of Default or Event of Default. As soon as possible, and in any event within five Business Days after a Default occurs, the Company will deliver to the Trustee and the Collateral Agent an Officers’ Certificate describing such Default, its status and a description, in reasonable detail, of what action the Company is taking or proposes to take with respect to such Default.
Section 4.06.Restriction on Purchases and Sales by the Company and by Affiliates of the Company. Neither the Company nor any of its Subsidiaries will purchase or otherwise acquire any Notes without canceling such Notes. Any Note or Common Stock issued upon the conversion or exchange of a Note or otherwise in respect of a Note that is repurchased or owned by any affiliate of the Company (as defined under Rule 144) (or any Person who was an affiliate of the Company at any time during the three months immediately preceding) may not be resold by such affiliate (or such Person, as the case may be) unless registered under the Securities Act or resold pursuant to an exemption

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from the registration requirements of the Securities Act in a transaction that results in such Note or Common Stock, as the case may be, no longer being a “restricted security” (as defined under Rule 144).

Section 4.07.Corporate Existence. Subject to ‎Article 5 hereof, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect:
(a)its corporate existence, and the corporate, partnership or other existence of each of its Restricted Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Company or such Restricted Subsidiary, as applicable; and
(b)the rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries;

provided, however, that the Company will not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Subsidiaries, if the Board of Directors determines that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders.

Section 4.08.Par Value Limitation. The Company will not take any action that, after giving effect to any adjustment pursuant to Section ‎10.04 or ‎10.05, would result in the Conversion Price becoming less than the par value of one share of Common Stock.
Section 4.09.Stay, Extension and Usury Laws. The Company and each of the Guarantors covenants that, to the extent that it may lawfully do so, it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of this Indenture; and each of the Company and the Guarantors, to the extent that it may lawfully do so, hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will instead suffer and permit the execution of every such power as though no such law had been enacted.
Section 4.10.Further Instruments and Acts. Upon request of the Trustee or the Collateral Agent, the Company and each of the Guarantors will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the terms of this Indenture.
Section 4.11.Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:

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(a)declare or pay any dividend or make any other payment or distribution on or in respect of the Company’s or any Restricted Subsidiary’s Equity Interests (including any such payment in connection with any merger or consolidation involving such Person), except dividends or distributions payable solely in Equity Interests (other than Disqualified Stock) of the Company or such Restricted Subsidiary and except dividends or distributions payable solely to the Company or any of its Restricted Subsidiaries (and, if such Restricted Subsidiary is not a Wholly Owned Subsidiary, to its other Equity Interest Holders on a pro rata basis with respect to the class of Equity Interests on which such dividend or distribution is made, or on a basis that results in the receipt by the Company or any of its Restricted Subsidiaries of dividends or distributions of greater value than it would receive on a pro rata basis);
(b)purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company;
(c)make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness of the Company or any Guarantor that is (i) Indebtedness that is contractually subordinated to the Notes or to any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries) (“Subordinated Indebtedness”) or (ii) unsecured Indebtedness, except, (x) in each case, payments of interest or principal at the Stated Maturity thereof and (y) in the case of any Existing Indebtedness with a Stated Maturity prior to the Maturity Date, the purchase, repurchase, redemption, defeasance or other acquisition of any such Existing Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition; or
(d)make any Investment other than a Permitted Investment (a “Restricted Investment”)

(all such payments and other actions set forth in these clauses ‎(a) through ‎(d) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:

(i)no Default or Event of Default has occurred and is continuing or would occur after giving effect to such Restricted Payment;
(ii)the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to ‎Section 4.13(a); and
(iii)such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date, is less than the sum, without duplication, of:

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(A)50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the Issue Date to the end of the Company’s most recently completed fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus
(B)100% of the aggregate net cash proceeds received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Company or from the issue or sale of convertible or exchangeable Disqualified Stock of the Company or convertible or exchangeable debt securities of the Company, in each case that have been converted into, settled with or exchanged for Equity Interests of the Company (other than (x) Disqualified Stock or (y) Equity Interests and convertible or exchangeable Disqualified Stock or debt securities sold to a Subsidiary of the Company); plus
(C)to the extent that any Restricted Investment that was made after the Issue Date is sold or otherwise liquidated or repaid, the amount of the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any), to the extent that such return was not otherwise included in the Consolidated Net Income of the Company for such period; plus
(D)to the extent that any Unrestricted Subsidiary of the Company designated as such on or after the Issue Date is redesignated as a Restricted Subsidiary after the Issue Date, the Fair Market Value of the Company’s Restricted Investment (without duplication of amounts that increase the amount available pursuant to the definition of “Permitted Investments” and ‎Section 4.12(b)) in such Restricted Subsidiary as of the date of such redesignation; plus
(E)without duplication of any increase pursuant to this section or that increase the amount available pursuant to the definition of “Permitted Investments” and ‎Section 4.12(b), cash dividends or distributions received by the Company or any Restricted Subsidiary after the Issue Date from an Unrestricted Subsidiary of the Company, to the extent that such dividends or distributions were not otherwise included in the Consolidated Net Income of the Company for such period; plus
(F)to the extent that any Restricted Investment that was made after the date of this Indenture is made in an entity that subsequently becomes a Guarantor, the lesser of the initial amount of such Restricted Investment and the Fair Market Value of the Investment of the Company in such entity at the time it becomes a Guarantor.

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(e)Notwithstanding anything to the contrary therein, Section 4.11 will not prohibit:
(i)the payment of any dividend or distribution on account of Equity Interests or the consummation of any redemption within 60 days after the date of declaration of the dividend or distribution on account of Equity Interests or giving of the Redemption Notice, as the case may be, if at the date of declaration or notice, the dividend, distribution or redemption payment would have complied with the provisions of this Section 4.11;
(ii)the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness, unsecured Indebtedness or Disqualified Stock of the Company or any Guarantor in exchange for, by conversion into or out of, or with the net cash proceeds from, an incurrence of Permitted Refinancing Indebtedness, which incurrence occurs substantially concurrently with such purchase, repurchase, redemption, defeasance or other acquisition or retirement for value;
(iii)so long as no Default or Event of Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any current or former officer, director, employee or consultant of the Company or any Restricted Subsidiary of the Company or any permitted transferee of the foregoing pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $0.5 million in any twelve-month period; provided, further, that such amount in any twelve-month period may be increased by an amount not to exceed:
(A)the cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of the Company to officers, directors, employees or consultants of the Company, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Issue Date to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the making of Restricted Payments pursuant to this Section 4.11 plus
(B)the cash proceeds of key man life insurance policies received by the Company or any Restricted Subsidiary of the Company after the Issue Date; and in addition, cancellation of Indebtedness owing to the Company or any Restricted Subsidiary from any current or former officer, director or employee (or any permitted transferees thereof) of the Company or any Restricted Subsidiary of the Company in connection with a repurchase of Equity Interests of the Company or any Restricted Subsidiary of the Company from such Persons will not be deemed to

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constitute a Restricted Payment for purposes of this Section 4.11 or any other provisions of this Indenture;
(iv)the purchase, redemption or other acquisition or retirement for value of Equity Interests (x) deemed to occur upon the exercise or conversion of stock options, warrants, convertible notes or similar rights to acquire Equity Interests to the extent that such Equity Interests represent all or a portion of the exercise, exchange or conversion price of those stock options, warrants, convertible notes or similar rights, or (y) made in lieu of payment of withholding taxes in connection with the vesting of Equity Interests or any exercise or exchange of stock options, warrants, convertible notes or similar rights to acquire such Equity Interests;
(v)any purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness, unsecured Indebtedness or Disqualified Stock of the Company or any Restricted Subsidiary upon a Fundamental Change or Asset Sale to the extent required by this Indenture or other instrument pursuant to which such Indebtedness or Disqualified Stock was issued, but only if the Company or such Restricted Subsidiary has first complied with its obligation under ‎Article 3 and ‎Section 4.14, as applicable;
(vi)the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds from the substantially concurrent contribution to the common equity of the Company or from the substantially concurrent sale (other than to a subsidiary of the Company) of, Equity Interests (other than Disqualified Stock) of the Company; provided, that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will not be considered to be net proceeds of Equity Interests for purposes of clause (iii)(B) of this Section 4.11;
(vii)so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends or distributions to holders of any class or series of Disqualified Stock of the Company or any preferred stock of any Restricted Subsidiary of the Company issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test set forth in ‎Section 4.13(a);
(viii)payments of cash, dividends, distributions, advances or other Restricted Payments by the Company or any of its Restricted Subsidiaries to allow the payment of cash in lieu of the issuance of fractional shares;
(ix)the making of cash payments in connection with any conversion or redemption of the Notes pursuant to this Indenture;
(x)repurchases of Existing Convertible Notes for cash, or cash payments to defease or Effectively Discharge any Existing Convertible Notes; provided, that pro forma for such repurchases or payments (in a single transaction

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or a series of related transactions, including, for the avoidance of doubt, any related capital-raising transactions permitted by this Indenture), the Company’s Consolidated Cash Balances are at least $15.0 million;
(xi)so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $2.5 million in the aggregate since the Issue Date, plus if any such Restricted Payment under this clause ‎(xi) was used to make an Investment, the cash return of capital with respect to such Investment (less the cost of disposition, if any); and
(xii)so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, repurchases of Existing Convertible Notes for cash, or cash payments to defease or Effectively Discharge any Existing Convertible Notes, using 100% of the aggregate net cash proceeds received by the Company from the substantially concurrent issue or sale (other than to a subsidiary of the Company) of convertible or exchangeable Disqualified Stock of the Company or convertible or exchangeable debt securities of the Company which, in either case, constitute Permitted Refinancing Indebtedness with respect to the Existing Convertible Notes.
(f)The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or the relevant Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The Fair Market Value of any assets or securities that are required to be valued by this covenant will be determined by the Company or, if such Fair Market Value is in excess of $5.0 million, by the Board of Directors, whose Board Resolution with respect thereto will be delivered to the Trustee.
(g)For purposes of determining compliance with this Section 4.11, in the event that a proposed Restricted Payment (or portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in Sections 4.11(e)(i) through Section 4.12(e)(xi) or is entitled to be incurred as one or more categories of Permitted Investments or pursuant to ‎(a), the Company will be entitled to classify such Restricted Payment or portion thereof in any manner that complies with this Section 4.11, and such Restricted Payment will be treated as having been made pursuant to only such clause or clauses, categories of Permitted Investments or ‎(a).
(h)For purposes of this Section 4.11, the Notes and the Existing Convertible Notes will be deemed not to be Equity Interests.
Section 4.12.Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.

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(a)The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i)pay dividends or make any other distributions on its Capital Stock to any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to any of its Restricted Subsidiaries (it being understood that the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(ii)make loans or advances to any of its Restricted Subsidiaries; or
(iii)sell, lease or transfer any of its properties or assets to any of its Restricted Subsidiaries.
(b)The restrictions in Section 4.12(a) will not apply to encumbrances or restrictions existing under or by reason of:
(i)the Note Documents;
(ii)applicable law, rule, regulation, order, approval, license, permit or similar restriction (whether or not existing on the Issue Date);
(iii)any instrument governing Indebtedness or Capital Stock of a person acquired by the Company or any Restricted Subsidiaries as in effect at the time of such acquisition, except to the extent incurred in contemplation thereof;
(iv)customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;
(v)purchase money obligations for property acquired in the ordinary course of business that impose restrictions on that property;
(vi)any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(vii)Permitted Refinancing Indebtedness with terms are not materially more restrictive;
(viii)other permitted Indebtedness of the Company and Restricted Subsidiaries with terms that are customary and not materially more restrictive than other Indebtedness terms;

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(ix)Permitted Liens that limit the right of the debtor to dispose of the assets subject to such Liens;
(x)provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements, agreements respecting investments in a Permitted Business and other similar agreements entered into in the ordinary course of business; and
(xi)restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.
(c)For purposes of determining compliance with this ‎Section 4.12, the subordination of loans or advances made to the Company or a Restricted Subsidiary to other Indebtedness incurred by the Company or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Section 4.13.Incurrence of Indebtedness and Issuance of Preferred Stock.
(a)The Company and the Guarantors will not, and the Company will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, enter into a guarantee of or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or preferred interests; provided, however, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and the Guarantors may incur Indebtedness (including Acquired Debt) or issue preferred stock or preferred interests, if the Fixed Charge Coverage Ratio for the Company and its subsidiaries, on a consolidated basis, for the most recently completed four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock or preferred interests are issued, as the case may be, would have been at least 3.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock or preferred interests had been issued, as the case may be, at the beginning of such four-quarter period.
(b)Notwithstanding anything to the contrary therein, ‎Section 4.13(a) will not prohibit the incurrence of any of the following items of Indebtedness or the issuance of any of the following Disqualified Stock (collectively, “Permitted Debt”):
(i)the incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the Issue Date;

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(ii)the incurrence by the Company or any of its Restricted Subsidiaries of Existing Indebtedness listed on Schedule I hereto (including the Existing Convertible Notes and the related note guarantees with respect thereto), but excluding indebtedness under clause (i) above;
(iii)the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by either (A) Capital Lease Obligations, or (B) mortgage financings or purchase money obligations, in either case of sub-clause ‎(A) or ‎(B), incurred for the purpose of financing or reimbursing all or any part of the purchase price or cost of design, development, construction, installation, expansion, repair or improvement of property (either real or personal), plant or equipment or other fixed or capital assets used or useful in the business of the Company or any of its Restricted Subsidiaries (in each case, whether through the direct purchase of such assets or the purchase of Equity Interests of any Person owning such assets), which incurrence occurs within 365 days of such purchase, design, development, construction, installation, expansion, repair or improvement, in an aggregate principal amount, including, without duplication, all Permitted Refinancing Indebtedness incurred under ‎Section 4.13(b)(v) below to refinance any Indebtedness incurred pursuant to this clause ‎(iii), not to exceed, at one time outstanding, in the case of each of sub-clause ‎(A) and ‎(B), $10 million;
(iv)Indebtedness (i) attaching to assets acquired by the Company or any Restricted Subsidiary and outstanding on the date on which such assets were acquired by the Company or such Restricted Subsidiary, except to the extent incurred in contemplation thereof or to consummate the relevant transaction, subject to pro forma compliance with the Fixed Charge Coverage Ratio test set forth in ‎Section 4.13(a), and (ii) of a Restricted Subsidiary incurred and outstanding on the date on which such Restricted Subsidiary was acquired by, or merged into, the Company or any Restricted Subsidiary, except to the extent incurred in contemplation thereof or to consummate the relevant transaction, subject to pro forma compliance with the Fixed Charge Coverage Ratio test set forth in ‎Section 4.13(a), in the aggregate principal amount, including, without duplication, all Permitted Refinancing Indebtedness incurred under Section 4.13(b)(v) to refinance any Indebtedness incurred pursuant to this clause, not to exceed $20 million;
(v)Indebtedness constituting an extension or renewal of, replacement of, or substitution for, or issued in exchange for, or the net proceeds of which are used to repay, redeem, repurchase, refinance or refund, including by way of defeasance (all of the above, for purposes of this Section, “refinance”) then outstanding indebtedness (“Permitted Refinancing Indebtedness”) in an amount not to exceed the principal amount or liquidation value of the indebtedness so refinanced, plus premiums, fees and expenses; provided, that:
(A)in case the Notes are refinanced in part or the indebtedness to be refinanced is pari passu with the Notes, the new

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Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which it is outstanding, is expressly made pari passu with, or subordinated in right of payment to, the remaining Notes;
(B)in case the Indebtedness to be refinanced is Subordinated Indebtedness, the new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which it is outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes;
(C)the new indebtedness does not have a Stated Maturity prior to the Stated Maturity of the Indebtedness to be refinanced, and the Weighted Average Life to Maturity of the new indebtedness is at least equal to the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced;
(D)if the Indebtedness being refinanced is unsecured Indebtedness, such Permitted Refinancing Indebtedness is unsecured Indebtedness; and
(E)in no event may Indebtedness of the Company or any Guarantor be refinanced pursuant to this clause by means of any Indebtedness of any Restricted Subsidiary that is not a Guarantor;
(vi)the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or Disqualified Stock in an aggregate principal amount (or accreted value, as applicable), including, without duplication, all Permitted Refinancing Indebtedness incurred under Section 4.13(b)(v) to refinance any Indebtedness incurred pursuant to this clause, at any time outstanding not to exceed $10.0 million;
(vii)the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness (or the guarantees of any such intercompany Indebtedness) between or among the Company or any of its Restricted Subsidiaries; provided, however, that:
(A)the aggregate principal amount of intercompany Indebtedness (or the guarantees of any such intercompany Indebtedness) between or among the Company or any of its Restricted Subsidiaries must be incurred pursuant to an intercompany note (which may take the form of a grid note) that is pledged to the Collateral Agent or the Israeli Security Trustee, as applicable, in accordance with the terms of the applicable Security Agreement; and
(B)if the Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, then such Indebtedness (other than Indebtedness incurred in the ordinary course in connection with the cash or tax management operations of the Company

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and its Subsidiaries) must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor;

provided, further, that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary of the Company, will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this ‎Section 4.13(b)(vii);

(viii)the issuance by any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that:
(A)any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary of the Company; and
(B)any sale or other transfer of any such preferred stock to a Person that is not the Company or a Restricted Subsidiary of the Company, will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (viii);
(ix)Hedging Obligations that are not incurred for speculative purposes but for the purpose of (a) fixing or hedging interest rate risk with respect to any Indebtedness that is permitted by the terms of this Indenture to be outstanding; (b) fixing or hedging currency exchange rate risk with respect to any currency exchanges; or (c) fixing or hedging commodity price risk, including the price or cost of raw materials, emission rights, manufactured products or related commodities, with respect to any commodity purchases or sales;
(x)the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Guarantor, and the guarantee by any Restricted Subsidiary of the Company that is not a Guarantor of Indebtedness of another Restricted Subsidiary that is not a Guarantor, in each case, to the extent that the guaranteed Indebtedness was permitted to be incurred by another provision of this Section ‎4.13; provided that if the Indebtedness being guaranteed is subordinated in right of payment to or pari passu with the Notes, then the guarantee must be subordinated or pari passu, as applicable, in right of payment to the same extent as the Indebtedness guaranteed;
(xi)the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims, unemployment or other insurance or self-insurance obligations, health, disability

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or other benefits to employees or former employees and their families, bankers’ acceptances and similar obligations in the ordinary course of business;
(xii)the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days;
(xiii)the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from customary agreements of the Company or any such Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the acquisition or sale or other disposition of any business, assets or Capital Stock of the Company or any of its Restricted Subsidiaries, other than, in the case of any such disposition by the Company or any of its Restricted Subsidiaries, guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Capital Stock;
(xiv)the incurrence of contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business; or
(xv)the incurrence of Indebtedness in the ordinary course of business under any agreement between the Company or any of its Restricted Subsidiaries and any commercial bank or other financial institution relating to Treasury Management Arrangements.
(c)For purposes of determining compliance with this Section ‎4.13, in the event that an item of proposed Indebtedness or Disqualified Stock meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xv) of ‎Section 4.13(b), or is entitled to be incurred pursuant to ‎Section 4.13(a), the Company will be permitted to classify all or a portion of such item of Indebtedness or Disqualified Stock on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness or Disqualified Stock (based on circumstances existing on the date of such reclassification), in any manner that complies with this covenant. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant, provided, in each such case, that the amount of any such accrual, accretion or payment is included in Fixed Charges of the Company as accrued. For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign

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currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred. Notwithstanding anything to the contrary in this covenant, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
(d)The amount of any Indebtedness outstanding as of any date will be:
(i)the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(ii)the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(iii)in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A)the Fair Market Value of such assets at the date of determination; and
(B)the amount of the Indebtedness of the other Person.
Section 4.14.Asset Sales.
(a)The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(i)the Company (or its Restricted Subsidiaries, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or equity interests issued or sold or otherwise disposed of; and
(ii)at least 75% of the consideration received in the Asset Sale by the Company or its Restricted Subsidiaries is in the form of cash or Cash Equivalents.
(b)Within 90 days after the Company’s or any Restricted Subsidiary of the Company’s receipt of (x) the Net Proceeds of any Asset Sale or (y) aggregate cash proceeds in respect of any Co-Promotion Arrangement or Intellectual Property License to the extent such proceeds constitute fixed cash payments, the Company or such Restricted Subsidiary of the Company shall apply the Net Proceeds from such Asset Sale or such aggregate cash proceeds, as follows:
(i)(A) if the Asset Sale is an Intellectual Property Sale, or (B) with respect to aggregate cash proceeds received in respect of any Co-Promotion Arrangement or Intellectual Property License, the percentage of the Net Proceeds or aggregate cash proceeds set forth in the “Note Repurchase” column set forth in

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the table below (the “Specified Proceeds”) shall be applied to make a Specified Proceeds Offer (as defined in Section 4.14(c) below) to repurchase Notes in accordance with Section 4.14(c); and
(ii)(A) if the Asset Sale is not an Intellectual Property Sale, Co-Promotion Arrangement or Intellectual Property License, or (B) with respect to aggregate cash proceeds received in respect of any Co-Promotion Arrangement or Intellectual Property License, the percentage of the Net Proceeds or aggregate cash proceeds set forth in the “Company Retention” column in the table below which are not used to make a Specified Proceeds Offer to repurchase Notes pursuant to clause (i) above shall be applied to research and development or clinical development efforts in connection with the Products or other potential product candidates that may be introduced by the Company, or to make an Investment in any one or more businesses (provided that if such Investment is in the form of the acquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary of the Company or, if such Person is a Restricted Subsidiary of the Company, in an increase in the percentage ownership of such Person by the Company or any Restricted Subsidiary of the Company), noncurrent assets, or non-current property or capital expenditures, in each case (1) used or useful in a Permitted Business or (2) that replace the properties and assets that are the subject of such Asset Sale; provided that any such Investment, assets, property or capital expenditures shall be pledged as Collateral (including any assets held by a Person acquired using Net Proceeds). Pending the application of any Net Proceeds under this ‎Section 4.14, such Net Proceeds shall be held by the Collateral Agent as Collateral.

Proceeds(millions)

Note Repurchase (%)

Company Retention (%)

First $15.0

0.0

100.0

Next $20.0

30.0

70.0

Next $20.0

40.0

60.0

Next $20.0

55.0

45.0

Next $20.0

70.0

30.0

Any remaining proceeds thereafter

80.0

20.0

(c)(i) Within 90 days after the Company’s or any Restricted Subsidiary of the Company’s receipt of Specified Proceeds described under Section 4.14(b)(i), the Company will make an offer (a “Specified Proceeds Offer”) to all Holders of Notes to purchase the maximum principal amount of Notes that may be purchased out of the Specified Proceeds, at an offer price (the “Specified Proceeds Offer Purchase Price”) in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to (but not including) the date fixed for the purchase (the “Specified Proceeds Offer Purchase Date”), in accordance with the procedures set forth in this Indenture unless the Specified Proceeds Offer Purchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay, on or before such Interest Payment Date, the full

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amount of accrued and unpaid interest to Holders of record as of such Regular Record Date, and the Specified Proceeds Offer Purchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this‎ Section 4.14(c). A Specified Proceeds Offer shall remain open for a period of at least 20 Business Days or such longer period as may be required by law.

(ii)The Company will commence the Specified Proceeds Offer by giving notice to the Holders (the “Specified Proceeds Offer Company Notice”), with a copy to the Trustee, in accordance with Section 15.02 at least 15 but not more than 60 days before the Specified Proceeds Offer Purchase Date. Each Specified Proceeds Offer Company Notice shall specify:

(1)the last date on which a Holder may exercise the repurchase right pursuant to this‎ Section 4.14(c);

(2)the Specified Proceeds Offer Purchase Price;

(3)the Specified Proceeds Offer Purchase Date;

(4)the name and address of the Paying Agent and the Conversion Agent, if applicable; and

(5) the procedures that Holders must follow to require the Company to repurchase their Notes.

No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this‎ Section 4.14(c).

(iii)Repurchases of Notes under this ‎Section 4.14(c) shall be made, at the option of the Holder thereof, upon:

(1)delivery to the Paying Agent by a Holder of a duly completed notice (the “Specified Proceeds Repurchase Notice”) in the form titled “Option of Holder to Elect Purchase” in Exhibit A hereto, if the Notes are Definitive Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the Close of Business on the Business Day immediately preceding the Specified Proceeds Offer Purchase Date; and

(2)delivery of the Notes, if the Notes are Definitive Notes, to the Paying Agent at any time after delivery of the Specified Proceeds Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the Applicable Procedures, in each case such delivery being a condition to receipt by the Holder of the Specified Proceeds Offer Purchase Price therefor.

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The Specified Proceeds Repurchase Notice in respect of any Notes to be repurchased shall state:

(x)in the case of Definitive Notes, the certificate numbers of the Notes to be delivered for repurchase;

(y)the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and

(z)that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture;

provided, however, that if the Notes are Global Notes, the Specified Proceeds Repurchase Notice must comply with appropriate Depositary procedures.

Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Specified Proceeds Repurchase Notice contemplated by this ‎Section 4.14(c) shall have the right to withdraw, in whole or in part, such Specified Proceeds Repurchase Notice at any time prior to the Close of Business on the Business Day immediately preceding the Specified Proceeds Offer Purchase Date by delivery of a notice of withdrawal to the Paying Agent in accordance with‎ Section 4.14(c)(iv).

(iv)A Specified Proceeds Repurchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the Corporate Trust Office of the Paying Agent in accordance with this ‎Section 4.14(c) at any time prior to the Close of Business on the Business Day immediately preceding the Specified Proceeds Offer Purchase Date, specifying:

(1)the principal amount of the Notes with respect to which such notice of withdrawal is being submitted,

(2)if Definitive Notes have been issued, the certificate number of the Note in respect of which such notice of withdrawal is being submitted, and

(3)the principal amount, if any, of such Note that remains subject to the original Specified Proceeds Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;

provided, however, that if the Notes are Global Notes, the notice must comply with Applicable Procedures.

(v)If the aggregate principal amount of Notes tendered into such Specified Proceeds Offer exceeds the amount of Specified Proceeds, the Trustee will select the Notes to be purchased on a pro rata basis based on the principal amount of Notes so tendered, with adjustments so that only Notes in minimum denominations of $2,000 principal amount or an integral multiple of $1,000 in excess of $2,000 will be purchased. The Company shall deposit with the Trustee (or other Paying Agent

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appointed by the Company, or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 2.07) on or prior to 10:00 a.m., New York City time, on the Specified Proceeds Offer Purchase Date an amount of money sufficient to repurchase all of the Notes to be repurchased at the appropriate Specified Proceeds Offer Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn prior to the Close of Business on the Business Day immediately preceding the Specified Proceeds Offer Purchase Date) will be made on the later of (i) the Specified Proceeds Offer Purchase Date (provided the Holder has satisfied the conditions in Section 4.14(c)(iii) and (ii) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by Section 4.14(c) by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Register; provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Specified Proceeds Offer Purchase Price.

(vi)If by 10:00 a.m. New York City time, on the Specified Proceeds Offer Purchase Date, the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to make payment on all the Notes or portions thereof that are to be repurchased on such Specified Proceeds Offer Purchase Date, then, with respect to the Notes that have been accepted for repurchase, (i) such Notes will cease to be outstanding, (ii) interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent) and (iii) all other rights of the Holders of such Notes will terminate (other than the right to receive the Specified Proceeds Offer Purchase Price and, if applicable, accrued and unpaid interest).

(vii)Upon surrender of a Note that is to be repurchased in part pursuant to Section 4.14(c), the Company shall execute and the Trustee shall authenticate and deliver to the Holder a new Note in an authorized denomination equal in principal amount to the unrepurchased portion of the Note surrendered.

(viii)If any Specified Proceeds remain after consummation of a Specified Proceeds Offer, the Company may use those Specified Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Specified Proceeds Offer, the amount of Specified Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws and regulations are applicable in connection with the purchase of Notes pursuant to a Specified Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.14(c), the Company shall comply with the applicable securities laws and regulations and shall not be deemed

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to have breached its obligations under the provisions of this Section 4.14(c) by virtue thereof.

(d)Notwithstanding anything to the contrary in this Section 4.14, the Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale consisting of, in whole or in part, any Equity Interests of a Guarantor (including any debt security that is convertible into, or exchangeable for, Equity Interest of a Guarantor), other than an Asset Sale consisting of all of the Equity Interests of such Guarantor.
Section 4.15.Transactions with Affiliates.
(a)The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction or series of transactions, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each, an “Affiliate Transaction”), unless:
(i)the Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary, taken as a whole, than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with a Person that is not an Affiliate of the Company;
(ii)the Company delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $2.5 million, a Board Resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this ‎Section 4.15 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(iii)the Company delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, a favorable written opinion from a nationally recognized investment banking, appraisal or accounting firm (A) as to the fairness of the transaction to the Company and its Subsidiaries from a financial point of view or (B) stating that the terms of such transaction are, taken as a whole, no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable arm’s-length transaction by the Company or such Restricted Subsidiary with a Person that is not an Affiliate of the Company or any Restricted Subsidiary.
(b)The following items will be deemed not to be Affiliate Transactions and, therefore, will not be subject to the provisions of ‎Section 4.15:
(i)any employment or severance agreement or other employee compensation agreement, arrangement or plan, or any amendment thereto, entered

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into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(ii)transactions between or among the Company and its Restricted Subsidiaries;
(iii)transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns an Equity Interest in such Person;
(iv)the payment of reasonable directors’ fees or expenses, the payments of other reasonable benefits and the provision of officers’ and directors’ indemnification and insurance to the extent permitted by law, in each case in the ordinary course of business;
(v)sales of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company;
(vi)transactions with a Person or Affiliate of the Company that may or may not own an Equity Interest in the Company or its Restricted Subsidiaries for the purpose of securing hydrocarbon transportation arrangements; provided, that such transactions are on arms-length terms as determined in good faith by an officer of the Company;
(vii)transactions pursuant to agreements in effect on the Issue Date;
(viii)Restricted Payments as permitted pursuant to Section 4.11; and
(ix)any repurchases, redemptions or other retirements for value by the Company or any of its Restricted Subsidiaries of Indebtedness of any class held by any Affiliate of the Company, so long as such repurchase, redemption or other retirement for value is on the same terms as are made available to investors holding such class of Indebtedness generally, and Affiliates have an economic interest in no more than 50% of the aggregate principal amount of such class of Indebtedness.
Section 4.16.Liens.

The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien securing Indebtedness of any kind on any asset now owned or hereafter acquired, except Permitted Liens.

Section 4.17.Additional Note Guarantees.

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If, after the date of this Indenture, the Company or any Restricted Subsidiary of the Company forms or acquires any Restricted Subsidiary, then the Company shall cause such Restricted Subsidiary to, within 30 Business Days after the date of such event:

(a)execute and deliver to the Trustee and the Collateral Agent a supplemental indenture in the form attached hereto as Exhibit E and a notation of such Note Guarantee in the form attached as Exhibit D hereto pursuant to which such Restricted Subsidiary shall unconditionally guarantee all of the Company’s obligations under the Notes and this Indenture on the terms set forth in this Indenture;
(b)execute and deliver all supplements or joinders, as applicable, to the applicable Security Documents in order to grant a Lien in the Collateral owned by such Restricted Subsidiary to the same extent as that set forth in this Indenture and the Security Documents and take all actions required by the Security Documents to perfect such Lien; and
(c)deliver to the Trustee and the Collateral Agent an Officers’ Certificate and an Opinion of Counsel, each certifying that such supplemental indenture and the other documents described in clause (b) above have been duly authorized, executed and delivered by such Restricted Subsidiary and constitute a valid and legally binding and enforceable obligations of such Restricted Subsidiary, subject to customary exceptions.

Thereafter, such Restricted Subsidiary shall be a Guarantor for all purposes.

Section 4.18.Designation of Restricted and Unrestricted Subsidiaries.

As of the Issue Date, all of the Subsidiaries of the Company are Restricted Subsidiaries. The Board of Directors may at any time after the Issue Date (a) designate any Restricted Subsidiary to be an Unrestricted Subsidiary and (b) redesignate any Unrestricted Subsidiary as a Restricted Subsidiary; provided, that immediately before and after any such designation, no Default or Event of Default shall have occurred and be continuing. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Restricted Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments pursuant to Section 4.11 or under one or more clauses of the definition of “Permitted Investments,” as determined by the Company. That designation will only be permitted if the Investment would be permitted at that time and if such Restricted Subsidiary otherwise meets the definition of an “Unrestricted Subsidiary.” The Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default.

Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee and the Collateral Agent by filing with the Trustee and the Collateral Agent a certified copy of a resolution of the Board of Directors giving

87


effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.11. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Unrestricted Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section ‎4.13, the Company will be in default of such covenant. The Board of Directors may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and the creation, incurrence, assumption or otherwise causing to exist any Lien of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section ‎4.13, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter period referred to in such Section; (2) such Lien is permitted under ‎Section 4.16 and (3) no Default or Event of Default would be in existence following such designation.

Section 4.19.After-Acquired Property.
(a)Subject to ‎Section 14.01 of this Indenture and the Security Documents, if at any time after the Issue Date the Company or any of its Subsidiaries that is a Guarantor own any property (other than Excluded Assets and Excluded Real Property), the Company or such Guarantor shall, as promptly as practicable after such property is acquired or such Subsidiary becomes a Guarantor, execute and deliver such mortgages, deeds of trust, deeds to secure debt (as appropriate under the law of the relevant jurisdiction or forum), security instruments, financing statements and certificates or such other documentation as shall be reasonably necessary to vest in the Collateral Agent or the Israeli Security Trustee, as applicable, for the benefit of the Secured Parties, a perfected Lien (with the priority required hereunder and under the Security Documents), subject only to Permitted Liens, in such property and to have such property added to the Collateral (and, in the case of property consisting of Equity Interests in a Subsidiary, execute such documents and take such steps as shall be reasonably necessary to perfect a Lien under the local law of incorporation or formation of the Subsidiary; provided that the Fair Market Value of such Subsidiary and the assets and property it holds (directly or indirectly shall be at least U.S. $500,000), and thereupon all provisions of this Indenture relating to the Collateral shall be deemed to relate to such property to the same extent and with the same force and effect.
(b)Neither the Company nor any of its Restricted Subsidiaries will take any action, or knowingly omit to take any action, which action or omission could reasonably be expected to have the result of materially impairing the security interest with respect to the Collateral in favor of the Collateral Agent and the Israeli Security Trustee on behalf of the Secured Parties.

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(c) Upon request of the Collateral Agent or Israeli Security Trustee at any time after an Event of Default has occurred and is continuing, the Company will, and will cause its Restricted Subsidiaries to, (i) permit the Collateral Agent or the Israeli Security Trustee, as the case may be, or any advisor, auditor, consultant, attorney or representative acting for the Collateral Agent or the Israeli Security Trustee, as the case may be, upon reasonable notice to the Company and during normal business hours, to visit and inspect any of the property of the Company and its Restricted Subsidiaries, to review, make extracts from and copy the books and records of the Company and its Restricted Subsidiaries relating to any such property, and to discuss any matter pertaining to any such property with the officers and employees of the Company and its Restricted Subsidiaries, and (ii) deliver to the Collateral Agent or the Israeli Security Trustee such reports, including valuations, relating to any such property or any Lien thereon as such Collateral Agent or the Israeli Security Trustee may request.
Section 4.20.Limitation on Issuance of Equity Interests.

No Guarantor shall issue any Equity Interest of such Guarantor (including by way of sales of treasury stock or the issuance of any debt security that is convertible into, or exchangeable for, Equity Interest of such Guarantor) to any Person other than (i) to the Company or any other Guarantor or (ii) in connection with the transfer of all of the Equity Interests of such Guarantor otherwise permitted under this Indenture.

Section 4.21.Collateral.

The Company shall, and shall cause each Guarantor to, take all actions and execute and deliver all documents or deliverables, including each Security Document, to secure the payment obligations of the Company under the Notes and this Indenture (subject to the provisions of the U.S. Security Agreement, as applicable) by Liens on the Collateral in accordance with, within the time periods specified by, and subject to the limitations of ‎Section 14.01.

Section 4.22.Conditions Subsequent.

The Company and the Guarantors shall comply with the following obligations, in each case, within the applicable periods of time specified with respect to such item:

(a)each of the U.S. Security Agreement, the Intellectual Property Security Agreements (as defined in the U.S. Security Agreement), the Israeli Fixed Charge and the Israeli Floating Charge shall be filed for registration at the Israeli Registrar of Companies within ten Business Days of the Issue Date;
(b)the Israeli Stock Pledge shall be filed for registration at the Israeli Registrar of Pledges within ten Business Days of the Issue Date;
(c)within 30 days of the Issue Date, the Collateral Agent shall have received evidence that all filings, registrations and recordings have been made in the appropriate governmental offices, and all other action has been taken, which shall be

89


necessary to create, in favor of the Collateral Agent, a perfected first priority Lien on the Collateral, including fully executed control agreements with respect to the securities and deposit accounts of the Company and the filing of the Intellectual Property Security Agreements (as defined in the U.S. Security Agreement) and completed UCC-1 financing statements in the appropriate governmental offices; and
(d)the Company will use commercially best efforts to obtain the NYSE American Stockholder Approval at the Company’s next stockholder meeting occurring within one year from the Issue Date.
Section 4.23.Taxes. The Company will pay, and will cause each of its Subsidiaries to pay, prior to delinquency, all material taxes, assessments and governmental levies except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders.
Section 4.24.Minimum Liquidity. At all times when any Notes are outstanding, the Company and its Restricted Subsidiaries shall maintain aggregate Consolidated Cash Balances equal to at least $7.5 million.
Article 5
CONSOLIDATION, MERGER AND SALE OF ASSETS
Section 5.01.Company May Consolidate, Merge or Sell Its Assets Only on Certain Terms. The Company will not, directly or indirectly, (1) consolidate with or merge with or into, or (2) sell, convey, transfer or lease all or substantially all of its properties and assets to, any other Person (any such transaction, a “Reorganization Event”), unless:
(a)either:
(i)the Company is the surviving corporation; or
(ii)the resulting, surviving or transferee Person (if other than the Company) of such Reorganization Event (the “Reorganization Successor Corporation”):
(A)is a corporation organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia; and
(B)expressly assumes, by executing and delivering a supplemental indenture to the Trustee and the Collateral Agent that is reasonably satisfactory in form to the Trustee in accordance with Section 9.03 hereof and any other agreements reasonably satisfactory to the Trustee and the Collateral Agent, all of the obligations of the Company under the Notes, this Indenture and the Security Documents;

90


(b)immediately after giving effect to such Reorganization Event, no Default will have occurred and be continuing;
(c)on or prior to the effective date of such Reorganization Event, the Company delivers to the Trustee and the Collateral Agent an Officers’ Certificate and an Opinion of Counsel, each stating that:
(i)such Reorganization Event and such supplemental indenture and agreements entered into by the Company or the Reorganization Successor Corporation, if any, comply with this Indenture; and
(ii)all conditions precedent to such Reorganization Event and the execution of such supplemental indenture and other agreements, if any, provided in this Indenture have been satisfied.

Notwithstanding anything to the contrary herein, the Company or any Reorganization Successor Corporation shall at all times be a corporation organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia.

Section 5.02.Successor Substituted. If any Reorganization Event occurs that complies with Sections 5.01(a)(ii), 5.01(b) and 5.01(c) hereof, and the Company has complied with Section 5.01(d) hereof:
(a)from and after the date of such Reorganization Event, the Reorganization Successor Corporation for such Reorganization Event will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Reorganization Successor Corporation had been named as the Company herein; and
(b)except in the case of a Reorganization Event that is a conveyance, transfer or lease of all or substantially all of the Company’s assets (other than a conveyance or transfer of all of the Company’s assets other than assets with a Fair Market Value of less than $2.5 million), the Person named as the “Company” in the first paragraph of this Indenture or any successor (other than such Reorganization Successor Corporation) that will thereafter have become such in the manner prescribed in this ‎Article 5 will be released from its obligations under this Indenture.
Article 6
DEFAULTS AND REMEDIES
Section 6.01.Events of Default.
(a)General. Each of the following events will be an “Event of Default”:
(i)the Company fails to pay the principal of the Notes (including any Fundamental Change Repurchase Price or Redemption Price) when due at

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maturity, upon redemption, repurchase upon a Fundamental Change, declaration of acceleration or otherwise;