As filed with the Securities and Exchange Commission
on November 15, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
GAMIDA CELL LTD.
(Exact name of registrant as specified in its charter)
Israel |
|
Not Applicable |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
116 Huntington Avenue, 7th Floor
Boston, MA 02116
Tel: (617) 892-9080
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Gamida Cell Inc.
116 Huntington Avenue
Boston, MA 02116
Tel: (617) 892-9080
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Divakar Gupta
Daniel I. Goldberg
Joshua A. Kaufman
Cooley LLP
55 Hudson Yards
New York, NY 10001
Telephone: (212) 479-6000
Facsimile: (212) 479-6275 |
|
Haim Gueta
Shachar Hadar
Meitar | Law Offices
16 Abba Hillel Road
Ramat Gan 5250608, Israel
Telephone: +972 (3) 610-3100
Facsimile: +972 (3) 610-3111 |
Approximate date of commencement of proposed sale
to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to
a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check
mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company,
or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller
reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange
Act.
Large accelerated filer |
☐ |
Accelerated filer |
☐ |
Non-accelerated filer |
☒ |
Smaller reporting company |
☒ |
|
|
Emerging growth company |
☒ |
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The Registrant hereby amends this Registration
Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities
Act or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may
determine.
EXPLANATORY NOTE
This registration statement
is a replacement registration statement being filed pursuant to Rule 415(a)(6) under the Securities Act of 1933, as amended (the “Securities
Act”), with respect to securities which remain unsold under the Registration Statement on Form F-3 (File No. 333-259472), originally
filed on September 13, 2021, initially declared effective on November 21, 2021, amended by Post-Effective Amendment No. 1 to Form F-3
on Form S-3 Registration Statement on March 25, 2022 and again declared effective on April 1, 2022, which is due to expire on September
13, 2024 (the “Prior Registration Statement”). Pursuant to Rule 415(a)(5)(ii) under the Securities Act, by filing this registration
statement on Form S-3 (the “Registration Statement”), the Company may issue and sell securities covered by the Prior Registration
Statement until the earlier of the effective date of this Registration Statement or 180 days after September 21, 2024.
This registration statement of Gamida Cell Ltd.
contains two prospectuses:
| ● | a base prospectus, which covers the offering, issuance and
sale by the Registrant of ordinary shares, debt securities, warrants, rights, and units identified above from time to time in one or
more offerings, which together shall have an aggregate initial offering price not to exceed $150,000,000; and |
| ● | an Open Market Sale Agreement prospectus (the “Sale
Agreement Prospectus”) covering the offering, issuance and sale by the Registrant of up to a maximum aggregate offering price of
$50,000,000 of the Registrant’s ordinary shares that may be issued and sold under the amended and restated open market sale agreement,
dated June 5, 2023, between the Registrant and Jefferies LLC. |
The base prospectus immediately follows this explanatory
note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified in one or more prospectus supplements
to the base prospectus. The Sale Agreement Prospectus immediately follows the base prospectus. The ordinary shares that may be offered,
issued and sold by us under the Sale Agreement Prospectus are included in the $150,000,000 of securities that may be offered, issued and
sold by us under the base prospectus. In the event of the termination of the offering of ordinary shares under the Sale Agreement Prospectus,
any portion of the $50,000,000 aggregate offering price for the ordinary shares covered by the Sale Agreement Prospectus that is not sold
pursuant to the Sale Agreement Prospectus will be available for sale in other offerings pursuant to the base prospectus.
The information in this
prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell securities and it is not soliciting an offer to buy securities
in any jurisdiction where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED NOVEMBER 15, 2023
PROSPECTUS
$150,000,000
Ordinary Shares, Debt, Warrants, Rights
and Units offered by the Company
Gamida Cell Ltd.
We may offer, issue and sell from time to time,
in one or more offerings, ordinary shares, debt, warrants, rights or units, which we collectively refer to as the “securities.”
The aggregate initial offering price of the securities that we may offer and sell under this prospectus will not exceed $150,000,000.
We may offer and sell any combination of the securities
described in this prospectus in different series, at times, in amounts, at prices and on terms to be determined at or prior to the time
of each offering. This prospectus describes the general terms of these securities and the general manner in which these securities will
be offered. Each time we sell securities pursuant to this prospectus, we will provide a supplement to this prospectus that contains specific
information about the offering and the specific terms of the securities offered. The prospectus supplement will also describe the specific
manner in which these securities will be offered and may also supplement, update or amend information contained in this prospectus. You
should read this prospectus and any applicable prospectus supplement before you invest.
The securities covered by this prospectus may
be offered through one or more underwriters, dealers and agents, or directly to purchasers. The names of any underwriters, dealers or
agents, if any, will be included in a supplement to this prospectus. For general information about the distribution of securities offered,
please see “Plan of Distribution” beginning on page 23.
Our ordinary shares are traded
on the Nasdaq Global Market under the symbol “GMDA.” On November 14, 2023, the closing price of our ordinary shares as reported
by the Nasdaq Global Market was $0.37 per ordinary share.
We may sell these securities directly to investors,
through agents designated from time to time or to or through underwriters or dealers, on a continuous or delayed basis. For additional
information on the methods of sale, you should refer to the section titled “Plan of Distribution” in this prospectus. If any
agents or underwriters are involved in the sale of any securities with respect to which this prospectus is being delivered, the names
of such agents or underwriters and any applicable fees, commissions, discounts or over-allotment options will be set forth in a prospectus
supplement. The price to the public of such securities and the net proceeds we expect to receive from such sale will also be set forth
in a prospectus supplement.
Investing in our securities involves a high
degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors” contained
in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that
are incorporated by reference into this prospectus as described on page 3 of this prospectus.
Neither the U.S. Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of this prospectus
is November 15, 2023.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
on Form S-3 that we filed with the U.S. Securities and Exchange Commission, or the SEC, as part of a “shelf” registration
process.
Under this shelf registration, we may offer any
combination of the securities described in this prospectus from time to time in one or more offerings. This prospectus only provides you
with a general description of the securities we may offer. Each time we sell securities described herein, we will provide prospective
investors with a supplement to this prospectus that will contain specific information about the terms of that offering, including the
specific amounts, prices and terms of the securities offered. The prospectus supplement may also add to, update or change information
contained in this prospectus. We may also authorize one or more free writing prospectuses to be provided to you that may contain material
information relating to these offerings. The prospectus supplement and any related free writing prospectus that we may authorize to be
provided to you may also add, update or change information contained in this prospectus or in any documents that we have incorporated
by reference into this prospectus. Accordingly, to the extent inconsistent, information in this prospectus is superseded by the information
in any prospectus supplement or any related free writing prospectus that we may authorize. You should carefully read this prospectus,
any applicable prospectus supplement and any related free writing prospectus, together with the information incorporated herein by reference
as described under the heading “Incorporation of Certain Information by Reference,” before investing in any of the securities
offered.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE
A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
We own various trademark registrations and applications,
and unregistered trademarks. Gamida Cell, omidubicel, Omisirge and GDA-201 are trademarks of ours that we use in this prospectus supplement
and the accompanying prospectus. This prospectus also includes trademarks, tradenames and service marks that are the property of other
organizations. Solely for convenience, our trademarks and tradenames referred to in this prospectus appear without the ® or ™
symbols, but those references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable
law, our rights, or the right of the applicable licensor to our trademark and tradenames. We do not intend to use or display other companies’
trademarks and trade names to imply a relationship with, or endorsement or sponsorship of us by, any other companies.
The terms “shekel,” “Israeli
shekel” and “NIS” refer to New Israeli Shekels, the lawful currency of the State of Israel, and the terms “dollar,”
“U.S. dollar” or “$” refer to United States dollars, the lawful currency of the United States. All references
to “shares” in this prospectus refer to ordinary shares of Gamida Cell Ltd., par value NIS 0.01 per share.
References in this prospectus supplement to “Gamida
Cell,” “Gamida,” “the Company,” “we,” “us” and “our” refer to Gamida
Cell Ltd. and our wholly owned subsidiary Gamida Cell Inc., except where the context otherwise requires or as otherwise indicated. This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the
actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some
of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration
statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading “Where
You Can Find More Information.”
Neither we, nor any agent, underwriter or dealer
has authorized any person to give any information or to make any representation other than those contained or incorporated by reference
in this prospectus, any applicable prospectus supplement or any related free writing prospectus prepared by or on behalf of us or to which
we have referred you. This prospectus, any applicable supplement to this prospectus or any related free writing prospectus do not constitute
an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor
does this prospectus, any applicable supplement to this prospectus or any related free writing prospectus constitute an offer to sell
or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation
in such jurisdiction.
You should not assume that the information contained
in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate on any date subsequent to
the date set forth on the front of the document or that any information we have incorporated by reference is correct on any date subsequent
to the date of the document incorporated by reference, even though this prospectus, any applicable prospectus supplement or any related
free writing prospectus is delivered, or securities are sold, on a later date.
For investors outside the United States: We
have not done anything that would permit the offering or possession or distribution of this prospectus in any jurisdiction where action
for that purpose is required, other than in the United States. Persons outside the United States who come into possession of this prospectus
must inform themselves about, and observe any restrictions relating to, the offering of the securities described herein and the distribution
of this prospectus outside the United States.
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement and
the information incorporated by reference in this prospectus and any prospectus supplement contain forward-looking statements within the
meaning of Section 27A of the Securities Act, and Section 21E of the Exchange Act of 1934, as amended, or the Exchange Act, that involve
substantial risks and uncertainties. Although our forward-looking statements reflect the good faith judgment of our management, these
statements can only be based on facts and factors currently known by us. Consequently, these forward-looking statements are inherently
subject to risks and uncertainties, and actual results and outcomes may differ materially from results and outcomes discussed in the forward-looking
statements.
All statements other than present and historical
facts and conditions contained in this prospectus, any prospectus supplement and the information incorporated by reference in this prospectus
and any prospectus supplement including statements regarding our future results of operations and financial positions, business strategy,
plans and our objectives for future operations, are forward-looking statements. The words “anticipate,” “believe,”
“continue” “could,” “estimate,” “expect,” “intend,” “may,” “might,”
“ongoing,” “objective,” “plan,” “potential,” “predict,” “should,”
“will” and “would,” or the negative of these and similar expressions identify forward-looking statements. Forward-looking
statements include, but are not limited to, statements about:
| ● | our estimates regarding the commercial potential of, and
our commercialization plans for, our allogenic cell therapy Omisirge (omidubicel-onlv), including our plans to manufacture Omisirge at
a commercial scale at our Kiryat Gat facility; |
| ● | the clinical utility and potential advantages of Omisirge
and any of our product candidates; |
| ● | the timing, progress and conduct of our clinical trial of
GDA-201; |
| ● | our plans regarding utilization of regulatory pathways that
would allow for accelerated marketing approval in the United States, the European Union and other jurisdictions; |
| ● | our recurring losses from operations, our estimates regarding
anticipated capital requirements and our needs for additional sources of financing or a commercial or strategic partnership to support
a more fulsome commercial launch of Omisirge; |
| ● | anticipated cost savings from our strategic restructuring
and our financial runway; |
| ● | our expectations regarding when certain patents may be issued
and the protection and enforcement of our intellectual property rights; |
| ● | our plans regarding the maintenance of intellectual property rights to our preclinical NK cell pipeline; |
| ● | our ability to manufacture Omisirge and any product candidates
at levels sufficient for commercialization or clinical development, as applicable; |
| ● | our ability to maintain relationships with certain third
parties; |
| ● | our planned level of capital expenditures; |
| ● | the impact of government laws and regulations; |
| ● | the impact of political, economic and military conditions
in Israel, including the recent attack by Hamas and other terrorist organizations from the Gaza Strip and Israel’s war against
them; and |
| ● | the effects that geopolitical events or economic conditions
may have on us. |
As a result of these factors, we cannot assure
you that the forward-looking statements in this prospectus, any prospectus supplement and the information incorporated by reference in
this prospectus and any prospectus supplement will prove to be accurate. Furthermore, if our forward-looking statements prove to be inaccurate,
the inaccuracy may be material. In light of the significant uncertainties in these forward-looking statements, you should not regard these
statements as a representation or warranty by us or any other person that we will achieve our objectives and plans in any specified time
frame or at all. We undertake no obligation to publicly update any forward-looking statements, whether as a result of new information,
future events or otherwise, except as required by law.
You should read this prospectus, any prospectus
supplement and the information incorporated by reference in this prospectus and any prospectus supplement completely and with the understanding
that our actual future results may be materially different from what we expect. We qualify all of our forward-looking statements by these
cautionary statements.
This prospectus, any prospectus supplement and
the information incorporated by reference in this prospectus and any prospectus supplement may contain market data and industry forecasts
that were obtained from industry publications. These data involve a number of assumptions and limitations, and you are cautioned not to
give undue weight to such estimates. While we believe the market position, market opportunity and market size information included in
this prospectus, any prospectus supplement and the information incorporated by reference in this prospectus and any prospectus supplement
is generally reliable, such information is inherently imprecise.
In addition, statements that “we believe”
and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available
to us as of the date the statements were made, and while we believed such information formed a reasonable basis for such statements at
the time they were made, such information may be limited or incomplete, and our statements should not be read to indicate that we have
conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain
and you are cautioned not to unduly rely upon these statements.
PROSPECTUS SUMMARY
The following summary highlights information
contained elsewhere in this prospectus. This summary is not complete and does not contain all of the information that you need to consider
in making your investment decision. You should carefully read the entire prospectus, the applicable prospectus supplement and any related
free writing prospectus, including the risks of investing in our securities discussed under the heading “Risk Factors” contained
in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that
are incorporated by reference into this prospectus. You should also carefully read the information incorporated by reference into this
prospectus, including our consolidated financial statements, and the exhibits to the registration statement of which this prospectus is
a part.
Company Overview
We are a cell therapy pioneer working to turn
cells into powerful therapeutics. We apply a proprietary expansion platform leveraging the properties of nicotinamide, or NAM, to allogeneic
cell sources including umbilical cord blood-derived cells and natural killer, or NK, cells to create cell therapy candidates, with the
potential to redefine standards of care. On April 17, 2023, the U.S. Food and Drug Administration, or FDA, approved our allogeneic cell
therapy, Omisirge (omidubicel-onlv), for use in adult and pediatric patients 12 years and older with hematologic malignancies who are
planned for umbilical cord blood transplantation following myeloablative conditioning to reduce the time to neutrophil recovery and the
incidence of infection.
Corporate Information
We are an Israeli corporation and were incorporated
in 1998. Our principal executive offices are located at 116 Huntington Avenue, Boston, Massachusetts 02116. Our telephone number is (617)
892-9080. Our website address is www.gamida-cell.com. The information contained on, or that can be accessed through, our website is not
incorporated by reference into this prospectus. We have included our website address as an inactive textual reference only.
Gamida Cell Inc., our wholly owned subsidiary,
was incorporated under the laws of the State of Delaware in October 2000 and is qualified to do business in Massachusetts and other states.
Our ordinary shares have been listed on the Nasdaq
Global Market under the symbol “GMDA” since October 26, 2018.
The Securities We May Offer
We may offer our ordinary shares, debt, warrants
to purchase ordinary shares, rights and units comprising any combination of these securities, up to a total aggregate offering price of
$150,000,000 from time to time in one or more offerings under this prospectus, together with any applicable prospectus supplement and
any related free writing prospectus, at prices and on terms to be determined by market conditions at the time of the relevant offering.
This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities
under this prospectus, we will provide a prospectus supplement that will describe the specific amounts, prices and other important terms
of the securities, including, to the extent applicable:
| ● | designation or classification; |
| ● | aggregate principal amount or aggregate offering price; |
| ● | original issue discount; |
| ● | rates and times of payment of interest or dividends; |
| ● | redemption, conversion, exchange or sinking fund terms; |
| ● | conversion or exchange prices or rates and any provisions for changes to or adjustments in the conversion or exchange prices or rates
and in the securities or other property receivable upon conversion or exchange; and |
| ● | important tax considerations. |
The prospectus supplement and any related free
writing prospectus that we may authorize to be provided to you may also add, update or change information contained in this prospectus
or in documents we have incorporated by reference. However, no prospectus supplement or free writing prospectus will offer a security
that is not registered and described in this prospectus at the time of the effectiveness of the registration statement of which this prospectus
is a part.
We may sell the securities directly to investors
or through underwriters, dealers or agents. We, and our underwriters or agents, reserve the right to accept or reject all or part of any
proposed purchase of securities. If we do offer securities through underwriters or agents, we will include in the applicable prospectus
supplement:
| ● | the names of those underwriters or agents; |
| ● | applicable fees, discounts and commissions to be paid to them; |
| ● | details regarding over-allotment options, if any; and |
| ● | the estimated net proceeds to us. |
This prospectus may not be used to consummate
a sale of securities unless it is accompanied by a prospectus supplement.
RISK FACTORS
An investment in our securities involves a high
degree of risk. Before deciding whether to purchase our securities, you should carefully consider the risk factors incorporated by reference
from Part I, Item 1A. of our most recent Annual Report on Form 10-K, any subsequent Quarterly Reports on From 10-Q or Current Reports
on Form 8-K we file after the date of this prospectus, and all other information contained or incorporated by reference into this prospectus
or any applicable prospectus supplement, as updated by those subsequent filings with the SEC under the Exchange Act, that are incorporated
herein by reference. These risks could materially affect our business, results of operations or financial condition and cause the value
of our securities to decline, in which case you may lose all or part of your investment. For more information, see “Where You Can
Find More Information” and “Incorporation of Certain Information by Reference.”
USE OF PROCEEDS
Unless otherwise set forth in a prospectus supplement,
we currently intend to use the net proceeds of any offering of securities for working capital and other general corporate purposes. Accordingly,
we will have significant discretion in the use of any net proceeds. We may provide additional information on the use of the net proceeds
from the sale of the offered securities in an applicable prospectus supplement relating to the offered securities.
CAPITALIZATION
We intend to include information about our capitalization
and indebtedness in prospectus supplements.
DESCRIPTION OF
SECURITIES
The descriptions of the securities contained in
this prospectus, together with the applicable prospectus supplements, summarize the material terms and provisions of the various types
of securities that we may offer. We will describe in the applicable prospectus supplement relating to any securities the particular terms
of the securities offered by that prospectus supplement. If we so indicate in the applicable prospectus supplement, the terms of the securities
may differ from the terms we have summarized below.
We may sell from time to time, in one or more
offerings, ordinary shares, debt, warrants to purchase ordinary shares, rights and units comprising any combination of these securities.
In this prospectus, we refer to the ordinary shares,
debt, warrants to purchase ordinary shares, rights and units that may be offered by us collectively as “securities.” The total
dollar amount of all securities that we may issue under this prospectus will not exceed $150,000,000. The actual price per share of the
shares that will offer, or per security of the securities that we will offer, pursuant hereto will depend on a number of factors that
may be relevant as of the time of offer.
This prospectus may not be used to consummate
a sale of securities unless it is accompanied by a prospectus supplement.
DESCRIPTION OF
SHARE CAPITAL
The following descriptions of our share capital
and provisions of our amended and restated articles of association are summaries and do not purport to be complete.
General
Our authorized share capital consists of 325,000,000
ordinary shares, par value NIS 0.01 per share, of which 131,931,600 shares are issued and outstanding as of September 30, 2023.
All of our outstanding ordinary shares are validly
issued, fully paid and non-assessable. Our ordinary shares are not redeemable and do not have any preemptive rights. We have no preferred
shares authorized or outstanding.
Registration Number and Purposes of the Company
We are registered with the Israeli Registrar of
Companies. Our registration number is 51-260120-4. Our purpose, as set forth in our amended and restated articles of association, is to
engage in any lawful act or activity.
Voting Rights
All ordinary shares have identical voting and
other rights in all respects.
Transfer of Shares
Our fully paid ordinary shares are issued in registered
form and may be freely transferred under our amended and restated articles of association, unless the transfer is restricted or prohibited
by another instrument, applicable law or the rules of a stock exchange on which the shares are listed for trade. The ownership or voting
of our ordinary shares by non-residents of Israel is not restricted in any way by our amended and restated articles of association or
the laws of the State of Israel, except for ownership by nationals of some countries that are, or have been, in a state of war with Israel.
Election of Directors
Under our amended and restated articles of association,
our board of directors must consist of not less than 5 but no more than 11 directors. We currently have six directors on our board of
directors. Pursuant to our amended and restated articles of association, each of our directors is appointed by a simple majority vote
of holders of our voting shares, participating and voting at an annual general meeting of our shareholders. In addition, our directors
are divided into three classes, one class being elected each year at the annual general meeting of our shareholders, and serve on our
board of directors until they are removed by a vote of 60% of the total voting power of our shareholders at a general meeting of our shareholders
or upon the occurrence of certain events, in accordance with the Israeli Companies Law – 1999 (the “Companies Law”),
and our amended and restated articles of association. In addition, our amended and restated articles of association allow our board of
directors to fill vacancies on the board of directors or to appoint new directors up to the maximum number of directors permitted under
our amended and restated articles of association. Such directors serve for a term of office equal to the remaining period of the term
of office of the directors(s) whose office(s) have been vacated or in the case of new directors, for a term of office according to the
class to which such director was assigned upon appointment.
Dividend and Liquidation Rights
We may declare a dividend to be paid to the holders
of our ordinary shares in proportion to their respective shareholdings. Under the Companies Law, dividend distributions are determined
by the board of directors and do not require the approval of the shareholders of a company unless the company’s articles of association
provide otherwise. Our amended and restated articles of association do not require shareholder approval of a dividend distribution and
provide that dividend distributions may be determined by our board of directors.
Pursuant to the Israeli Companies Law, the distribution
amount is limited to the greater of retained earnings or earnings generated over the previous two years, according to our then last reviewed
or audited financial statements, provided that the end of the period to which the financial statements relate is not more than six months
prior to the date of the distribution. If we do not meet such criteria, then we may distribute dividends only with court approval. In
each case, we are only permitted to distribute a dividend if our board of directors and the court, if applicable, determines that there
is no reasonable concern that payment of the dividend will prevent us from satisfying our existing and foreseeable obligations as they
become due.
In the event of our liquidation, after satisfaction
of liabilities to creditors, our assets will be distributed to the holders of our ordinary shares in proportion to their shareholdings.
This right, as well as the right to receive dividends, may be affected by the grant of preferential dividend or distribution rights to
the holders of a class of shares with preferential rights that may be authorized in the future.
Exchange Controls
There are currently no Israeli currency control
restrictions on remittances of dividends on our ordinary shares, proceeds from the sale of the shares or interest or other payments to
non-residents of Israel, except for shareholders who are subjects of countries that are, or have been, in a state of war with Israel.
Shareholder Meetings
Under Israeli law, we are required to hold an
annual general meeting of our shareholders once every calendar year that must be held no later than 15 months after the date of the previous
annual general meeting. All meetings other than the annual general meeting of shareholders are referred to in our amended and restated
articles of association as special general meetings. Our board of directors may call special general meetings whenever it sees fit, at
such time and place, within or outside of Israel, as it may determine. In addition, the Companies Law provides that our board of directors
is required to convene a special general meeting upon the written request of (i) any two or more of our directors or one-quarter or more
of the members of our board of directors or (ii) one or more shareholders holding, in the aggregate, either (a) 5% or more of our outstanding
issued shares and 1% or more of our outstanding voting power or (b) 5% or more of our outstanding voting power.
Subject to the provisions of the Companies Law
and the regulations promulgated thereunder, shareholders entitled to participate and vote at general meetings are the shareholders of
record on a date to be decided by the board of directors, which may generally be between four and 21 days prior to the date of the meeting,
and in certain circumstances, between four and 40 days prior to the date of the meeting. Furthermore, the Companies Law requires that
resolutions regarding the following matters must be passed at a general meeting of our shareholders:
| ● | amendments to our articles of association; |
| ● | appointment or termination of our auditors; |
| ● | appointment of external directors; |
| ● | approval of certain related party transactions; |
| ● | increases or reductions of our authorized share capital; |
| ● | the exercise of our board of director’s powers by a general meeting, if our board of directors is unable to exercise its powers
and the exercise of any of its powers is required for our proper management. |
The Companies Law requires that a notice of any
annual general meeting or special general meeting be provided to shareholders at least 21 days prior to the meeting and if the agenda
of the meeting includes the appointment or removal of directors, the approval of transactions with office holders or interested or related
parties, or an approval of a merger, notice must be provided at least 35 days prior to the meeting. Under the Companies Law and our amended
and restated articles of association, shareholders are not permitted to take action by way of written consent in lieu of a meeting.
Voting Rights
Quorum
Pursuant to our amended and restated articles
of association, holders of our ordinary shares have one vote for each ordinary share held on all matters submitted to a vote before the
shareholders at a general meeting. The quorum required for our general meetings of shareholders consists of one or more shareholders present
in person, by proxy or written ballot who hold or represent between them at least 33 1/3% of the total outstanding voting rights. A meeting
adjourned for lack of a quorum shall be adjourned either to the same day in the next week, at the same time and place, to such day and
at such time and place as indicated in the notice to such meeting, or to such day and at such time and place as the chairperson of the
meeting shall determine. At the reconvened meeting, one or more shareholders present in person, by proxy or written ballot who hold or
represent between them at least 33 1/3% of the total outstanding voting rights shall constitute a quorum.
Vote Requirements
Our amended and restated articles of association
provide that all resolutions of our shareholders require a simple majority vote, unless otherwise required by the Companies Law or by
our amended and restated articles of association. Under the Companies Law, each of (i) the approval of an extraordinary transaction with
a controlling shareholder, (ii) the terms of employment or other engagement of the controlling shareholder of the company or such controlling
shareholder’s relative (even if such terms are not extraordinary) requires the approval under “Management–Fiduciary
duties and approval of specified related party transactions under Israeli law” and (iii) approval of certain compensation-related
matters require the approval described in the final prospectus filed with our Form F-1 Registration Statement (No. 333-232302) on June
28, 2019 under “Management–Compensation Committee.” Under our amended and restated articles of association, the alteration
of the rights, privileges, preferences or obligations of any class of our shares requires a simple majority of the class so affected (or
such other percentage of the relevant class that may be set forth in the governing documents relevant to such class), in addition to the
ordinary majority vote of all classes of shares voting together as a single class at a shareholder meeting. Our amended and restated articles
of association also provide that the removal of any director from office or the amendment of the provisions relating to our staggered
board requires the vote of 60% of the total voting power of our shareholders. Another exception to the simple majority vote requirement
is a resolution for the voluntary winding up, or an approval of a scheme of arrangement or reorganization, of the company pursuant to
Section 350 of the Companies Law, which requires the approval of holders of 75% of the voting rights represented at the meeting and voting
on the resolution.
In addition, pursuant to our amended and restated
articles of association, in order to approve any amendment to our amended and restated articles of association, in addition and prior
to the approval of a general meeting of shareholders, the approval by affirmative vote of a majority of the members of our board of directors
then in office and entitled to vote thereon is required.
Access to Corporate Records
Under the Companies Law, all shareholders generally
have the right to review minutes of our general meetings, our shareholder register, including with respect to material shareholders, our
articles of association, our financial statements, other documents as provided in the Companies Law, and any document we are required
by law to file publicly with the Israeli Companies Registrar or the Israeli Securities Authority. Any shareholder who specifies the purpose
of its request may request to review any document in our possession that relates to any action or transaction with a related party which
requires shareholder approval under the Companies Law. We may deny a request to review a document if we determine that the request was
not made in good faith, that the document contains a commercial secret or a patent or that the document’s disclosure may otherwise
impair our interests.
Acquisitions under Israeli Law
Full Tender Offer
A person wishing to acquire shares of a public
Israeli company and who would as a result hold over 90% of the target company’s issued and outstanding share capital or that of
a certain class of shares is required by the Companies Law to make a tender offer to all of the company’s shareholders or the shareholders
who hold shares of the same class for the purchase of all of the issued and outstanding shares of the company or of the same class, as
applicable.
If the shareholders who do not respond to or accept
the offer hold less than 5% of the issued and outstanding share capital of the company or of the applicable class of the shares, all of
the shares that the acquirer offered to purchase will be transferred to the acquirer by operation of law (provided that a majority of
the offerees that do not have a personal interest in such tender offer shall have approved it, which condition shall not apply if offerees
holding less than 2% of the company’s issued and outstanding share capital failed to approve such tender offer).
Upon a successful completion of such a full tender
offer, any shareholder that was an offeree in such tender offer, whether the shareholder accepted the tender offer or not, may, within
six months from the date of acceptance of the tender offer, petition the Israeli court to determine whether the tender offer was for less
than fair value and that the fair value should be paid as determined by the court unless the acquirer stipulated that a shareholder that
accepts the offer may not seek appraisal rights. If the shareholders who did not respond or accept the tender offer hold at least 5% of
the issued and outstanding share capital of the company or of the applicable class, or the shareholders who did not accept the tender
offer hold 2% or more of the issued and outstanding share capital of the company (or of the applicable class), the acquirer may not acquire
shares of the company that will increase its holdings to more than 90% of the company’s issued and outstanding share capital or
of the applicable class from shareholders who accepted the tender offer.
Special Tender Offer
The Companies Law provides that an acquisition
of shares of a public Israeli company must be made by means of a special tender offer if as a result of the acquisition the purchaser
would become a holder of at least 25% of the voting rights in the company. This rule does not apply if there is already another holder
of at least 25% of the voting rights in the company. Similarly, the Companies Law provides that an acquisition of shares in a public company
must be made by means of a tender offer if as a result of the acquisition the purchaser would become a holder of more than 45% of the
voting rights in the company, if there is no other shareholder of the company who holds more than 45% of the voting rights in the company.
These requirements do not apply if the acquisition
(i) occurs in the context of a private placement, provided that the general meeting approved the acquisition as a private offering whose
purpose is to give the acquirer at least 25% of the voting rights in the company if there is no person who holds at least 25% of the voting
rights in the company, or as a private offering whose purpose is to give the acquirer 45% of the voting rights in the company, if there
is no person who holds 45% of the voting rights in the company, (ii) was from a shareholder holding at least 25% of the voting rights
in the company and resulted in the acquirer becoming a holder of at least 25% of the voting rights in the company, or (iii) was from a
holder of more than 45% of the voting rights in the company and resulted in the acquirer becoming a holder of more than 45% of the voting
rights in the company.
The special tender offer may be consummated only
if (i) at least 5% of the voting power attached to the company’s outstanding shares will be acquired by the offeror and (ii) the
special tender offer is accepted by a majority of the votes of those offerees who gave notice of their position in respect of the offer,
excluding the votes of a holder of control in the offeror, a person who has personal interest in acceptance of the special tender offer,
holders of 25% or more of the voting rights in the company or anyone on their behalf, including their relatives and entities controlled
by them.
In the event that a special tender offer is made,
a company’s board of directors is required to express its opinion on the advisability of the offer, or shall abstain from expressing
any opinion if it is unable to do so, provided that it gives the reasons for its abstention. In addition, the board of directors must
disclose any personal interest each member of the board of directors has in the offer or stems therefrom. An office holder in a target
company who, in his or her capacity as an office holder, performs an action the purpose of which is to cause the failure of an existing
or foreseeable special tender offer or is to impair the chances of its acceptance, is liable to the potential purchaser and shareholders
for damages resulting from his or her acts, unless such office holder acted in good faith and had reasonable grounds to believe he or
she was acting for the benefit of the company. However, office holders of the target company may negotiate with the potential purchaser
in order to improve the terms of the special tender offer, and may further negotiate with third parties in order to obtain a competing
offer.
If a special tender offer was accepted by a majority
of the shareholders who announced their stand on such offer, then shareholders who did not respond to the special tender offer or had
objected to the offer may accept the offer within four days of the last day set for the acceptance of the offer.
In the event that a special tender offer is accepted,
then the purchaser or any person or entity controlling it or under common control with the purchaser or such controlling person or entity
shall refrain from making a subsequent tender offer for the purchase of shares of the target company and cannot execute a merger with
the target company for a period of one year from the date of the offer, unless the purchaser or such person or entity undertook to effect
such an offer or merger in the initial special tender offer.
Merger
The Companies Law permits merger transactions
if approved by each party’s board of directors and, unless certain requirements described under the Companies Law are met, a majority
of each party’s shareholders and, in the case of the target company, a majority vote of each class of its shares, voted on the proposed
merger at a shareholders meeting. The board of directors of a merging company is required pursuant to the Companies Law to discuss and
determine whether in its opinion there exists a reasonable concern that as a result of a proposed merger, the surviving company will not
be able to satisfy its obligations towards its creditors, such determination taking into account the financial status of the merging companies.
If the board of directors has determined that such a concern exists, it may not approve a proposed merger. Following the approval of the
board of directors of each of the merging companies, the boards of directors must jointly prepare a merger proposal for submission to
the Israeli Registrar of Companies.
For purposes of the shareholder vote, unless a
court rules otherwise, the merger will not be deemed approved if a majority of the shares represented at the shareholders meeting that
are held by parties other than the other party to the merger, or by any person who holds 25% or more of the outstanding shares or the
right to appoint 25% or more of the directors of the other party, vote against the merger. In addition, if the non-surviving entity of
the merger has more than one class of shares, the merger must be approved by each class of shareholders. If the transaction would have
been approved but for the separate approval of each class or the exclusion of the votes of certain shareholders as provided above, a court
may still approve the merger upon the request of holders of at least 25% of the voting rights of a company, if the court holds that the
merger is fair and reasonable, taking into account the value of the parties to the merger and the consideration offered to the shareholders.
Pursuant to the Companies Law, if a merger is with a company’s controlling shareholder or if the controlling shareholder has a personal
interest in the merger, then the merger is instead subject to the same special majority approval that governs all extraordinary transactions
with controlling shareholders (as described in our final prospectus filed with our Form F-1 Registration Statement (No. 333-232302) on
June 28, 2019 under “Management–Fiduciary duties and approval of specified related party transactions under Israeli law.”).
Under the Companies Law, each merging company
must send a copy of the proposed merger plan to its secured creditors. Unsecured creditors are entitled to receive notice of the merger
pursuant to regulations promulgated under the Companies Law. Upon the request of a creditor of either party to the proposed merger, the
court may delay or prevent the merger if it concludes that there exists a reasonable concern that, as a result of the merger, the surviving
company will be unable to satisfy the obligations the target company. The court may further give instructions to secure the rights of
creditors.
In addition, a merger may not be completed unless
at least 50 days have passed from the date that a proposal for approval of the merger was filed with the Israeli Registrar of Companies
and 30 days from the date that shareholder approval of both merging companies was obtained.
Anti-Takeover Measures
The Companies Law allows us to create and issue
shares having rights different from those attached to our ordinary shares, including shares providing certain preferred rights with respect
to voting, distributions or other matters and shares having preemptive rights. We have no preferred shares authorized under our amended
and restated articles of association. In the future, if we do authorize, create and issue a specific class of preferred shares, such class
of shares, depending on the specific rights that may be attached to it, may have the ability to frustrate or prevent a takeover or otherwise
prevent our shareholders from realizing a potential premium over the market value of their ordinary shares. The authorization and designation
of a class of preferred shares will require an amendment to our amended and restated articles of association, which requires the prior
approval of the holders of a majority of the voting power attaching to our issued and outstanding shares at a general meeting. The convening
of the meeting, the shareholders entitled to participate and the majority vote required to be obtained at such a meeting will be subject
to the requirements set forth in the Companies Law as described above in “–Voting Rights.” In addition, as disclosed
under “–Election of directors”, we have a classified board structure which effectively limits the ability of any investor
or potential investor or group of investors or potential investors to gain control of our board of directors.
Significant Transactions
Under our amended and restated articles of association,
the affirmative vote of at least two-thirds (2/3) of the then serving directors is required in order to approve certain transactions
which may have a significant effect on the Company’s structure, assets or business, including mergers and acquisitions, a disposition
of all or substantially all of the assets of the Company, a voluntary dissolution and material changes to the principal business of the
Company. Any amendment or replacement of such provision is subject, in addition to the approval of the Company’s shareholders, to
the approval of at least two-thirds (2/3) of the then serving directors.
Business Combinations
Our amended and restated articles of association,
restrict certain business transactions for a period of three years following (i) with respect to any shareholder of the Company
holding twenty percent (20%) or more of the issued and outstanding voting power of the ordinary shares as of July 27, 2022 (the effective
date of the amended and restated articles of association), and (ii) with respect to any other shareholder of the Company, each time
as such shareholder (and its affiliates) (other than due to a buyback, redemption or cancellation of shares by the Company) becomes the
holder (beneficially or of record) of twenty percent (20%) or more of the issued and outstanding voting power of the ordinary shares.
The restricted business combinations include mergers, consolidations and dispositions of assets having a value of 10% or more of (i) the
Company’s assets or (ii) the market value of its outstanding shares. Any amendment or replacement of such provision is subject,
in addition to the approval of the Company’s shareholders, to an approval of at least two-thirds (2/3) of the then serving directors.
Borrowing Powers
Pursuant to the Companies Law and our amended
and restated articles of association, our board of directors may exercise all powers and take all actions that are not required under
law or under our amended and restated articles of association to be exercised or taken by our shareholders, including the power to borrow
money for company purposes.
Changes in Capital
Our amended and restated articles of association
enable us to increase or reduce our share capital. Any such changes are subject to the Companies Law and must be approved by a resolution
duly passed by our shareholders at a general meeting by voting on such change in the capital. In addition, transactions that have the
effect of reducing capital, such as the declaration and payment of dividends in the absence of sufficient retained earnings or profits,
require the approval of both our board of directors and an Israeli court.
Transfer Agent and Registrar
The transfer agent and registrar for our ordinary
shares is Broadridge Corporate Issuer Solutions, Inc. Its address is 1717 Arch Street, Suite 1300, Philadelphia, Pennsylvania 19103, and
its telephone number is (215) 553-5400.
Listing
Our ordinary shares are listed on The Nasdaq Global
Market under the symbol “GMDA.”
DESCRIPTION OF
DEBT SECURITIES
We may issue debt securities from time to time,
in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized
below will apply generally to any debt securities that we may offer under this prospectus, we will describe the particular terms of any
debt securities that we may offer in more detail in the applicable prospectus supplement. The terms of any debt securities offered under
a prospectus supplement may differ from the terms described below. Unless the context requires otherwise, whenever we refer to the indenture,
we also are referring to any supplemental indentures that specify the terms of a particular series of debt securities.
We will issue the debt securities under the indenture
that we will enter into with the trustee named in the indenture. The indenture will be qualified under the Trust Indenture Act of 1939,
as amended, or the Trust Indenture Act. We have filed the form of indenture as an exhibit to the registration statement of which this
prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered
will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports
that we file with the SEC.
The following summary of material provisions of
the debt securities and the indenture is subject to, and qualified in its entirety by reference to, all of the provisions of the indenture
applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related free writing
prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete indenture that contains the
terms of the debt securities.
General
The indenture does not limit the amount of debt
securities that we may issue. It provides that we may issue debt securities up to the principal amount that we may authorize and may be
in any currency or currency unit that we may designate. Except for the limitations on consolidation, merger and sale of all or substantially
all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or other provisions designed to
give holders of any debt securities protection against changes in our operations, financial condition or transactions involving us.
We may issue the debt securities issued under
the indenture as “discount securities,” which means they may be sold at a discount below their stated principal amount. These
debt securities, as well as other debt securities that are not issued at a discount, may be issued with “original issue discount,”
or OID, for U.S. federal income tax purposes because of interest payment and other characteristics or terms of the debt securities. Material
U.S. federal income tax considerations applicable to debt securities issued with OID will be described in more detail in any applicable
prospectus supplement.
We will describe in the applicable prospectus
supplement the terms of the series of debt securities being offered, including:
| ● | the title of the series of debt securities; |
| ● | any limit upon the aggregate principal amount that may be issued; |
| ● | the maturity date or dates; |
| ● | the form of the debt securities of the series; |
| ● | the applicability of any guarantees; |
| ● | whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| ● | whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms
of any subordination; |
| ● | if the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued is
a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration
of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that is convertible into another
security or the method by which any such portion shall be determined; |
| ● | the interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin
to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such
dates; |
| ● | our right, if any, to defer payment of interest and the maximum length of any such deferral period; |
| ● | if applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, we may, at
our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those
redemption provisions; |
| ● | the date or dates, if any, on which, and the price or prices at which we are obligated, pursuant to any mandatory sinking fund or
analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities and the
currency or currency unit in which the debt securities are payable; |
| ● | the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple
thereof; |
| ● | any and all terms, if applicable, relating to any auction or remarketing of the debt securities of that series and any security for
our obligations with respect to such debt securities and any other terms which may be advisable in connection with the marketing of debt
securities of that series; |
| ● | whether the debt securities of the series shall be issued in whole or in part in the form of a global security or securities; the
terms and conditions, if any, upon which such global security or securities may be exchanged in whole or in part for other individual
securities; and the depositary for such global security or securities; |
| ● | if applicable, the provisions relating to conversion or exchange of any debt securities of the series and the terms and conditions
upon which such debt securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or
how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’ option) conversion or exchange
features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange; |
| ● | if other than the full principal amount thereof, the portion of the principal amount of debt securities of the series which shall
be payable upon declaration of acceleration of the maturity thereof; |
| ● | additions to or changes in the covenants applicable to the particular debt securities being issued, including, among others, the consolidation,
merger or sale covenant; |
| ● | additions to or changes in the events of default with respect to the securities and any change in the right of the trustee or the
holders to declare the principal, premium, if any, and interest, if any, with respect to such securities to be due and payable; |
| ● | additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance; |
| ● | additions to or changes in the provisions relating to satisfaction and discharge of the indenture; |
| ● | additions to or changes in the provisions relating to the modification of the indenture both with and without the consent of holders
of debt securities issued under the indenture; |
| ● | the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S.
dollars; |
| ● | whether interest will be payable in cash or additional debt securities at our or the holders’ option and the terms and conditions
upon which the election may be made; |
| ● | the terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium, if any and principal
amounts of the debt securities of the series to any holder that is not a “United States person” for U.S. federal income tax
purposes; |
| ● | any restrictions on transfer, sale or assignment of the debt securities of the series; and |
| ● | any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, any other additions or changes
in the provisions of the indenture, and any terms that may be required by us or advisable under applicable laws or regulations. |
Conversion or Exchange Rights
We will set forth in the applicable prospectus
supplement the terms on which a series of debt securities may be convertible into or exchangeable for our ordinary shares or our other
securities. We will include provisions as to settlement upon conversion or exchange and whether conversion or exchange is mandatory, at
the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our ordinary shares or
our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus
supplement applicable to a particular series of debt securities, the indenture will not contain any covenant that restricts our ability
to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety or substantially as an entirety.
However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all of our obligations under the indenture
or the debt securities, as appropriate.
Events of Default under the Indenture
Unless we provide otherwise in the prospectus
supplement applicable to a particular series of debt securities, the following are events of default under the indenture with respect
to any series of debt securities that we may issue:
| ● | if we fail to pay any installment of interest on any series of debt securities, as and when the same shall become due and payable,
and such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by us in accordance
with the terms of any indenture supplemental thereto shall not constitute a default in the payment of interest for this purpose; |
| ● | if we fail to pay the principal of, or premium, if any, on any series of debt securities as and when the same shall become due and
payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund
established with respect to such series; provided, however, that a valid extension of the maturity of such debt securities in accordance
with the terms of any indenture supplemental thereto shall not constitute a default in the payment of principal or premium, if any; |
| ● | if we fail to observe or perform any other covenant or agreement contained in the debt securities or the indenture, other than a covenant
specifically relating to another series of debt securities, and our failure continues for 90 days after we receive written notice of such
failure, requiring the same to be remedied and stating that such is a notice of default thereunder, from the trustee or holders of at
least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and |
| ● | if specified events of bankruptcy, insolvency or reorganization occur. |
If an event of default with respect to debt securities
of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the holders
of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice to us in writing, and to the
trustee if notice is given by such holders, may declare the unpaid principal of, premium, if any, and accrued interest, if any, due and
payable immediately. If an event of default specified in the last bullet point above occurs with respect to us, the principal amount of
and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or other action
on the part of the trustee or any holder.
The holders of a majority in principal amount
of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and its
consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured
the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the indenture, if an event
of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or
powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such
holders have offered the trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding debt securities
of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee,
or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided that:
| ● | the direction so given by the holder is not in conflict with any law or the applicable indenture; and |
| ● | subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability
or might be unduly prejudicial to the holders not involved in the proceeding. |
A holder of the debt securities of any series
will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other remedies only
if:
| ● | the holder has given written notice to the trustee of a continuing event of default with respect to that series; |
| ● | the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request, |
| ● | such holders have offered to the trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred by
the trustee in compliance with the request; and |
| ● | the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of
the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer. |
These limitations do not apply to a suit instituted
by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the
trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
We and the trustee may change an indenture without
the consent of any holders with respect to specific matters:
| ● | to cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series; |
| ● | to comply with the provisions described above under “Description of Debt Securities—Consolidation, Merger or Sale;” |
| ● | to provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
| ● | to add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions or provisions for the
benefit of the holders of all or any series of debt securities, to make the occurrence, or the occurrence and the continuance, of a default
in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred
upon us in the indenture; |
| ● | to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication and delivery of debt securities, as set forth in the indenture; |
| ● | to make any change that does not adversely affect the interests of any holder of debt securities of any series in any material respect; |
| ● | to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided above
under “Description of Debt Securities—General” to establish the form of any certifications required to be furnished
pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt
securities; |
| ● | to evidence and provide for the acceptance of appointment under any indenture by a successor trustee; or |
| ● | to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act. |
In addition, under the indenture, the rights of
holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at least a majority
in aggregate principal amount of the outstanding debt securities of each series that is affected. However, unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may make the following changes only
with the consent of each holder of any outstanding debt securities affected:
| ● | extending the fixed maturity of any debt securities of any series; |
| ● | reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable
upon the redemption of any series of any debt securities; or |
| ● | reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification
or waiver. |
Discharge
Each indenture provides that we can elect to be
discharged from our obligations with respect to one or more series of debt securities, except for specified obligations, including obligations
to:
| ● | register the transfer or exchange of debt securities of the series; |
| ● | replace stolen, lost or mutilated debt securities of the series; |
| ● | pay principal of and premium and interest on any debt securities of the series; |
| ● | maintain paying agencies; |
| ● | hold monies for payment in trust; |
| ● | recover excess money held by the trustee; |
| ● | compensate and indemnify the trustee; and |
| ● | appoint any successor trustee. |
In order to exercise our rights to be discharged,
we must deposit with the trustee money or government obligations sufficient to pay all the principal of, any premium, if any, and interest
on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series
only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus supplement, in denominations
of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities of a series in temporary or permanent
global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company, or DTC, or another
depositary named by us and identified in the applicable prospectus supplement with respect to that series. To the extent the debt securities
of a series are issued in global form and as book-entry, a description of terms relating to any book-entry securities will be set forth
in the applicable prospectus supplement.
At the option of the holder, subject to the terms
of the indenture and the limitations applicable to global securities described in the applicable prospectus supplement, the holder of
the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination
and of like tenor and aggregate principal amount.
Subject to the terms of the indenture and the
limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present
the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed
if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated
by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, we will impose
no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement
the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities.
We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office
through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt
securities of each series.
If we elect to redeem the debt securities of any
series, we will not be required to:
| ● | issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the
close of business on the day of the mailing; or |
| ● | register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion
of any debt securities we are redeeming in part. |
Information Concerning the Trustee
The trustee, other than during the occurrence
and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically set forth in the
applicable indenture. Upon an event of default under an indenture, the trustee must use the same degree of care as a prudent person would
exercise or use in the conduct of his or her own affairs. Subject to this provision, the trustee is under no obligation to exercise any
of the powers given it by the indenture at the request of any holder of debt securities unless it is offered reasonable security and indemnity
against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable
prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose
name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for
the interest.
We will pay principal of and any premium and interest
on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate
in the applicable prospectus supplement, we will make interest payments by check that we will mail to the holder or by wire transfer to
certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate the corporate trust office of
the trustee as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus
supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying
agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the trustee
for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two years after
such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may
look only to us for payment thereof.
Governing Law
The indenture and the debt securities will be
governed by and construed in accordance with the internal laws of the State of New York, except to the extent that the Trust Indenture
Act of 1939 is applicable.
DESCRIPTION OF
WARRANTS
General
The following description, together with the additional
information we may include in any applicable prospectus supplement and in any related free writing prospectus that we may authorize to
be distributed to you, summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which may
consist of warrants to purchase ordinary shares or debt securities and may be issued in one or more series. Warrants may be offered independently
or in combination with ordinary shares or debt securities offered by any prospectus supplement. While the terms we have summarized below
will apply generally to any warrants that we may offer under this prospectus, we will describe the particular terms of any series of warrants
in more detail in the applicable prospectus supplement. The following description of warrants will apply to the warrants offered by this
prospectus unless we provide otherwise in the applicable prospectus supplement. The applicable prospectus supplement for a particular
series of warrants may specify different or additional terms.
We have filed forms of the warrant agreements and
forms of warrant certificates as exhibits to the registration statement of which this prospectus is a part. We will file as exhibits to
the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC,
the form of warrant agreement, if any, including a form of warrant certificate, that contains the terms of the particular series of warrants
we are offering, as well as any supplemental agreements, before the issuance of such warrants. The following summaries of material terms
and provisions of the warrants are subject to, and qualified in their entirety by reference to, all the provisions of the form of warrant
or the warrant agreement and warrant certificate, as applicable, and any supplemental agreements applicable to a particular series of
warrants that we may offer under this prospectus. We urge you to read the applicable prospectus supplement related to the particular series
of warrants that we may offer under this prospectus, as well as any related free writing prospectus, and the complete form of warrant
or the warrant agreement and warrant certificate, as applicable, and any supplemental agreements, that contain the terms of the warrants.
General
In
the applicable prospectus supplement, we will describe the terms of the series of warrants being offered, including, to the extent applicable:
| ● | the
offering price or prices and aggregate number of warrants offered; |
| ● | the
currency or currencies for which the warrants may be purchased; |
| ● | the
designation and terms of the securities with which the warrants are issued and the number
of warrants issued with each such security or each principal amount of such security; |
| ● | the
date on and after which the warrants and the related securities will be separately transferable; |
| ● | the
minimum or maximum amount of such warrants which may be exercised at any one time; |
| ● | in
the case of warrants to purchase debt securities, the principal amount of debt securities
purchasable on exercise of one warrant and the price at, and currency in which, this principal
amount of debt securities may be purchased on such exercise; |
| ● | in
the case of warrants to purchase ordinary shares, the number of equity securities purchasable
on the exercise of one warrant and the price at which, and the currency in which, these equity
securities may be purchased on such exercise; |
| ● | the
effect of any merger, consolidation, sale or other disposition of our business on the warrant
agreements and the warrants; |
| ● | the
terms of any rights to redeem or call the warrants; |
| ● | the
terms of any rights to force the exercise of the warrants; |
| ● | any
provisions for changes to or adjustments in the exercise price or number of securities issuable
on exercise of the warrants; |
| ● | the
dates on which the right to exercise the warrants will commence and expire; |
| ● | the
manner in which the warrant agreements and warrants may be modified; |
| ● | a
discussion of certain material U.S. federal income tax considerations and any applicable
material Israeli tax considerations of holding or exercising the warrants; |
| ● | the
terms of the securities issuable on exercise of the warrants; and |
| ● | any
other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable on such exercise,
including:
| ● | in
the case of warrants to purchase ordinary shares, the right to receive dividends, if any,
or payments upon our liquidation, dissolution or winding up or to exercise voting rights,
if any; or |
| | |
| ● | in
the case of warrants to purchase debt securities, the right to receive payments of principal
of, or premium, if any, or interest on, the debt securities purchasable upon exercise or
to enforce covenants in the applicable indenture. |
Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price
that we describe in the applicable prospectus supplement. The warrants may be exercised as described in the prospectus supplement relating
to the warrants offered. Unless we otherwise specify in the applicable prospectus supplement, warrants may be exercised at any time up
to the expiration date that we list in the applicable prospectus supplement. After the close of business on the expiration date, unexercised
warrants will become void.
Unless
we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants by delivering the warrant
certificate representing the warrants to be exercised together with specified information, and paying the required amount to the warrant
agent in immediately available funds, as provided in the applicable prospectus supplement. We will set forth on the reverse side of the
warrant certificate and in the applicable prospectus supplement the information that the holder of the warrant will be required to deliver
to the warrant agent in connection with the exercise of the warrant.
On
receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office of the
warrant agent, if any, or any other office, including ours, indicated in the applicable prospectus supplement, we will issue and deliver
the securities purchasable on such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised,
then we will issue a new warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement,
holders of the warrants may surrender securities as all or part of the exercise price for warrants.
Governing
Law
Unless
we provide otherwise in the applicable prospectus supplement, the warrants and warrant agreements will be governed by and construed in
accordance with the laws of the State of New York.
Transfer
Agent and Registrar
The
transfer agent and registrar for any warrants will be set forth in the applicable prospectus supplement.
DESCRIPTION OF
RIGHTS
The following description, together with the additional
information that we include in any applicable prospectus supplements summarizes the material terms and provisions of the rights that we
may offer under this prospectus and the related rights agreements. While the terms we have summarized below will apply generally to any
rights that we may offer under this prospectus, we will describe the particular terms of any rights in more detail in the applicable prospectus
supplement. The terms of any rights offered under a prospectus supplement may differ from the terms described below.
We will incorporate by reference from reports that
we file with the SEC the form of any rights certificate or rights agreement that describes the terms of the rights we are offering, and
any supplemental agreements, before the issuance of the related rights. The following summaries of material terms and provisions of the
rights are subject to, and qualified in their entirety by reference to, all the provisions of any rights certificate or rights agreement
and any supplemental agreements applicable to particular rights. We urge you to read the applicable prospectus supplements related to
the particular rights that we may offer under this prospectus, as well as any related free writing prospectuses and the complete rights
certificate or rights agreement and any supplemental agreements that contain the terms of the rights.
General
We may issue rights to purchase
our equity or debt securities described in this prospectus. We may offer rights separately or together with one or more securities offered
hereby and may or may not be transferable by the shareholder receiving the rights in such offering, as described in
the applicable prospectus supplement. In connection with any offering of rights, we may enter into a standby agreement with one or more
underwriters or other purchasers pursuant to which the underwriter or other purchasers may be required to purchase any securities remaining
unsubscribed for after such offering.
We
will describe in the applicable prospectus supplement the specific terms of any offering of rights for which this prospectus is being
delivered, including the following:
| ● | the
price, if any, for the rights; |
| ● | the
exercise price payable for our equity or debt securities upon the exercise of the rights; |
| ● | the
number of rights issued to each shareholder; |
| ● | the
amount of our equity or debt securities that may be purchased per each right; |
| ● | the
extent to which the rights are transferable; |
| ● | any
other terms of the rights, including the terms, procedures and limitations relating to the
exchange and exercise of the rights; |
| ● | the
date on which the right to exercise the rights shall commence, and the date on which the
rights shall expire; |
| ● | the
extent to which the rights may include an over-subscription privilege with respect to unsubscribed
securities; and |
| ● | if
applicable, the material terms of any standby underwriting or purchase arrangement entered
into by us in connection with the offering of rights. |
Rights
Agent
The
rights agent, if any, for any rights we offer will be set forth in the applicable prospectus supplement.
DESCRIPTION OF
UNITS
The following description, together with the additional
information that we include in any applicable prospectus supplement, summarizes the material terms and provisions of the units that
we may offer under this prospectus. While the terms we have summarized below will apply generally to any units that we may offer
under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable prospectus supplement.
The terms of any units offered under a prospectus supplement may differ from the terms described below.
We will incorporate by reference from reports that
we file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering, and any supplemental
agreements, before the issuance of the related series of units. The following summaries of material terms and provisions of the units
are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements
applicable to a particular series of units. We urge you to read the applicable prospectus supplement related to the particular series
of units that we may offer under this prospectus, as well as any related free writing prospectuses and the complete unit agreement
and any supplemental agreements that contain the terms of the units.
General
We may issue units consisting of any combination
of the other types of securities offered under this prospectus in one or more series. Each unit will be issued so that the holder of the
unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder
of each security included in the unit. The unit agreement under which a unit is issued may provide that the securities included in the
unit may not be held or transferred separately, at any time or at any time before a specified date or upon the occurrence of a specified
event or occurrence.
We
will describe in the applicable prospectus supplement the terms of the series of units being offered, including:
| ● | the
designation and terms of the units and of the securities comprising the units,
including whether and under what circumstances those securities may be held or transferred
separately; |
| ● | any
provisions of the governing unit agreement that differ from those described below; |
| ● | certain
material U.S. federal income tax considerations and material U.K. tax considerations relevant
to the units; and |
| ● | any
provisions for the issuance, payment, settlement, transfer or exchange of the units
or of the securities comprising the units. |
The provisions described in this section, as well
as those set forth in any prospectus supplement or as described under the sections entitled “Description of Share Capital,”
“Description of Debt Securities,” “Description of Warrants” and “Description of Rights” will apply
to each unit, as applicable, and to any ordinary shares debt security, warrant or right included in each unit, as applicable.
Unit Agent
The name and address of the unit agent, if any,
for any units we offer will be set forth in the applicable prospectus supplement.
Issuance in Series
We may issue units in such amounts and in such
numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent under
the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single
bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in
case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings
at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder
of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.
PLAN OF DISTRIBUTION
We may sell the securities in one or more of the
following ways (or in any combination) from time to time:
| ● | through underwriters or dealers; |
| ● | directly to a limited number of purchasers or to a single purchaser; |
| ● | through any other method permitted by applicable law and described in the applicable prospectus supplement. |
The distribution of our securities may be carried
out, from time to time, in one or more transactions, including:
| ● | block transactions and transactions on the Nasdaq Global Market or any other organized market where the securities may be traded; |
| ● | purchases by a broker-dealer as principal and resale by the broker-dealer for its own account pursuant to a prospectus supplement; |
| ● | ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers; |
| ● | sales “at the market” or into an existing trading market, on an exchange or otherwise; or |
| ● | sales in other ways not involving market makers or established trading markets, including direct sales to purchasers. |
A prospectus supplement or supplements (and any
related free writing prospectus that we may authorize to be provided to you) will describe the terms of the offering of the securities,
including, to the extent applicable:
| ● | the name or names of any underwriters, dealers or agents; |
| ● | the method of distribution; |
| ● | the public offering price or purchase price and the proceeds to us from that sale; |
| ● | the expenses of the offering; |
| ● | any discounts or commissions to be allowed or paid to the underwriters, dealers or agents; |
| ● | all other items constituting underwriting compensation and the discounts and commissions to be allowed or paid to dealers, if any;
and |
| ● | any other information regarding the distribution of the securities that we believe to be material. |
Underwriters may offer and sell the securities
at a fixed price or prices, which may be changed, or from time to time at market prices prevailing at the time of sale, at prices related
to prevailing market prices or at negotiated prices. We may, from time to time, authorize agents acting on a best or reasonable efforts
basis as our agents to solicit or receive offers to purchase the securities upon the terms and conditions as are set forth in the applicable
prospectus supplement. In connection with the sale of securities, underwriters or agents may be deemed to have received compensation from
us in the form of underwriting discounts or commissions and may also receive commissions from purchasers of securities for whom they may
act as agent. Underwriters may sell securities to or through dealers, and dealers may receive compensation in the form of discounts, concessions
or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agent.
Underwriters, dealers and agents who participate
in the distribution of securities and their controlling persons may be entitled, under agreements that may be entered into with us to
indemnification by us against certain liabilities, including liabilities under the Securities Act, or to contribution with respect to
payments that the underwriters, dealers or agents and their controlling persons may be required to make in respect of those liabilities.
We may also make direct sales through subscription
rights distributed to our existing shareholders on a pro rata basis, which may or may not be transferable. In any distribution of subscription
rights to our shareholders, if all of the underlying securities are not subscribed for, we may then sell the unsubscribed securities directly
to third parties or may engage the services of one or more underwriters, dealers or agents, including standby underwriters, to sell the
unsubscribed securities to third parties.
Certain persons participating in an offering may
engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under
the Exchange Act that stabilize, maintain or otherwise affect the price of the offered securities. If any such activities will occur,
they will be described in the applicable prospectus supplement.
ENFORCEMENT OF
CIVIL LIABILITIES
We are incorporated under the laws of the State
of Israel. Service of process upon us and any Israeli experts named in this prospectus may be difficult to obtain within the United States.
Furthermore, because most of our assets are located outside the United States, any judgment obtained in the United States against us may
not be collectible within the United States.
We have irrevocably appointed Gamida Cell Inc.
as our agent to receive service of process in any action against us in any U.S. federal or state court arising out of this offering or
any purchase or sale of securities in connection with any offering described in this prospectus. The address of our agent is 116 Huntington
Avenue, 7th Floor, Boston, Massachusetts 02116.
We have been informed by our legal counsel in
Israel, Meitar | Law Offices, that it may be difficult to initiate an action with respect to U.S. securities law in Israel. Israeli courts
may refuse to hear a claim based on an alleged violation of U.S. securities laws reasoning that Israel is not the most appropriate forum
to hear such a claim. In Israeli courts, the content of applicable U.S. law must be proved as a fact by expert witnesses which can be
a time-consuming and costly process and certain matters of procedure may be governed by Israeli law.
Subject to certain time limitations and legal
procedures, Israeli courts may enforce a U.S. judgment in a civil matter which, subject to certain exceptions, is non-appealable, including
judgments based upon the civil liability provisions of the Securities Act and the Exchange Act and including a monetary or compensatory
judgment in a non-civil matter, provided that:
| ● | the judgment was rendered by a court which was, according to the laws of the state of the court, competent
to render the judgment; |
| ● | the obligation imposed by the judgment is enforceable according to the rules relating to the enforceability of judgments in Israel
and the substance of the judgment is not contrary to public policy; and |
| ● | the judgment is executory in the state in which it was given. |
Even if these conditions are met, an Israeli court
will not declare a foreign civil judgment enforceable if:
| ● | the judgment was given in a state whose laws do not provide for the enforcement of judgments of Israeli
courts (subject to exceptional cases); |
| ● | the enforcement of the judgment is likely to prejudice the sovereignty or security of the State of Israel; |
| ● | the judgment was obtained by fraud; |
| ● | the opportunity given to the defendant to bring its arguments and evidence before the court was not reasonable in the opinion of the
Israeli court; |
| ● | the judgment was rendered by a court not competent to render it according to the laws of private international law as they apply in
Israel; |
| ● | the judgment is contradictory to another judgment that was given in the same matter between the same parties and that is still valid;
or |
| ● | at the time the action was brought in the foreign court, a lawsuit in the same matter and between the same parties was pending before
a court or tribunal in Israel. |
LEGAL MATTERS
The validity of the issuance of our ordinary shares
offered in this prospectus and certain other matters of Israeli law will be passed upon for us by Meitar | Law Offices, Israel. Certain
matters of U.S. federal law and New York State law will be passed upon for us by Cooley LLP, New York, New York. Additional legal matters
may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements as of December
31, 2022 and 2021 and for each of the three years in the period ended December 31, 2022, incorporated in this Prospectus by reference
to the Company’s Annual Report on Form 10-K filed on March 31, 2023, have been audited by Kost, Forer, Gabbay & Kasierer, a
member of Ernst & Young Global, independent registered public accounting firm, as set forth in their report thereon (which contain
an explanatory paragraph describing conditions that raise substantial doubt about the Company’s ability to continue as a going concern
as described in the notes to the consolidated financial statements) incorporated by reference herein, and are included in reliance upon
such report given on the authority of such firm as experts in accounting and auditing. The address of Kost, Forer, Gabbay & Kasierer
is Menachem Begin 144, Tel Aviv, Israel.
WHERE YOU CAN FIND
MORE INFORMATION
This prospectus is part of a registration statement
we filed with the SEC. This prospectus does not contain all of the information set forth in the registration statement and the exhibits
to the registration statement. For further information with respect to us and the securities we are offering under this prospectus, we
refer you to the registration statement and the exhibits and schedules filed as a part of the registration statement. Neither we nor any
agent, underwriter or dealer has authorized any person to provide you with different information. We are not making an offer of these
securities in any state where the offer is not permitted. You should not assume that the information in this prospectus is accurate as
of any date other than the date on the front page of this prospectus, regardless of the time of delivery of this prospectus or any sale
of the securities offered by this prospectus.
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. Our SEC filings are available to the public at the SEC’s website at www.sec.gov.
You also may access these filings on our website at www.gamida-cell.com. We do not incorporate the information on our website into this
prospectus or any supplement to this prospectus and you should not consider any information on, or that can be accessed through, our website
as part of this prospectus or any supplement to this prospectus (other than those filings with the SEC that we specifically incorporate
by reference into this prospectus or any supplement to this prospectus).
INCORPORATION OF
CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference”
into this prospectus and any accompanying prospectus supplement the information we have filed with the SEC. This means that we can disclose
important information by referring you to another document filed separately with the SEC. The information incorporated by reference is
considered to be a part of this prospectus, and information that we file later with the SEC will also be deemed to be incorporated by
reference into this prospectus and to be a part hereof from the date of filing of such documents and will automatically update and supersede
previously filed information, including information contained in this document.
We incorporate by reference into this prospectus
and any accompanying prospectus supplement the following documents that we have filed with the SEC:
| ● | our Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on March 31, 2023; |
| ● | our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023, and September
30, 2023, filed with the SEC on May 15, 2023, August 14, 2023, and November 14, 2023, respectively; |
| ● | our Current Reports on Form 8-K filed with the SEC on January
9, 2023, January
19, 2023, January
30, 2023, March
20, 2023, March 27,
2023, April 17,
2023, April 21,
2023, May 19,
2023, May 22,
2023, August 14,
2023, September 27,
2023, October 20,
2023 and November 15, 2023, to the extent the information in such reports is filed and not furnished; and |
| ● | the description of our ordinary shares contained in our Registration Statement on Form 8-A, filed with
the SEC on October 23, 2018, as amended on March 25, 2022, as the description therein has been updated and superseded by the description
of our capital stock contained in Exhibit 4.1 to our Annual Report on Form 10-K for the year ended December 31, 2022, including any further
amendments or reports filed for the purposes of updating this description. |
We also incorporate by reference into this prospectus
all documents (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are
related to such items) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after
the date of the initial filing of the registration statement of which this prospectus forms a part and prior to effectiveness of the registration
statement, or (ii) after the date of this prospectus but prior to the termination of the offering.
We will furnish without charge to each person,
including any beneficial owner, to whom a prospectus is delivered, on written or oral request, a copy of any or all of the documents incorporated
by reference in this prospectus, including exhibits to these documents. You should direct any requests for documents, either in writing
to Gamida Cell Ltd., 116 Huntington Avenue Boston, MA 02116, Attn: General Counsel or by telephone (617) 892-9080.
Any statement contained in a document incorporated
or deemed to be incorporated by reference in this prospectus or any prospectus supplement will be deemed modified, superseded or replaced
for purposes of this prospectus or any prospectus supplement to the extent that a statement contained in any other subsequently filed
document that also is or is deemed to be incorporated by reference in this prospectus or any prospectus supplement modifies, supersedes
or replaces such statement. Any statement that is modified or superseded will not constitute a part of this prospectus or any prospectus
supplement, except as modified or superseded.
The information in this
prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and we are not soliciting an offer to
buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED NOVEMBER 15, 2023
PROSPECTUS
Up to $50,000,000
Ordinary Shares
We have previously entered into that
certain Amended & Restated Open Market Sale AgreementSM, or the sale agreement, with
Jefferies LLC, or Jefferies, dated June 5, 2023, relating to the sale of our ordinary shares offered by this prospectus. In accordance
with the terms of the sale agreement, under this prospectus, we may offer and sell shares of our ordinary shares having an aggregate offering
price of up to $50,000,000 from time to time through Jefferies, acting as sales agent.
Our ordinary shares are traded
on the Nasdaq Global Market under the symbol “GMDA.” On November 14, 2023, the closing price of our ordinary shares as reported
by the Nasdaq Global Market was $0.37 per ordinary share.
Sales of our ordinary shares, if any, under this
prospectus and the accompanying base prospectus may be made by any method permitted that is deemed to be an “at the market offering”
as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, or the Securities Act. Jefferies is not required
to sell any specific amount of ordinary shares, but will act as our sales agent using commercially reasonable efforts to sell on our behalf
all of the ordinary shares requested to be sold by us, consistent with its normal trading and sales practices, on mutually agreed terms
between Jefferies and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
Jefferies will be entitled to compensation under
the terms of the sale agreement at a commission rate equal to 3.0% of the aggregate gross sales price of ordinary shares sold through
it. In connection with the sale of our ordinary shares on our behalf, Jefferies will be deemed to be an “underwriter” within
the meaning of the Securities Act and the compensation of Jefferies will be deemed to be underwriting commissions or discounts. We
have also agreed to provide indemnification and contribution to Jefferies with respect to certain liabilities, including liabilities under
the Securities Act. See “Plan of Distribution” beginning on page S-20 regarding the compensation to be paid to Jefferies.
Investing in our securities involves a high
degree of risk. You should review carefully the risks and uncertainties described and incorporated by reference under the heading “Risk
Factors” and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference
into this prospectus as described on page S-6 of this prospectus.
Neither the U.S. Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
Jefferies
The date of this prospectus is ,
2023
Table of Contents
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC, using a “shelf” registration process. This
prospectus is not complete without, and may not be utilized except in connection with, the accompanying base prospectus. Under this shelf
registration process, we may sell any combination of the securities described in our base prospectus included in the shelf registration
statement in one or more offerings up to a total aggregate offering price of $150,000,000. The $50,000,000 of ordinary shares that may
be offered, issued and sold under this prospectus is included in the $150,000,000 of securities that may be offered, issued and sold by
us pursuant to our shelf registration statement.
In this prospectus, as permitted by law, we “incorporate
by reference” information from other documents that we file with the SEC. This means that we can disclose important information
to you by referring to those documents. The information incorporated by reference is considered to be a part of this prospectus,
and should be read with the same care. When we make future filings with the SEC to update the information contained in documents that
have been incorporated by reference, the information included or incorporated by reference in this prospectus is considered to be automatically
updated and superseded. However, if any statement in this prospectus is inconsistent with a statement in another document having a later
date (including a document incorporated by reference in the accompanying prospectus), the statement in the document having the later date
modifies or supersedes the earlier statement.
Neither we nor Jefferies have authorized anyone
to provide you with information different from that contained in this prospectus or any free writing prospectus we have authorized for
use in connection with this offering. Neither we nor Jefferies take any responsibility for, and can provide no assurance as to the reliability
of, any other information that others may give you. The information contained in, or incorporated by reference into, this prospectus,
and any free writing prospectus we have authorized for use in connection with this offering is accurate only as of the date of each such
document. Our business, financial condition, results of operations and prospects may have changed since those dates. You should read this
prospectus, the documents incorporated by reference in this prospectus and any free writing prospectus that we have authorized for use
in connection with this offering in their entirety before making an investment decision. You should also read and consider the information
in the documents to which we have referred you in the sections of the accompanying prospectus entitled “Where You Can Find More
Information” and “Incorporation of Certain Documents by Reference.” These documents contain important information that
you should consider when making your investment decision.
We are offering to sell, and seeking offers to
buy, our ordinary shares only in jurisdictions where offers and sales are permitted. The distribution of this prospectus or any free writing
prospectus we have authorized for use in connection with this offering in certain jurisdictions may be restricted by law. Persons outside
the United States who come into possession of this prospectus or any free writing prospectus we have authorized for use in connection
with this offering must inform themselves about, and observe any restrictions relating to, the offering of the ordinary shares and the
distribution of this prospectus and any free writing prospectus we have authorized for use in connection with this offering outside the
United States. This prospectus and any free writing prospectus we have authorized for use in connection with this offering do not
constitute, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any securities offered by
this prospectus or any such free writing prospectus by any person in any jurisdiction in which it is unlawful for such person to make
such an offer or solicitation.
We further note that the representations, warranties
and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference in the prospectus
were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among
the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations,
warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should
not be relied on as accurately representing the current state of our affairs.
We own various trademark registrations and applications,
and unregistered trademarks. Gamida Cell, omidubicel, Omisirge® and GDA-201 are trademarks of ours that we use in this prospectus.
This prospectus also includes trademarks, tradenames and service marks that are the property of other organizations. Solely for convenience,
our trademarks and tradenames referred to in this prospectus appear without the ® or ™ symbols, but those references are not
intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights, or the right of the
applicable licensor to our trademark and tradenames. We do not intend to use or display other companies’ trademarks and trade names
to imply a relationship with, or endorsement or sponsorship of us by, any other companies.
The financial statements incorporated by reference
in this prospectus have been prepared in accordance with accounting principles generally accepted in the United States, or GAAP,
as issued by the Financial Accounting Standards Board, FASB. We have made rounding adjustments to some of the figures included in
this prospectus. Accordingly, numerical figures shown as totals in some tables may not be an arithmetic aggregation of the figures that
preceded them.
Unless the context indicates otherwise, references
in this prospectus to “NIS” are to the legal currency of Israel, and “U.S. dollars,” “$” or “dollars”
are to United States dollars. References in this prospectus to “Gamida Cell,” “Gamida,” “the Company,”
“we,” “us” and “our” refer to Gamida Cell Ltd. and our wholly owned subsidiary Gamida Cell Inc., except
where the context otherwise requires or as otherwise indicated.
You should rely only on the information contained
or incorporated by reference in this prospectus or any “free writing prospectus” we may authorize to be delivered to you.
We have not, and the sales agent has not, authorized anyone to provide you with different information. If anyone provides you with different
or inconsistent information, you should not rely on it. You should assume that the information appearing in this prospectus and the documents
incorporated by reference herein and therein are accurate only as of their respective dates. Our business, financial condition, results
of operations and prospects may have changed since those dates.
This prospectus shall not constitute an offer or solicitation
by anyone in any jurisdiction in which such offer or solicitation is not authorized or in which the person making such offer or solicitation
is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
PROSPECTUS SUMMARY
This summary highlights only some of the information
included or incorporated by reference in this prospectus. You should carefully read this entire prospectus and the accompanying base prospectus,
including the risks and uncertainties discussed under the heading “Risk Factors” beginning on page S-6 of this prospectus
and in the documents incorporated by reference into this prospectus, together with the additional information about us described in the
sections entitled “Where You Can Find Additional Information” and “Incorporation of Certain Information by Reference”,
including our financial statements, before making an investment decision. If you invest in our securities, you are assuming a high degree
of risk.
Overview
We are a cell therapy pioneer working to turn
cells into powerful therapeutics. We apply a proprietary expansion platform leveraging the properties of nicotinamide, or NAM, to allogeneic
cell sources including umbilical cord blood-derived cells and natural killer, or NK, cells to create cell therapy candidates, with the
potential to redefine standards of care. On April 17, 2023, the U.S. Food and Drug Administration, or FDA, approved our allogenic cell
therapy, Omisirge (omidubicel-onlv), for use in adult and pediatric patients 12 years and older with hematologic malignancies who are
planned for umbilical cord blood transplantation following myeloablative conditioning to reduce the time to neutrophil recovery and the
incidence of infection.
According to the Center for International Blood
and Marrow Transplant Research, in the United States, there are approximately 8,000 patients above the age of 12 with hematologic malignancies
who undergo an allogeneic stem cell transplant each year, and we believe that number of patients may grow over time. We estimate that
there are approximately 1,700 patients each year, who are above the age of 12 and are deemed eligible for an allogeneic stem cell transplant
but cannot find an appropriate donor.
We believe the commercial potential for Omisirge
consists of two key opportunities: potentially improving outcomes for patients, and potentially increasing access for patients who are
currently eligible for transplant and cannot find an appropriate donor. We estimate that in 2028 approximately 10,000 patients who are
ages 12 and above with hematologic malignancies will be eligible for transplant and that Omisirge could be the treatment of choice for
approximately 20% of this population.
Corporate Information
We are an Israeli corporation and were incorporated
in 1998. Our principal executive offices are located at 116 Huntington Avenue, 7th Floor, Boston, Massachusetts 02116. Our telephone number
is (617) 892-9080. Our website address is www.gamida-cell.com. The information contained on, or that can be accessed through, our website
is not incorporated by reference into this prospectus. We have included our website address as an inactive textual reference only.
Risks Associated with our Business
Our business is subject to numerous risks, as
described under the heading “Risk Factors” contained in this prospectus and in any free writing prospectuses that we have
authorized for use in connection with this offering, and under similar headings in the documents that are incorporated by reference herein.
You should be aware of these risks before making an investment decision. In particular, these risks include, among others:
| ● | We are heavily dependent on the success of Omisirge, including obtaining regulatory approvals in geographies
outside of the United States, and if Omisirge is not successfully commercialized, our business will be adversely affected. |
| ● | We have limited experience producing Omisirge at commercial levels and we have limited experience operating
a cGMP compliant manufacturing facility. |
| ● | We currently have a limited marketing and sales organization. If we are unable to establish adequate sales
and marketing capabilities to support the commercial launch of Omisirge or enter into agreements with third parties to market and sell
Omisirge, we may be unable to generate sufficient product revenue. |
| ● | Sales of Omisirge will be limited unless it achieves broad market acceptance by physicians, patients,
third-party payers, hospital pharmacists and others in the medical community. |
| ● | It may be difficult for us to profitably sell Omisirge if coverage and reimbursement for Omisirge is limited
by government authorities and/or third-party payer policies. |
| ● | Although we are exploring a range of strategic alternatives, there is no certainty that we will be able
to execute on any transaction or that such a transaction will enhance shareholder value, and any such transaction, if available and achieved,
may be highly dilutive to our stockholders. |
| ● | The costs associated with a potential strategic transaction may be significant. |
| ● | We have incurred significant losses since our inception. We anticipate that we will continue to incur
significant losses for the foreseeable future, and we may never achieve or maintain profitability. |
| ● | There is substantial doubt regarding our ability to continue as a going concern. Operating our business
and servicing our debt requires a significant amount of cash, and we will need to obtain additional funding or complete a strategic transaction
in the near-term to continue to sufficiently fund our operations and pay our substantial debt, including our 5.875% convertible senior
notes that mature in February 2026, or the 2021 Notes, and our first lien secured note that matures in December 2024, or the 2022 Note. |
| ● | The Indenture governing the 2021 Notes and the Loan and Security Agreement governing the 2022 Note each
contains restrictive and financial covenants and other provisions that adversely affect our liquidity and may make it more difficult to
execute our strategy or to effectively compete. |
| ● | We have generated limited revenue to date from product sales and may never be profitable. |
| ● | We may be unable to obtain regulatory approval for GDA-201 or any future product candidates. |
| ● | The results of earlier studies and trials may not be predictive of future trial results, and our clinical
trials may fail to adequately demonstrate the safety and efficacy of our product candidates. |
| ● | Interim, “topline” and preliminary data from our clinical trials that we announce or publish
from time to time may change as more patient data become available and are subject to audit and verification procedures that could result
in material changes in the final data. |
| ● | The success of our NAM technology platform and our product candidates is substantially dependent on developments
within the emerging field of cellular therapies, some of which are beyond our control. |
| ● | Because GDA-201 is based on novel technologies, it is difficult to predict the time and cost of development
and our ability to successfully complete clinical development of GDA-201 and obtain the necessary regulatory approvals for commercialization. |
| ● | We may find it difficult to enroll patients in our clinical studies, which could delay or prevent us from
proceeding with clinical trials. |
| ● | Omisirge, GDA-201, or any future product candidates and the administration process may cause undesirable
side effects or have other properties that could delay or prevent their regulatory approval, limit the commercial profile of an approved
label or result in significant negative consequences following marketing approval, and result in costly and damaging product liability
claims against us. |
| ● | Even if we complete the necessary clinical trials, we cannot predict when, or if, we will obtain regulatory
approval to commercialize GDA-201 or any of our future product candidates, and the approval may be for a narrower indication than we seek
or be subject to other limitations or restrictions that limit its commercial profile. |
| ● | Enacted and future healthcare legislation may increase the difficulty and cost for us to commercialize
Omisirge and obtain marketing approval for and commercialize GDA-201 and may affect the prices we set. |
| ● | Our business operations and current and future relationships with investigators, healthcare professionals,
consultants, third-party payers, patient organizations and customers will be subject to applicable healthcare regulatory laws, which could
expose us to penalties. |
| ● | Legislative or regulatory healthcare reforms in the United States may make it more difficult and costly
for us to obtain regulatory clearance or approval of our product candidates and to produce, market and distribute our products after clearance
or approval is obtained. |
| ● | We may rely on third parties to conduct certain elements of our preclinical studies and clinical trials
and perform other tasks for us. If these third parties do not successfully carry out their contractual duties, meet expected deadlines
or comply with regulatory requirements, we may not be able to obtain regulatory approval for or commercialize our product candidates. |
| ● | We rely on a single facility to manufacture Omisirge that is located in Kiryat Gat, Israel, proximate
to the ongoing hostilities between Israel and Hamas in and around the Gaza Strip. Damage to this site from such hostilities or otherwise
could have a material adverse effect on our ability to manufacture Omisirge and generate revenue. |
| ● | We rely on our ability to import starting materials into Israel (including cord blood units, or CBUs)
to manufacture Omisirge and our ability to export Omisirge manufactured for a given patient. If the conflict between Israel and Hamas
affects the flow of air travel into and out of Ben Gurion Airport in Tel Aviv, it could have a material adverse impact on our ability
to manufacture and deliver Omisirge and generate revenue. |
| ● | We face a variety of challenges and uncertainties associated with our dependence on the availability of
human CBUs at cord blood banks for the manufacture of Omisirge. |
| ● | If we are unable to obtain, maintain or protect intellectual property rights related to Omisirge, GDA-201
or any future product candidates, we may not be able to compete effectively in our market. |
| ● | Due to our limited resources and access to capital, we must, and have in the past decided to, prioritize
development of certain product candidates over other potential candidates. These decisions may prove to have been wrong and may adversely
affect our revenue. |
| ● | The market price of our ordinary shares may fluctuate significantly, which could result in substantial
losses by our investors. |
| ● | The exchange of some or all of the 2021 Notes or 2022 Note into our ordinary shares could result in significant
dilution to existing shareholders, adversely affect the market price of our ordinary shares and impair our ability to raise capital through
the sale of additional equity securities. |
| ● | Significant parts of our operations are located in Israel and, therefore, our results may be adversely
affected by political, economic and military conditions in Israel, including the recent attack by Hamas and other terrorist organizations
from the Gaza Strip and Israel’s war against them. |
Implications of Being an “Emerging Growth Company”
We qualify as an “emerging growth company”
as defined in the Jumpstart our Business Startups Act of 2012, or the JOBS Act. As an emerging growth company, we may take advantage
of specified reduced reporting and other burdens that are otherwise applicable generally to public companies. These provisions include:
| ● | an exemption from the auditor attestation requirement in the assessment of our internal control over financial
reporting pursuant to Section 404 of the Sarbanes-Oxley Act of 2002, or the Sarbanes-Oxley Act; and |
| ● | reduced disclosure obligations regarding executive compensation in our periodic reports and other filings and exemptions from the
requirements of holding a non-binding advisory vote on executive compensation, including golden parachute compensation. |
We may take advantage of these provisions for
up to five years or such earlier time that we are no longer an emerging growth company. We will remain an emerging growth company
until the earliest of (i) December 31, 2023; (ii) the last day of the fiscal year in which we have total annual gross
revenues of $1.235 billion or more; (iii) the date on which we have issued more than $1.0 billion in non-convertible debt
during the previous three years; or (iv) the date on which we are deemed to be a large accelerated filer under the rules of
the SEC, which means the market value of our ordinary shares that are held by non-affiliates equals or exceeds $700.0 million
as of the prior June 30.
In this prospectus, we have taken advantage of
certain of the reduced reporting requirements as a result of being an emerging growth company. Accordingly, the information contained
herein may be different than the information you receive from other public companies in which you hold equity securities.
THE OFFERING
Ordinary shares offered by us |
Ordinary shares, par value NIS 0.01 per share, having an aggregate offering price of up to $50,000,000. |
|
|
Plan of Distribution |
“At the market offering” that may be made from time to time through our sales agent, Jefferies LLC. See “Plan of Distribution.” |
|
|
Use of Proceeds |
We intend to use the net proceeds from this offering for (i) commercialization activities to support the launch of Omisirge; (ii) the continued clinical development of GDA-201; and (iii) general corporate purposes, including general and administrative expenses and working capital. See “Use of Proceeds” on page S-10 of this prospectus. |
|
|
Risk Factors |
Investing in our securities involves significant risks. See the information under the heading “Risk Factors” beginning on page S-6 of this prospectus and in the documents incorporated by reference into this prospectus for a discussion of factors you should carefully consider before deciding to invest in our securities. |
|
|
Nasdaq Global Market symbol |
Our ordinary shares are listed for trading on the Nasdaq Global Market under the symbol “GMDA.” |
RISK FACTORS
Investing in our ordinary shares may involve
a high degree of risk. Before deciding whether to invest in our ordinary shares, you should carefully consider the risks and uncertainties
described under the sections captioned “Risk Factors” contained in our most recent Annual Report on Form 10-K, and in our
subsequent Quarterly Reports on Form 10-Q, as well as any amendments thereto reflected in subsequent filings with the SEC, which are incorporated
by reference in this prospectus in their entirety, together with other information in this prospectus, the information and documents incorporated
by reference herein and therein, and in any free writing prospectus that we have authorized for use in connection with this offering.
If any of these risks actually occurs, our business, financial condition, cash flows and results of operations could be negatively impacted.
In that case, the trading price of our ordinary shares would likely decline and you might lose all or part of your investment. Additional
risks and uncertainties not presently known to us or that we currently deem immaterial also may impair our business operations.
Risks Related to our Securities and this Offering
Our management will have broad discretion
in the use of the net proceeds we receive in this offering and may allocate the net proceeds from this offering in ways that you and other
shareholders may not approve.
Our management will have broad discretion in the
use of the net proceeds, including for any of the purposes described in the section entitled “Use of Proceeds,” and you will
not have the opportunity as part of your investment decision to assess whether the net proceeds are being used appropriately. Because
of the number and variability of factors that will determine our use of the net proceeds from this offering, their ultimate use may vary
substantially from their currently intended use. The failure of our management to use these funds effectively could harm our business.
Pending their use, we may invest the net proceeds from this offering in short-term, investment-grade, interest-bearing securities
and depositary institutions. These investments may not yield a favorable return to our shareholders.
Investors in this offering may experience
immediate and substantial dilution.
The public offering price of the ordinary shares
offered pursuant to this prospectus may be higher than the net tangible book value per share of our ordinary shares. Therefore, if you
purchase securities in this offering, you may incur immediate and substantial dilution in the net tangible book value per share from the
price per share that you pay. If the holders of outstanding options to acquire ordinary shares exercise those options at prices below
the public offering price, you would incur further dilution. See the section entitled “Dilution” herein for a more detailed
discussion of the dilution associated with this offering.
Because we do not intend to declare cash dividends
on our ordinary shares in the foreseeable future, shareholders must rely on appreciation of the value of our ordinary shares for any return
on their investment and may not receive any funds without selling their ordinary shares.
We have never declared or paid cash dividends
on our ordinary shares and do not anticipate declaring or paying any cash dividends in the foreseeable future. As a result, we expect
that only appreciation of the price of our ordinary shares, if any, will provide a return to investors in this offering for the foreseeable
future. In addition, because we do not pay cash dividends, if our shareholders want to receive funds in respect of our ordinary shares,
they must sell their ordinary shares to do so.
You may experience future dilution
as a result of future equity offerings.
In order to raise additional capital, we expect
to in the future offer additional ordinary shares or other securities convertible into or exchangeable for our ordinary shares. We cannot
assure you that we will be able to sell shares or other securities in any other offering at a price per share that is equal to or greater
than the price per share paid by investors in this offering, and investors purchasing shares or other securities in the future could have
rights superior to existing stockholders. The price per share at which we sell additional ordinary shares or other securities convertible
into or exchangeable for our ordinary shares in future transactions may be higher or lower than the price per share in this offering.
Sales of a substantial number of our ordinary shares in the public
market could cause our share price to fall.
Sales of a substantial number of our ordinary
shares in the public market could occur at any time. These sales, or the perception in the market that we or the holders of a large number
of our shares intend to sell shares, could reduce the market price of our ordinary shares.
It is not possible to predict the aggregate proceeds resulting
from sales made under the sale agreement.
Subject to certain limitations in the sale agreement
and compliance with applicable law, we have the discretion to deliver a placement notice to Jefferies, at any time throughout the term
of the sale agreement. The number of shares that are sold through Jefferies after delivering a placement notice will fluctuate based on
a number of factors, including the market price of our ordinary shares during the sales period, any limits we may set with Jefferies in
any applicable placement notice and the demand for our ordinary shares. Because the price per ordinary share of each share sold pursuant
to the sale agreement will fluctuate over time, it is not currently possible to predict the aggregate proceeds to be raised in connection
with sales under the sale agreement.
Sales of ordinary shares offered hereby will be in “at
the market offerings,” and investors who buy shares at different times will likely pay different prices.
Investors who purchase ordinary shares in this
offering at different times will likely pay different prices, and accordingly may experience different levels of dilution and different
outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing, prices and number of ordinary
shares sold in this offering. In addition, subject to the final determination by our board of directors or any restrictions we may place
in any applicable placement notice delivered to Jefferies, there is no minimum or maximum sales price for ordinary shares to be sold in
this offering. Investors may experience a decline in the value of the ordinary shares they purchase in this offering as a result of sales
made at prices lower than the prices they paid.
U.S. Holders may suffer adverse tax consequences
if we are characterized as a “passive foreign investment company” for U.S. federal income tax purposes.
Generally, for any taxable year, if at least 75%
of our gross income is passive income, or at least 50% of the value of our assets (generally determined based on a weighted quarterly
average) is attributable to assets that produce, or are held for the production of, passive income, we would be a “passive foreign
investment company,” or PFIC, for U.S. federal income tax purposes. For purposes of these tests, passive income generally includes
dividends, interest, certain gains from the sale or exchange of investment property, and rents and royalties (other than rents and royalties
received from unrelated parties in connection with the active conduct of a trade or business), and passive assets generally include cash.
Additionally, we generally are treated as holding and receiving directly our proportionate share of the assets and income, respectively,
of any corporation in which we own, directly or indirectly, 25% of its stock by value.
Our status as a PFIC generally will depend on
the nature and composition of our income, and the nature, composition, and value of our assets (which generally will be determined based
on the fair market value of each asset, with the value of goodwill and going concern value determined in large part by reference to the
market value of our ordinary shares from time to time, which may be volatile). If our market capitalization declines while we hold a substantial
amount of cash for any taxable year, we may be a PFIC for such taxable year. The manner and timeframe in which we spend the cash we raise
in this and any other offering, the transactions we enter into, and how our corporate structure may change in the future will affect the
nature and composition of our income and assets. Our PFIC status may depend, in part, on the treatment of payments we receive (including
government grants), which is uncertain, and the magnitude of such payments compared to passive income from investments. Based on the value
of our assets, including goodwill, and the nature and composition of our income and assets, we believe that we were not a PFIC for the
taxable year ended December 31, 2022, but due to changes in the nature and composition of our income and our market capitalization,
we may be a PFIC for our current taxable year. Because the determination of whether we are a PFIC for any taxable year is a factual determination
made annually after the end of each taxable year by applying principles and methodologies that in some circumstances are unclear and subject
to varying interpretation, there can be no assurance that we will not be a PFIC for any taxable year, and our U.S. counsel expresses
no opinion with respect to our PFIC status for any taxable year.
If we are a PFIC for any taxable year during which a U.S. Holder (as
defined below) holds our ordinary shares, such U.S. Holder may suffer adverse tax consequences, including having gains realized on the
sale of our ordinary shares treated as ordinary income, rather than capital gain, the loss of the preferential rate applicable to dividends
received on our ordinary shares by individual U.S. holders, and having interest charges apply to distributions by us and the proceeds
of sales of our ordinary shares. See the section entitled “Certain Material U.S. Federal Income Tax Consequences” for further
information.
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement and
the information incorporated by reference in this prospectus and any prospectus supplement contain forward-looking statements within the
meaning of Section 27A of the Securities Act, and Section 21E of the Exchange Act of 1934, as amended, or the Exchange Act, that involve
substantial risks and uncertainties. Although our forward-looking statements reflect the good faith judgment of our management, these
statements can only be based on facts and factors currently known by us. Consequently, these forward-looking statements are inherently
subject to risks and uncertainties, and actual results and outcomes may differ materially from results and outcomes discussed in the forward-looking
statements.
All statements other than present and historical
facts and conditions contained in this prospectus, any prospectus supplement and the information incorporated by reference in this prospectus
and any prospectus supplement including statements regarding our future results of operations and financial positions, business strategy,
plans and our objectives for future operations, are forward-looking statements. The words “anticipate,” “believe,”
“continue” “could,” “estimate,” “expect,” “intend,” “may,” “might,”
“ongoing,” “objective,” “plan,” “potential,” “predict,” “should,”
“will” and “would,” or the negative of these and similar expressions identify forward-looking statements. Forward-looking
statements include, but are not limited to, statements about:
| ● | our estimates regarding the commercial potential of, and our commercialization plans for our
allogenic cell therapy, Omisirge (omidubicel-onlv), including our plans to manufacture Omisirge at a commercial scale at our Kiryat
Gat facility; |
| ● | the clinical utility and potential advantages of Omisirge and any of our product candidates; |
| ● | the timing, progress and conduct of our clinical trial of GDA-201; |
| ● | our plans regarding utilization of regulatory pathways that would allow for accelerated marketing approval in the United States, the
European Union and other jurisdictions; |
| ● | our recurring losses from operations, our estimates regarding anticipated capital requirements and our needs for additional sources
of financing or a commercial or strategic partnership to support a more fulsome commercial launch of Omisirge; |
| ● | anticipated cost savings from our strategic restructuring and our financial runway; |
| ● | our expectations regarding when certain patents may be issued and the protection and enforcement of our intellectual property rights; |
| ● | our plans regarding the maintenance of intellectual property rights to our preclinical NK cell pipeline; |
| ● | our ability to manufacture Omisirge and any product candidates at levels sufficient for commercialization or clinical development,
as applicable; |
| ● | our ability to maintain relationships with certain third parties; |
| ● | our planned level of capital expenditures; |
| ● | the impact of government laws and regulations; and |
| ● | the effects that geopolitical events or economic conditions may have on us. |
As a result of these factors, we cannot assure
you that the forward-looking statements in this prospectus will prove to be accurate. Furthermore, if our forward-looking statements prove
to be inaccurate, the inaccuracy may be material. In light of the significant uncertainties in these forward-looking statements, you should
not regard these statements as a representation or warranty by us or any other person that we will achieve our objectives and plans in
any specified time frame or at all. We undertake no obligation to publicly update any forward-looking statements, whether as a result
of new information, future events or otherwise, except as required by law.
You should read this prospectus, any applicable
prospectus supplement and the information incorporated by reference completely and with the understanding that our actual future results
may be materially different from what we expect. We qualify all of our forward- looking statements by these cautionary statements.
This prospectus, any applicable prospectus supplement
and the information incorporated by reference in this prospectus and any applicable prospectus supplement may contain market data and
industry forecasts that were obtained from industry publications. These data involve a number of assumptions and limitations, and you
are cautioned not to give undue weight to such estimates. While we believe the market position, market opportunity and market size information
included in this prospectus, any applicable prospectus supplement and the information incorporated by reference in this prospectus and
any applicable prospectus supplement is generally reliable, such information is inherently imprecise.
In addition, statements that “we believe”
and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available
to us as of the date the statements were made, and while we believed such information formed a reasonable basis for such statements at
the time they were made, such information may be limited or incomplete, and our statements should not be read to indicate that we have
conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain
and you are cautioned not to unduly rely upon these statements.
USE OF PROCEEDS
We may issue and sell ordinary shares having aggregate
sales proceeds of up to $50,000,000 from time to time. Because there is no minimum offering amount required as a condition to close this
offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. There can
be no assurance that we will sell any shares under or fully utilize the sales agreement with Jefferies as a source of financing.
We intend to use the net proceeds from this offering
as follows:
| ● | commercialization activities to support the launch of Omisirge; |
| ● | the continued clinical development of GDA-201; and |
| ● | the balance for general corporate purposes, including general and administrative expenses and working capital. |
Although we currently anticipate that we will
use the net proceeds from this offering as described above, there may be circumstances where a reallocation of funds is necessary. Due
to the uncertainties inherent in the clinical development and regulatory approval and commercialization process, it is difficult to estimate
with certainty the exact amounts of the net proceeds from this offering that may be used for any of the above purposes on a stand-alone
basis. Amounts and timing of our actual expenditures will depend upon a number of factors, including our sales, marketing and commercialization
efforts, regulatory approval and demand for our product candidates, operating costs and other factors described under “Risk Factors”
in this prospectus. Accordingly, our management will have flexibility in applying the net proceeds from this offering. An investor will
not have the opportunity to evaluate the economic, financial or other information on which we base our decisions on how to use the proceeds.
As of the date of this prospectus, we cannot specify
with certainty all of the particular uses of the net proceeds from this offering. Accordingly, we will retain broad discretion over the
use of such proceeds. Pending our application of the net proceeds from this offering, we plan to invest such proceeds in short-term, investment-grade,
interest-bearing securities and depositary institutions.
MATERIAL TAX CONSIDERATIONS
The following is a brief summary of certain material
tax consequences concerning the ownership and disposition of our securities by purchasers or holders of our securities. Because parts
of this discussion are based on new or existing tax or other legislation that has not been subject to judicial or administrative interpretation,
there can be no assurance that the views expressed herein will be accepted by the tax or other authorities in question. The summary below
does not address all of the tax consequences that may be relevant to all purchasers or holders of our securities in light of each purchaser’s
or holder’s particular circumstances and specific tax treatment. For example, the summary below does not address the tax treatment
of residents of Israel and traders in securities who are subject to specific tax regimes. As individual circumstances may differ, holders
of our securities should consult their tax advisors as to United States, Israeli or other tax consequences of the purchase, ownership
and disposition of our securities. This discussion is not intended, nor should it be construed, as legal or professional tax advice and
it is not exhaustive of all possible tax considerations. Each individual should consult his or her own tax or legal advisor.
Israeli Taxation
Taxation of Capital Gains Applicable
to Non-Israeli Shareholders
Capital gain tax is imposed on the disposal of
capital assets by a non-Israel resident if those assets are either (i) located in Israel, (ii) are shares or a right to a share in an
Israeli resident corporation, or (iii) represent, directly or indirectly, rights to assets located in Israel, unless a tax treaty between
Israel and the seller’s country of residence provides otherwise. The Israeli Income Tax Ordinance (“Ordinance”) distinguishes
between “Real Capital Gain” and the “Inflationary Surplus”. Real Capital Gain is the excess of the total capital
gain over Inflationary Surplus computed generally on the basis of the increase in the Israeli Consumer Price Index (“CPI”)
between the date of purchase and the date of disposal. The Inflationary Surplus is currently not subject to tax in Israel.
The Real Capital Gain accrued by individuals on
the sale of our ordinary shares (that were purchased after January 1, 2012, whether listed on a stock exchange or not) will be taxed at
the rate of 25%. However, if such shareholder is a “Substantial Shareholder” (i.e., a person who holds, directly or indirectly,
alone or together with such person’s relative or another person who collaborates with such person on a permanent basis, 10% or more
of one of the Israeli resident company’s means of control) at the time of sale or at any time during the preceding twelve (12) months
period and/or claims a deduction for interest and linkage differences expenses in connection with the purchase and holding of such shares,
such gain will be taxed at the rate of 30%. In addition, individual shareholders dealing in securities, or to whom such income is otherwise
taxable as ordinary business income are taxed in Israel at their marginal tax rates applicable to business income (up to 47% in 2023).
The Real Capital Gain derived by corporations
will be generally subject to ordinary corporate tax (23% in 2023).
Notwithstanding the foregoing, capital gain derived
from the sale of our ordinary shares by a non-Israeli resident shareholder (whether an individual or a corporation) generally may be exempt
under the Ordinance from Israeli taxation provided that the following cumulative conditions are met: (i) the shares were purchased upon
or after the Company was listed for trading on Nasdaq (this condition will not apply to shares purchased on or after January 1, 2009),
(ii) such gains were not derived from a permanent business or business activity that the non-Israeli resident maintains in Israel, and
(iii) neither such shareholders nor the particular gain are subject to the Israeli Income Tax Law (Inflationary Adjustments) 5745-1985
(this condition will not apply to shares purchased on or after January 1, 2009). These provisions dealing with capital gain are not applicable
to a person whose gains from selling or otherwise disposing of the shares are deemed to be business income. However, non-Israeli corporations
will not be entitled to the foregoing exemptions if an Israeli resident (i) has a controlling interest of more than 25% in such non-Israeli
corporation or (ii) is the beneficiary of or is entitled to 25% or more of the revenue or profits of such non-Israeli corporation, whether
directly or indirectly.
In addition, the sale of shares may be exempt
from Israeli capital gain tax under the provisions of an applicable tax treaty (subject to the receipt in advance of a valid certificate
from the Israel Tax Authority allowing for an exemption). For example, the U.S.-Israel Double Tax Treaty (the “Treaty”) generally
exempts U.S. resident holding the shares as a capital asset and who is entitled to claim the benefits afforded to such a resident by the
Treaty, (a “Treaty U.S. Resident”), from Israeli capital gain tax in connection with such sale, provided that (i) the U.S.
resident owned, directly or indirectly, less than 10% of an Israeli resident company’s voting power at any time within the 12 month
period preceding such sale, subject to certain conditions; (ii) the seller, being an individual, is present in Israel for a period or
periods of less than 183 days in the aggregate at the taxable year; and (iii) the capital gain from the sale, exchange or disposition
was not derived through a permanent establishment that the U.S. resident maintains in Israel, (iv) the capital gains arising from such
sale, exchange or disposition is not attributed to real estate located in Israel; or (v) the capital gains arising from such sale, exchange
or disposition is not attributed to royalties. If any such case occurs, the sale, exchange or disposition of our ordinary shares would
be subject to Israeli tax, to the extent applicable. However, under the Treaty, a Treaty U.S. Resident would be permitted to claim a credit
for such taxes against U.S. federal income tax imposed on any gain from such sale, exchange or disposition, under the circumstances and
subject to the limitations specified in the Treaty and the U.S. federal income tax laws applicable to foreign tax credits.
In some instances where our shareholders may be
liable for Israeli tax on the sale of their ordinary shares, the payment of the consideration may be subject to withholding of Israeli
tax at source. Shareholders may be required to demonstrate that they are exempt from tax on their capital gains in order to avoid withholding
at source at the time of sale. Specifically, in transactions involving a sale of all of the shares of an Israeli resident company, in
the form of a merger or otherwise, the Israel Tax Authority may require from shareholders who are not liable for Israeli tax to sign declarations
in forms specified by this authority or obtain a specific exemption from the Israel Tax Authority to confirm their status as non-Israeli
resident, and, in the absence of such declarations or exemptions, may require the purchaser of the shares to withhold taxes at source.
Either the purchaser, the Israeli stockbrokers
or financial institution through which the shares are held is obliged, to withhold tax upon the sale of securities on the amount of the
consideration paid upon the sale of the securities at the rate of 25% in respect of an individual, or at a rate of corporate tax, in respect
of a corporation (23% in 2023), unless a valid exemption certificate issued by the Israel Tax Authority is presented prior to the applicable
payment.
At the sale of securities traded on a stock exchange,
a detailed return, including a computation of the tax due, must be filed and an advanced payment must be paid on January 31 and July 31
of every tax year in respect of sales of securities made within the previous six months. However, if all tax due was withheld at source
according to applicable provisions of the Ordinance and regulations promulgated thereunder, the aforementioned return need not be filed
provided that (i) such income was not generated from business conducted in Israel by the taxpayer, (ii) the taxpayer has no other taxable
sources of income in Israel with respect to which a tax return is required to be filed and (iii) the taxpayer is not obliged to pay excess
tax (as further explained below); and no advance payment must be paid. Capital gain is also reportable on the annual income tax return.
Income Taxes on Dividend Distribution
to Non-Israeli Shareholders
The Ordinance generally provides that a non-Israeli
resident (either individual or corporation) is subject to an Israeli income tax on the receipt of dividends at the rate of 25% (30% if
the dividends recipient is a “Substantial Shareholder” (as defined above), at the time of distribution or at any time during
the preceding 12 months period) or 20% if the dividend is distributed from income attributed to a Preferred Enterprise. Such dividends
are generally subject to Israeli withholding tax at a rate of 25% so long as the shares are registered with a Nominee Company (whether
the recipient is a Substantial Shareholder or not), and 20% if the dividend is distributed from income attributed to a Preferred Enterprise
(subject to the receipt in advance of a valid certificate from the Israel Tax Authority allowing for a reduced tax rate); those rates
may be subject to a reduced tax rate under the provisions of an applicable double tax treaty (subject to the receipt in advance of a valid
certificate from the Israel Tax Authority allowing for a reduced tax rate).
For example, under the Treaty the following rates
will apply in respect of dividends distributed by an Israeli resident company to a Treaty U.S. Resident: (i) if the Treaty U.S. Resident
is a corporation which holds during that portion of the taxable year which precedes the date of payment of the dividend and during the
whole of its prior taxable year (if any), at least 10% of the outstanding shares of the voting shares of the Israeli resident paying corporation
and not more than 25% of the gross income of the Israeli resident paying corporation for such prior taxable year (if any) consists of
certain type of interest or dividends – the maximum tax rate of withholding is 12.5%, and (ii) in all other cases, the tax rate
is 25%, or the domestic rate (if such is lower). The aforementioned rates under the Treaty will not apply if the dividend income was derived
through a permanent establishment that the Treaty U.S. Resident maintains in Israel. U.S. residents who are subject to Israeli withholding
tax on a dividend may be entitled to a credit or deduction for United States federal income tax purposes in the amount of the taxes withheld,
subject to detailed rules contained in U.S. tax legislation.
A non-Israeli resident who receives dividend income
derived from or accrued from Israel, from which the full amount of tax was withheld at source, is generally exempt from the obligation
to file tax returns in Israel with respect to such income, provided that (i) such income was not generated from business conducted in
Israel by the taxpayer, and (ii) the taxpayer has no other taxable sources of income in Israel with respect to which a tax return is required
to be filed and (iii) the taxpayer is not obliged to pay excess tax (as further explained below).
Payers of dividends on our shares, including the
Israeli shareholder effectuating the transaction, or the financial institution through which the securities are held, are generally required,
subject to any of the foregoing exemption, reduced tax rates and the demonstration of a shareholder of his, her or its foreign residency,
to withhold taxes upon the distribution of dividends at a rate of 25% provided that the shares are registered with a Nominee Company (for
corporations and individuals).
Surcharge Tax
Individuals who are subject to tax in Israel are
also subject to an additional tax at a rate of 3%, on annual income exceeding a certain threshold (NIS 698,280 for 2023 which amount is
linked to the annual change in the Israeli consumer price index), including, but not limited to income derived from dividends, interest
and capital gains.
Certain Material U.S. Federal Income Tax Consequences
The following discussion describes certain material
U.S. federal income tax consequences relating to the ownership and disposition of our ordinary shares by U.S. Holders (as defined
below). This discussion applies to U.S. Holders that purchase our ordinary shares pursuant to the offering covered by the Sale Agreement
Prospectus and hold such ordinary shares as capital assets within the meaning of Section 1221 of the U.S. Internal Revenue Code
of 1986, as amended, or the Code. This discussion is based on the Code, U.S. Treasury regulations promulgated thereunder and administrative
and judicial interpretations thereof, all as in effect on the date hereof and all of which are subject to change or differing interpretation,
possibly with retroactive effect. This discussion does not address all of the U.S. federal income tax consequences that may be relevant
to specific U.S. Holders in light of their particular circumstances, or to U.S. Holders subject to special treatment under U.S. federal
income tax law (such as banks and certain other financial institutions, insurance companies, pension plans, cooperatives, broker-dealers
and traders in securities or other persons that generally mark their securities to market for U.S. federal income tax purposes, tax-exempt
entities (including private foundations), governmental organizations, retirement plans, regulated investment companies, real estate investment
trusts, certain former citizens or long-term residents of the United States, persons that hold our ordinary shares as part of a “straddle,”
“hedge,” “conversion transaction,” “synthetic security” or integrated investment, persons who received
our ordinary shares pursuant to the exercise of employee stock options or otherwise as compensation for services, persons that have a
“functional currency” other than the U.S. dollar, persons that own directly, indirectly or through attribution 10% or
more of our stock by vote or value, persons that hold our ordinary shares in connection with a trade or business, permanent establishment
or fixed place of business outside the United States, corporations that accumulate earnings to avoid U.S. federal income tax
and partnerships (or entities and arrangements that are classified as partnerships for U.S. federal income tax purposes) and other
pass-through entities (and investors therein). This discussion does not address any U.S. state or local or non-U.S. tax consequences,
any U.S. federal estate, gift, or alternative minimum tax consequences, the potential application of the Medicare contribution tax
on net investment income, or the special tax accounting rules under Section 451(b) of the Code.
As used in this discussion, the term “U.S. Holder”
means a beneficial owner of our ordinary shares that is eligible for the benefits of the Treaty and that is, for U.S. federal income
tax purposes, (1) an individual who is a citizen or resident of the United States, (2) a corporation (or entity treated
as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state
thereof, or the District of Columbia, (3) an estate the income of which is subject to U.S. federal income tax regardless of
its source or (4) a trust (x) with respect to which a court within the United States is able to exercise primary supervision
over its administration and one or more United States persons have the authority to control all of its substantial decisions or (y) that
has elected under applicable U.S. Treasury regulations to be treated as a U.S. Person for U.S. federal income tax purposes.
If a partnership (or an entity or arrangement
treated as a partnership for U.S. federal income tax purposes) holds our ordinary shares, the U.S. federal income tax consequences
relating to an investment in our ordinary shares will depend in part upon the status of the partner, the activities of the partnership,
and certain determinations made at the partner level. Any partnership and partner should consult their tax advisors regarding the tax
consequences of the ownership and disposition of our ordinary shares in their particular circumstances.
Prospective investors considering an investment in our ordinary
shares should consult their tax advisors regarding the income and non-income tax consequences under U.S. federal, state, and local
tax laws and non-U.S. tax laws relating to the ownership and disposition of our ordinary shares in their particular circumstances.
Passive Foreign Investment Company
Consequences
Generally, for any taxable year, if at least 75%
of our gross income is passive income, or at least 50% of the value of our assets (generally determined based on a weighted quarterly
average) is attributable to assets that produce, or are held for the production of, passive income, we would be a “passive foreign
investment company,” or PFIC, for U.S. federal income tax purposes. For purposes of these tests, passive income generally includes
dividends, interest, certain gains from the sale or exchange of investment property, and rents and royalties (other than rents and royalties
received from unrelated parties in connection with the active conduct of a trade or business), and passive assets generally include cash.
Additionally, we generally are treated as holding and receiving directly our proportionate share of the assets and income, respectively,
of any corporation in which we own, directly or indirectly, 25% of its stock by value.
Our status as a PFIC generally will depend on
the nature and composition of our income, and the nature, composition, and value of our assets (which generally will be determined based
on the fair market value of each asset, with the value of goodwill and going concern value determined in large part by reference to the
market value of our ordinary shares from time to time, which may be volatile). If our market capitalization declines while we hold a substantial
amount of cash for any taxable year, we may be a PFIC for such taxable year. The manner and timeframe in which we spend the cash we raise
in this and any other offering, the transactions we enter into, and how our corporate structure may change in the future will affect the
nature and composition of our income and assets. Our PFIC status may depend, in part, on the treatment of payments we receive (including
government grants), which is uncertain, and the magnitude of such payments compared to passive income from investments. Based on the value
of our assets, including goodwill, and the nature and composition of our income and assets, we believe that we were not a PFIC for the
taxable year ended December 31, 2022, but due to changes in the nature and composition of our income and market capitalization, we
may be a PFIC for any taxable year is a factual determination made annually after the end of each taxable year by applying principles
and methodologies that in some circumstances are unclear and subject to varying interpretation, there can be no assurance that we will
not be a PFIC for any taxable year, and our U.S. counsel expresses no opinion with respect to our PFIC status for any taxable year.
If we are a PFIC for any taxable year during which
a U.S. Holder holds our ordinary shares, regardless of whether we continue to be a PFIC, the U.S. Holder could be liable for
additional taxes and interest charges under the “PFIC excess distribution regime” on (1) a distribution paid during a
taxable year that is greater than 125% of the average annual distributions paid in the three preceding taxable years, or, if shorter,
the U.S. Holder’s holding period for the ordinary shares and (2) any gain recognized on a sale, exchange or other disposition,
including a pledge, of the ordinary shares. Additionally, under the PFIC excess distribution regime, (i) the tax on such distribution
or gain would be determined by allocating such distribution or gain ratably over the U.S. Holder’s holding period for the ordinary
shares, (ii) the amount of such distribution or gain allocated to the taxable year in which such distribution occurs or such gain
is recognized and any taxable year prior to the first taxable year in which we are a PFIC will be taxed as ordinary income earned in the
taxable year in which such distribution occurs or such gain is recognized and (iii) the amount allocated to each other taxable year
will be taxed at the highest marginal rates in effect for individuals or corporations, as applicable, for each such taxable year and an
interest charge, generally applicable to underpayments of tax, will be added to the tax. The tax for the amount allocated to taxable years
prior to the taxable year in which such distribution occurs or such gain is recognized cannot be offset by any net operating losses for
such taxable years, and any such gain (but not loss) recognized cannot be treated as capital gain, even if the U.S. Holder holds
our ordinary shares as capital assets.
If we pay a dividend to a non-corporate U.S. Holder
and we are a PFIC for the taxable year in which the dividend is paid or the preceding taxable year, such dividend generally will not qualify
for taxation at preferential capital gains tax rate even if we are a “qualified foreign corporation” and certain other requirements
are met (see discussion below under “—Distributions”).
If we are a PFIC for any taxable year during which
a U.S. Holder holds our ordinary shares, we must generally continue to be treated as a PFIC by the U.S. Holder for all succeeding
taxable years during which the U.S. Holder holds the ordinary shares, unless we cease to meet the requirements for PFIC status
and the U.S. Holder makes a valid “deemed sale” election with respect to the ordinary shares. If the election is made,
the U.S. Holder will be deemed to sell the ordinary shares at their fair market value on the last day of the last taxable year
in which we were a PFIC, and any gain recognized from such deemed sale will be taxed under the PFIC excess distribution regime. After
the deemed sale election, the U.S. Holder’s ordinary shares will not be treated as shares in a PFIC unless we subsequently
become a PFIC. Each U.S. Holder of our ordinary shares is advised to consult its tax advisors regarding the availability and
desirability of making a deemed sale election.
If we are a PFIC for any taxable year during which
a U.S. Holder holds our ordinary shares and one of our non-U.S. corporate subsidiaries (if any) is also a PFIC, or a lower-tier
PFIC, the U.S. Holder generally will be treated as owning a proportionate amount (by value) of the shares of the lower-tier PFIC
and will be taxed under the PFIC excess distribution regime on distributions by the lower-tier PFIC and on gain from the disposition of
shares of the lower-tier PFIC even though the U.S. Holder might not receive the proceeds of such distributions or disposition. Each
U.S. Holder is advised to consult its tax advisors regarding the application of the PFIC rules to our non-U.S. subsidiaries.
If we are a PFIC for any taxable year during which
a U.S. Holder holds our ordinary shares, the U.S. Holder will not be subject to the PFIC excess distribution regime if the U.S. Holder
makes a valid “mark-to-market” election with respect to the ordinary shares. A mark-to-market election is available to the
U.S. Holder only if the ordinary shares are “marketable stock.” Our ordinary shares will be marketable stock as long
as they remain listed on the Nasdaq Global Market and are “regularly traded,” other than in de minimis quantities, on at least
15 days during each calendar quarter. If a mark-to-market election is in effect, the U.S. Holder generally will take into account,
as ordinary income for each taxable year, the excess of the fair market value of the ordinary shares over the adjusted tax basis of such
ordinary shares at the end of such taxable year. The U.S. Holder will also take into account, as ordinary loss for each taxable year,
the excess of the adjusted tax basis of the ordinary shares over the fair market value of such ordinary shares at the end of such taxable
year, but only to the extent of any net mark-to-market gain previously included in income. The U.S. Holder’s tax basis in the
ordinary shares will be adjusted to reflect any income or loss recognized as a result of the mark-to-market election. Any gain from a
sale, exchange or other disposition of the U.S. Holder’s ordinary shares in any taxable year in which we are a PFIC will be
treated as ordinary income and any loss from such sale, exchange or other disposition will be treated first as ordinary loss (to the extent
of any net mark-to-market gains previously included in income) and thereafter as capital loss. Once made, a mark-to-market election cannot
be revoked without the consent of the U.S. Internal Revenue Service, or the IRS, unless our ordinary shares cease to be marketable
stock.
A mark-to-market election will not apply to our
ordinary shares for any taxable year during which we are not a PFIC, but will remain in effect with respect to any subsequent taxable
year in which we become a PFIC. Such election generally will not apply to any of our non-U.S. subsidiaries (if any), unless
the shares in such non-U.S. subsidiaries are themselves marketable stock. Accordingly, a U.S. Holder of our ordinary shares
may continue to be subject to tax under the PFIC excess distribution regime with respect to any lower-tier PFICs, notwithstanding the
U.S. Holder’s mark-to-market election with respect to our ordinary shares. Each U.S. Holder of our ordinary shares is
advised to consult its tax advisors regarding the availability and desirability of making a mark-to-market election, including the impact
of such election with respect to any lower-tier PFICs.
The tax consequences that would apply if we were
a PFIC would also be different from those described above if a U.S. Holder of our ordinary shares were able to make a valid “qualified
electing fund,” or QEF, election. At this time, if we are a PFIC for our current taxable year, we intend to provide U.S. Holders
of our ordinary shares a “PFIC Annual Information Statement” with the information necessary to make a QEF election.
If a U.S. Holder makes a QEF election, the U.S.
Holder will be subject to current taxation on its pro rata share of our ordinary earnings and net capital gain for each taxable year that
we are classified as a PFIC. Furthermore, any distributions paid by us out of our earnings and profits that were previously included in
the U.S. Holder’s income under the QEF election will not be taxable to the U.S. Holder. The U.S. Holder will increase its tax basis
in its ordinary shares by an amount equal to any income included under the QEF election and will decrease its tax basis by any amount
distributed on the ordinary shares that is not included in the U.S. Holder’s income. In addition, the U.S. Holder will recognize
capital gain or loss on the disposition of its ordinary shares in an amount equal to the difference between the amount realized and the
U.S. Holder’s adjusted tax basis in the ordinary shares. If the U.S. Holder does not make and maintain a QEF election for the U.S.
Holder’s entire holding period for our ordinary shares by making the election for the first taxable year in which the U.S. Holder
acquired our ordinary shares, the U.S. Holder will be subject to the PFIC excess distribution regime discussed above, unless the U.S.
Holder can properly make a “purging election” with respect to our ordinary shares in connection with the U.S. Holder’s
QEF election. A purging election may require the U.S. Holder to recognize taxable gain on the U.S. Holder’s ordinary shares. No
purging election is necessary for a U.S. Holder that timely makes a QEF election for the first taxable year in which the U.S. Holder acquired
our ordinary shares.
If we are a PFIC, U.S. Holders should consult
their tax advisors to determine whether any of the elections discussed above would be available and, if so, what the tax consequences
of the alternative tax treatments would be in their particular circumstances.
Each U.S. person that is an investor of a
PFIC is generally required to file an annual information return on IRS Form 8621 containing such information as the U.S. Treasury
Department may require. The failure to file IRS Form 8621 could result in the imposition of penalties and the extension of the statute
of limitations with respect to U.S. federal income tax.
The U.S. federal income tax rules relating to PFICs are very
complex. Prospective U.S. investors in our ordinary shares are strongly urged to consult their tax advisors regarding our PFIC status,
the impact of such status on the ownership and disposition of our ordinary shares, any elections that might be available with respect
to our ordinary shares if we were a PFIC and all related information reporting obligations.
Distributions
Subject to the discussion above under “—Passive
Foreign Investment Company Consequences,” a U.S. Holder of our ordinary shares that receives a distribution with respect to
our ordinary shares generally will be required to include the gross amount of such distribution (before reduction for any Israeli withholding
taxes withheld therefrom) in gross income as a dividend when actually or constructively received to the extent of the U.S. Holder’s
pro rata share of our current and/or accumulated earnings and profits (as determined under U.S. federal income tax principles). To
the extent a distribution received by the U.S. Holder is not a dividend because it exceeds the U.S. Holder’s pro rata
share of our current and accumulated earnings and profits, it will be treated first as a tax-free return of capital and reduce (but not
below zero) the adjusted tax basis of the U.S. Holder’s ordinary shares. To the extent the distribution exceeds the adjusted
tax basis of the U.S. Holder’s ordinary shares, the remainder will be taxed as capital gain. We may not account for our earnings
and profits in accordance with U.S. federal income tax principles, and U.S. Holders of our ordinary shares should expect all
distributions from us to be reported to them as dividends. Such dividends will not be eligible for the dividends-received deduction generally
allowed to corporate shareholders with respect to dividends received from U.S. corporations.
Dividends paid to non-corporate U.S. Holders
by a “qualified foreign corporation” are currently eligible, as “qualified dividend income,” for taxation at preferential
capital gains rate rather than the marginal tax rates generally applicable to ordinary income, provided that certain requirements (including
conditions relating to holding period) are met. However, as discussed above under “—Passive Foreign Investment Company Consequences”),
if we are a PFIC for the taxable year in which the dividend is paid or the preceding taxable year, we will not be treated as a qualified
foreign corporation, and therefore the preferential capital gains tax rate will not apply.
A non-U.S. corporation (other than a corporation
that is a PFIC for the taxable year in which the dividend is paid or the preceding taxable year) generally will be a qualified foreign
corporation (1) if it is eligible for the benefits of a comprehensive tax treaty with the United States that the Secretary of
Treasury of the United States determines is satisfactory for purposes of this provision and that includes an exchange of information
provision or (2) with respect to any dividend it pays on its ordinary shares that are readily tradable on an established securities
market in the United States. We believe that we qualify as a resident of Israel for purposes of, and are eligible for the benefits
of, the Treaty, although there can be no assurance in this regard. Further, the IRS has determined that the Treaty is satisfactory for
purposes of the qualified dividend income rules and that it includes an exchange of information provision. Therefore, subject to the discussion
above under “—Passive Foreign Investment Company Consequences,” if the Treaty is applicable, dividends paid by us generally
will be qualified dividend income in the hands of individual U.S. Holders of our ordinary shares, provided that certain requirements
(including conditions relating to holding period) are met. Each U.S. Holder is advised to consult its tax advisors regarding the
availability of the preferential capital gains tax rate on dividends paid by us. Distributions on our ordinary shares that are treated
as dividends generally will be included in the income of a U.S. Holder of our ordinary shares on the date of the U.S. Holder’s
actual or constructive receipt of such dividends. The amount of any dividend income paid in foreign currency will be the U.S. dollar
amount calculated by reference to the exchange rate in effect on the date of such receipt, regardless of whether such dividend income
is in fact converted into U.S. dollars. If such dividend income is converted into U.S. dollars on the date of such receipt,
the U.S. Holder will not be required to recognize foreign currency gain or loss. If such dividend income is converted into U.S. dollars
after the date of such receipt, the U.S. Holder may have foreign currency gain or loss.
Distributions on our ordinary shares that are
treated as dividends generally will constitute income from sources outside the United States for U.S. foreign tax credit purposes
and generally will be categorized as passive category income. Subject to applicable limitations, some of which vary depending on a U.S. Holder’s
particular circumstances, Israeli income taxes withheld from dividends on our ordinary shares at a tax rate not exceeding the tax rate
provided by the Treaty will be creditable against the U.S. Holder’s U.S. federal income tax liability. The rules governing
U.S. foreign tax credits are complex and U.S. Holders of our ordinary shares should consult their tax advisers regarding the
creditability of foreign taxes in their particular circumstances. Recently issued U.S. Treasury regulations may in some circumstances
prohibit a U.S. person from claiming a foreign tax credit with respect to certain non-U.S. taxes that are not creditable under
applicable income tax treaties. In lieu of claiming a U.S. foreign tax credit, a U.S. Holder of our ordinary shares may, at
such U.S. Holder’s election, deduct foreign taxes, including any Israeli income tax, in computing their taxable income, subject
to generally applicable limitations under U.S. law. An election to deduct foreign taxes instead of claiming U.S. foreign tax
credits applies to all foreign taxes paid or accrued in the taxable year.
Sale, Exchange or Other Disposition
of Ordinary Shares
Subject to the discussion above under “—Passive
Foreign Investment Company Consequences,” a U.S. Holder of our ordinary shares generally will recognize capital gain or loss
for U.S. federal income tax purposes on the sale, exchange or other disposition of the ordinary shares in an amount equal to the
difference, if any, between the amount realized (i.e., the amount of cash plus the fair market value of any property received) on the
sale, exchange or other disposition and the U.S. Holder’s adjusted tax basis in the ordinary shares. Such capital gain or loss
generally will be long-term capital gain taxable at a preferential tax rate for non-corporate U.S. Holders or long-term capital loss
if, on the date of sale, exchange or other disposition, the ordinary shares were held by the U.S. Holder for more than one year.
Any capital gain of a non-corporate U.S. Holder of our ordinary shares that is not long-term capital gain is taxed at ordinary income
rates. The deductibility of capital losses is subject to limitations. Any gain or loss recognized from the sale, exchange or other disposition
of our ordinary shares generally will be gain or loss from sources within the United States for U.S. foreign tax credit purposes.
If the proceeds received by the U.S. Holder
are not paid in U.S. dollars, the amount realized will be the U.S. dollar value of the payment received determined by reference
to the spot rate of exchange on the date of the sale, exchange or other disposition. However, if the ordinary shares are traded on an
established securities market and the U.S. Holder is either a cash basis taxpayer or an accrual basis taxpayer that has made a special
election to determine the amount realized using the spot rate on the settlement date (which must be consistently applied from year to
year and cannot be changed without the consent of the IRS), the U.S. Holder will determine the U.S. dollar value of the amount
realized in a non-U.S. dollar currency by translating the amount received at the spot rate of exchange on the settlement date of
the sale, exchange or other disposition. If the U.S. Holder is an accrual basis taxpayer that is not eligible to make or does not
make the special election, the U.S. Holder will recognize foreign currency gain or loss to the extent of any difference between the
U.S. dollar amount realized on the date of sale, exchange or other disposition and the U.S. dollar value of the amount received
at the spot rate of exchange on the settlement date of the sale, exchange or other disposition.
Information Reporting and Backup Withholding
U.S. Holders of our ordinary shares may be
required to file certain U.S. information returns with the IRS with respect to an investment in our ordinary shares, including, among
others, IRS Form 8938 (Statement of Specified Foreign Financial Assets). As described above under “Passive Foreign Investment
Company Consequences,” each U.S. Holder who is a shareholder of a PFIC must file an annual report containing certain information.
U.S. Holders paying more than $100,000 for ordinary shares may be required to file IRS Form 926 (Return by a U.S. Transferor
of Property to a Foreign Corporation) reporting this payment. Substantial penalties may be imposed on a U.S. Holder that fails to
comply with the required information reporting.
Dividends on and proceeds from the sale or other
disposition of our ordinary shares may be reported to the IRS unless the U.S. Holder of our ordinary shares establishes a basis for
exemption. Backup withholding (currently at a rate of 24%) may apply to amounts subject to reporting if the U.S. Holder (1) fails
to provide an accurate United States taxpayer identification number or otherwise establish a basis for exemption or (2) is described
in certain other categories of persons. However, U.S. Holders of our shares that are corporations are generally excluded from these
information reporting and backup withholding tax rules. Backup withholding is not an additional tax. Any amounts withheld under the backup
withholding rules generally will be allowed as a refund or a credit against the U.S. Holder’s U.S. federal income tax
liability if the required information is furnished by the U.S. Holder on a timely basis to the IRS.
U.S. Holders should consult their tax advisors
regarding the backup withholding and information reporting rules in their particular circumstances.
THE DISCUSSION ABOVE IS FOR GENERAL INFORMATIONAL
PURPOSES ONLY AND IS NOT TAX ADVICE. PROSPECTIVE INVESTORS IN OUR ORDINARY SHARES SHOULD CONSULT THEIR TAX ADVISORS REGARDING THE
U.S. FEDERAL, STATE, AND LOCAL AND NON-U.S. INCOME AND NON-INCOME TAX CONSEQUENCES OF THE OWNERSHIP AND DISPOSITION OF OUR ORDINARY
SHARES IN THEIR PARTICULAR CIRCUMSTANCES, INCLUDING ALL RELATED INFORMATION REPORTING REQUIREMENTS AND THE IMPACT OF ANY POTENTIAL CHANGE
IN LAW.
DILUTION
If you invest in our ordinary shares in this offering,
your ownership interest will be immediately diluted to the extent of the difference between the public offering price per share and the
as adjusted net tangible book value per ordinary share after this offering. Net tangible book value per ordinary share is calculated by
dividing the net tangible book value, which is tangible assets less total liabilities, by the number of ordinary shares outstanding. Our
net tangible book value as of September 30, 2023 was $0.4 million, or $0.003 per ordinary share.
After giving effect to the sale of 84,745,763
ordinary shares in this offering at an assumed public offering price of $0.59 per share, which was the last reported sale price of our
ordinary shares on the Nasdaq Global Market on November 13, 2023, and after deducting commissions and other estimated offering expenses
payable by us, our as adjusted net tangible book value as of September 30, 2023 would have been approximately $216.7 million, or $0.22
per ordinary share. This amount would represent an immediate increase in the net tangible book value of $0.22 per ordinary share to our
existing shareholders and an immediate and substantial dilution in net tangible book value of $0.37 per ordinary share to new investors
purchasing ordinary shares in this offering. The following table illustrates this per share dilution:
Assumed offering price per share | |
| | | |
$ | 0.59 | |
Net tangible book value per share as of September 30, 2023 | |
$ | 0.003 | | |
| | |
Increase in net tangible book value per share attributable to new investors | |
$ | 0.22 | | |
| | |
As adjusted net tangible book value per share after this offering | |
| | | |
$ | 0.22 | |
Net dilution per share to new investors in this offering | |
| | | |
$ | 0.37 | |
The table above assumes for illustrative purposes
that an aggregate of 84,745,763 ordinary shares are sold at a price of $0.59 per share, the last reported sales price of our ordinary
shares on the Nasdaq Global Market on November 13, 2023, for aggregate proceeds of approximately $48.2 million, net of issuance expenses.
The shares sold in this offering, if any, will be sold from time to time at various prices.
The number of ordinary shares issued and outstanding,
actual and as adjusted shown in the foregoing table and calculations excludes:
|
● |
7,108,234 ordinary shares reserved for issuance upon the exercise of outstanding options as of September 30, 2023, at a weighted average exercise price of 3.85 per share; |
|
● |
1,330,282 ordinary shares reserved for issuance upon the settlement of restricted share units as of September 30, 2023; |
|
● |
2,025,064 ordinary shares reserved for future issuance under our 2017 Share Incentive Plan, as of September 30, 2023, as well as any automatic increases in the number of ordinary shares reserved for future issuance under this plan; |
|
● |
4,542,369 ordinary shares reserved for potential issuance upon exchange of outstanding notes under a first lien secured note, or the 2022 Note, held by certain funds managed by Highbridge Capital Management, LLC, or Highbridge; |
|
● |
6,334,455 ordinary shares reserved for issuance upon the exchange of outstanding convertible notes held by certain funds managed by Highbridge as of September 30, 2023; and |
|
● |
17,466,730 ordinary shares issuable upon exercise of warrants as of September 30, 2023; and |
|
● |
718,726 ordinary shares issued pursuant to our “at-the-market” offering program since September 30, 2023. |
To the extent that options outstanding as of
September 30, 2023 may be exercised or any ordinary shares are issued to funds managed by Highbridge upon the exchange of the notes held
by such funds, investors purchasing our securities in this offering may experience further dilution.
PLAN OF DISTRIBUTION
We have previously entered into a sale agreement
with Jefferies, under which we may offer and sell our ordinary shares from time to time through Jefferies acting as agent. In accordance
with the terms of the sale agreement, under this prospectus, we may offer and sell shares of our ordinary shares having an aggregate offering
price of up to $50,000,000. Sales of our ordinary shares, if any, under this prospectus will be made by any method that is deemed to be
an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act.
Each time we wish to issue and sell our ordinary
shares under the sale agreement, we will notify Jefferies of the number of shares to be issued, the dates on which such sales are anticipated
to be made, any limitation on the number of shares to be sold in any one day and any minimum price below which sales may not be made.
Once we have so instructed Jefferies, unless Jefferies declines to accept the terms of such notice, Jefferies has agreed to use its commercially
reasonable efforts consistent with its normal trading and sales practices to sell such shares up to the amount specified on such terms.
The obligations of Jefferies under the sale agreement to sell our ordinary shares are subject to a number of conditions that we must meet.
The settlement of sales of shares between us and
Jefferies is generally anticipated to occur on the second trading day following the date on which the sale was made. Sales of our ordinary
shares as contemplated in this prospectus will be settled through the facilities of The Depository Trust Company or by such other means
as we and Jefferies may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
We will pay Jefferies a commission equal to 3.0%
of the aggregate gross proceeds we receive from each sale of our ordinary shares. Because there is no minimum offering amount required
as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable
at this time. In addition, we agreed to reimburse Jefferies for the fees and disbursements of its counsel, payable upon execution of the
sale agreement, in an amount not to exceed $95,000, in addition to certain ongoing disbursements of its legal counsel. We estimate that
the total expenses for the offering, excluding any commissions or expense reimbursement payable to Jefferies under the terms of the sale
agreement, will be approximately $400,000. The remaining sale proceeds, after deducting any other transaction fees, will equal our net
proceeds from the sale of such shares.
Jefferies will provide written confirmation to
us before the open on The Nasdaq Global Market on the day following each day on which our ordinary shares are sold under the sale agreement.
Each confirmation will include the number of shares sold on that day, the aggregate gross proceeds of such sales and the proceeds to us.
In connection with the sale of our ordinary shares
on our behalf, Jefferies will be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation
of Jefferies will be deemed to be underwriting commissions or discounts. We have agreed to indemnify Jefferies against certain civil liabilities,
including liabilities under the Securities Act. We have also agreed to contribute to payments Jefferies may be required to make in respect
of such liabilities.
The offering of our ordinary shares pursuant to
the sale agreement will terminate upon the earlier of (i) the sale of all ordinary shares subject to the sale agreement and (ii) the termination
of the sale agreement as permitted therein. We and Jefferies may each terminate the sale agreement at any time upon ten trading days’
prior notice.
This summary of the material provisions of the
sale agreement does not purport to be a complete statement of its terms and conditions. A copy of the sale agreement is filed as an exhibit
to the registration statement of which this prospectus forms a part.
Jefferies and its affiliates may in the future
provide various investment banking, commercial banking, financial advisory and other financial services for us and our affiliates, for
which services they may in the future receive customary fees. In the course of its business, Jefferies may actively trade our securities
for its own account or for the accounts of customers, and, accordingly, Jefferies may at any time hold long or short positions in such
securities.
A prospectus in electronic format may be made
available on a website maintained by Jefferies, and Jefferies may distribute the prospectus electronically.
ENFORCEMENT OF
CIVIL LIABILITIES
We are incorporated under the laws of the State
of Israel. Service of process upon us and any Israeli experts named in this prospectus, may be difficult to obtain within the United States.
Furthermore, because most of our assets are located outside the United States, any judgment obtained in the United States against us may
not be collectible within the United States.
We have irrevocably appointed Gamida Cell Inc.
as our agent to receive service of process in any action against us in any U.S. federal or state court arising out of this offering or
any purchase or sale of securities in connection with any offering described in this prospectus. The address of our agent is 116 Huntington
Avenue, 7th Floor, Boston, Massachusetts 02116.
We have been informed by our legal counsel in
Israel, Meitar | Law Offices, that it may be difficult to initiate an action with respect to U.S. securities law in Israel. Israeli courts
may refuse to hear a claim based on an alleged violation of U.S. securities laws reasoning that Israel is not the most appropriate forum
to hear such a claim. In Israeli courts, the content of applicable U.S. law must be proved as a fact by expert witnesses which can be
a time-consuming and costly process and certain matters of procedure may be governed by Israeli law.
Subject to certain time limitations and legal
procedures, Israeli courts may enforce a U.S. judgment in a civil matter which, subject to certain exceptions, is non-appealable, including
judgments based upon the civil liability provisions of the Securities Act and the Exchange Act and including a monetary or compensatory
judgment in a non-civil matter, provided that:
| ● | the judgment was rendered by a court which was, according to the laws of the state of the court, competent
to render the judgment; |
| ● | the obligation imposed by the judgment is enforceable according to the rules relating to the enforceability of judgments in Israel
and the substance of the judgment is not contrary to public policy; and |
| ● | the judgment is executory in the state in which it was given. |
Even if these conditions are met, an Israeli court
will not declare a foreign civil judgment enforceable if:
| ● | the judgment was given in a state whose laws do not provide for the enforcement of judgments of Israeli
courts (subject to exceptional cases); |
| ● | the enforcement of the judgment is likely to prejudice the sovereignty or security of the State of Israel; |
| ● | the judgment was obtained by fraud; |
| ● | the opportunity given to the defendant to bring its arguments and evidence before the court was not reasonable in the opinion of the
Israeli court; |
| ● | the judgment was rendered by a court not competent to render it according to the laws of private international law as they apply in
Israel; |
| ● | the judgment is contradictory to another judgment that was given in the same matter between the same parties and that is still valid;
or |
| ● | at the time the action was brought in the foreign court, a lawsuit in the same matter and between the same parties was pending before
a court or tribunal in Israel. |
LEGAL MATTERS
The validity of the issuance of our ordinary shares
offered in this prospectus and certain other matters of Israeli law will be passed upon for us by Meitar | Law Offices, Israel. Certain
matters of U.S. federal law will be passed upon for us by Cooley LLP, New York, New York. Jefferies LLC is being represented in connection
with this offering by Latham & Watkins LLP, San Diego, California.
EXPERTS
The consolidated financial statements as of December 31,
2022 and 2021 and for each of the three years in the period ended December 31, 2022 incorporated by reference into this prospectus
have been audited by Kost, Forer, Gabbay & Kasierer, a member of Ernst & Young Global, independent registered public
accounting firm, as set forth in their report thereon (which contain an explanatory paragraph describing conditions that raise substantial
doubt about the Company’s ability to continue as a going concern as described in the notes to the consolidated financial statements)
incorporated by reference herein, and are included in reliance upon such report given on the authority of such firm as experts in accounting
and auditing. The address of Kost Forer Gabbay & Kasierer is 144 Menachem Begin Road, Tel Aviv, Israel.
WHERE YOU CAN FIND
MORE INFORMATION
This prospectus is part of the registration statement
on Form S-3 we filed with the SEC under the Securities Act. This prospectus does not contain all of the information set forth in the registration
statement and the exhibits to the registration statement. For further information with respect to us and the securities we are offering
under this prospectus, we refer you to the registration statement and the exhibits and schedules filed as a part of the registration statement.
You should rely only on the information contained in this prospectus or incorporated by reference. We have not authorized anyone else
to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted.
You should not assume that the information in this prospectus is accurate as of any date other than the date on the front cover of this
prospectus, regardless of the time of delivery of this prospectus or any sale of the securities offered by this prospectus.
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. The SEC maintains a website that contains reports, proxy and information statements
and other information regarding issuers that file electronically with the SEC, including Gamida Cell. The address of the SEC website is
www.sec.gov.
We maintain a website at www.gamida-cell.com.
Information contained in or accessible through our website does not constitute a part of this prospectus.
INCORPORATION OF
CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference”
into this prospectus the information we have filed with the SEC. This means that we can disclose important information by referring you
to another document filed separately with the SEC. The information incorporated by reference is considered to be a part of this prospectus,
and information that we file later with the SEC will also be deemed to be incorporated by reference into this prospectus and to be a part
hereof from the date of filing of such documents and will automatically update and supersede previously filed information, including information
contained in this document.
We incorporate by reference into this prospectus
the following documents that we have filed with the SEC:
| ● | Our Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on March 31, 2023; |
| ● | Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023 and September 30, 2023, filed with the SEC
on May 15, 2023, August 14, 2023, and November 14, 2023, respectively; |
| ● | our Current Reports on Form 8-K filed with the SEC on January
9, 2023, January
19, 2023, January
30, 2023, March 20, 2023, March
27, 2023, April 17,
2023, April 21,
2023, May 19,
2023, May 22,
2023, August 14,
2023, September 27,
2023, October 20,
2023 and November 15, 2023, to the extent the information in such reports is filed and not furnished; and |
| ● | The description of our ordinary shares contained in our Registration Statement on Form 8-A, filed with the SEC on October
23, 2018, as amended on March
25, 2022, as the description therein has been updated and superseded by the description of our capital stock contained
in Exhibit 4.1 to our Annual Report on Form 10-K for the year ended December 31, 2022, including any further
amendments or reports filed for the purposes of updating this description. |
We also incorporate by reference into this prospectus
all documents (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on
such form that are related to such items) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act (i) after the date of the initial filing of the registration statement of which this prospectus forms a part and
prior to effectiveness of the registration statement, or (ii) after the date of this prospectus but prior to the termination of the
offering.
We will furnish without charge to each person,
including any beneficial owner, to whom a prospectus is delivered, on written or oral request, a copy of any or all of the documents incorporated
by reference in this prospectus, including exhibits to these documents. You should direct any requests for documents, either in writing
to Gamida Cell Ltd., 116 Huntington Avenue, 7th Floor, Boston, MA 02116, Attn: Chief Financial Officer or by telephone (617) 892-9080.
Any statement contained in a document incorporated
or deemed to be incorporated by reference in this prospectus or any applicable prospectus supplement will be deemed modified, superseded
or replaced for purposes of this prospectus or any applicable prospectus supplement to the extent that a statement contained in any other
subsequently filed document that also is or is deemed to be incorporated by reference in this prospectus or any applicable prospectus
supplement modifies, supersedes or replaces such statement. Any statement that is modified or superseded will not constitute a part of
this prospectus or any applicable prospectus supplement, except as modified or superseded.
Up to $50,000,000
Ordinary Shares
PROSPECTUS
Jefferies
,
2023
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth an estimate of
the fees and expenses, other than the underwriting discounts and commissions, payable by us in connection with the issuance and distribution
of the securities being registered. All the amounts shown are estimates, except for the SEC registration fee and the FINRA filing fee.
SEC registration fee | |
$ | 22,140 | |
Printing and engraving expenses | |
| (1 | ) |
Legal fees and expenses | |
| (1 | ) |
Accounting fees and expenses | |
| (1 | ) |
Miscellaneous | |
| (1 | ) |
Total | |
$ | (1 | ) |
(1) | The
amount of securities and number of offerings are indeterminable and the expenses cannot be estimated at this time. |
Item 15. Indemnification of Directors, Officers and Employees
Under the Israeli Companies Law, a company may
not exculpate an office holder from liability for a breach of the duty of loyalty. A company may exculpate an office holder in advance
from liability to the company, in whole or in part, for damages caused to the company as a result of a breach of the duty of care but
only if a provision authorizing such exculpation is included in its articles of association. Our amended and restated articles of association
include such a provision. An Israeli company may not exculpate a director from liability arising out of a breach of the duty of care with
respect to a dividend or distribution to shareholders.
Under the Israeli Companies Law and the Securities
Law, 5728-1968, or the Securities Law, a company may indemnify an office holder in respect of the following liabilities, payments and
expenses incurred for acts performed as an office holder, either pursuant to an undertaking made in advance of an event or following an
event, provided a provision authorizing such indemnification is contained in its articles of association:
| ● | a monetary liability incurred by or imposed on him or her in favor of another person pursuant to a judgment,
including a settlement or arbitrator’s award approved by a court. However, if an undertaking to indemnify an office holder with
respect to such liability is provided in advance, then such undertaking must be limited to certain events which, in the opinion of the
board of directors, can be foreseen based on the company’s activities when the undertaking to indemnify is given, and to an amount
or according to criteria determined by the board of directors as reasonable under the circumstances, and such undertaking shall detail
the foreseen events and described above amount or criteria; |
| ● | reasonable litigation expenses, including reasonable attorneys’ fees, incurred by the office holder as (1) a result of an investigation
or proceeding instituted against him or her by an authority authorized to conduct such investigation or proceeding, provided that (i)
no indictment was filed against such office holder as a result of such investigation or proceeding; and (ii) no financial liability was
imposed upon him or her as a substitute for the criminal proceeding as a result of such investigation or proceeding or, if such financial
liability was imposed, it was imposed with respect to an offense that does not require proof of criminal intent; or (2) in connection
with a monetary sanction; a monetary liability imposed on him or her in favor of an injured party at an Administrative Procedure (as defined
below) pursuant to Section 52(54)(a)(1)(a) of the Securities Law; |
| ● | expenses incurred by an office holder in connection with an Administrative Procedure under the Securities Law, including reasonable
litigation expenses and reasonable attorneys’ fees; and |
| ● | reasonable litigation expenses, including attorneys’ fees, incurred by the office holder or imposed by a court in proceedings
instituted against him or her by the company, on its behalf or by a third party or in connection with criminal proceedings in which the
office holder was acquitted or as a result of a conviction for an offense that does not require proof of criminal intent. |
“Administrative Procedure” is defined
as a procedure pursuant to chapters H3 (Monetary Sanction by the Israeli Securities Authority), H4 (Administrative Enforcement Procedures
of the Administrative Enforcement Committee) or I1 (Arrangement to prevent Procedures or Interruption of procedures subject to conditions)
to the Securities Law.
Under the Israeli Companies Law and the Securities
Law, a company may insure an office holder against the following liabilities incurred for acts performed by him or her as an office holder
if and to the extent provided in the company’s articles of association:
| ● | a breach of duty of care to the company or to a third party, to the extent such a breach arises out of
the negligent conduct of the office holder; |
| ● | a breach of duty of loyalty to the company, provided that the office holder acted in good faith and had a reasonable basis to believe
that the act would not harm the company; |
| ● | a monetary liability imposed on the office holder in favor of a third party; |
| ● | a monetary liability imposed on the office holder in favor of an injured party at an Administrative Procedure pursuant to Section
52(54)(a)(1)(a) of the Securities Law; and |
| ● | expenses incurred by an office holder in connection with an Administrative Procedure, including reasonable litigation expenses and
reasonable attorneys’ fees. |
Under the Israeli Companies Law, a company may
not indemnify, exculpate or insure an office holder against any of the following:
| ● | a breach of duty of loyalty, except for indemnification and insurance for a breach of the duty of loyalty
to the company to the extent that the office holder acted in good faith and had a reasonable basis to believe that the act would not harm
the company; |
| ● | a breach of the duty of care committed intentionally or recklessly, excluding a breach arising out of the negligent conduct of the
office holder; |
| ● | an act or omission committed with intent to derive illegal personal benefit; or |
| ● | a fine or forfeit levied against the office holder. |
Under the Israeli Companies Law, exculpation,
indemnification and insurance of office holders must be approved by the compensation committee and the board of directors and, with respect
to certain office holders or under certain circumstances, also by the shareholders. See “Item 10.—Directors, Executive Officers
and Corporate Governance—Fiduciary duties and approval of specified related party transactions under Israeli law” of our Annual
Report on Form 10-K filed on March 31, 2023.
Our amended and restated articles of association
permit us to, exculpate, indemnify and insure our office holders as permitted under the Israeli Companies Law. Our office holders are
currently covered by a directors and officers’ liability insurance policy. As of the date of this registration statement, no claims
for directors’ and officers’ liability insurance have been filed under this policy, we are not aware of any pending or threatened
litigation or proceeding involving any of our directors or officers in which indemnification is sought, nor are we aware of any pending
or threatened litigation that may result in claims for indemnification by any director or officer.
We have entered into agreements with each of our
directors and executive officers exculpating them, to the fullest extent permitted by law, from liability to us for damages caused to
us as a result of a breach of duty of care, and undertaking to indemnify them to the fullest extent permitted by law. The insurance is
subject to our discretion depending on its availability, effectiveness and cost. Effective as November 17, 2021, the maximum amount set
forth in such agreements is (1) with respect to indemnification in connection with a public offering by the Company of our securities,
the gross proceeds raised by us and/or any selling shareholder in such public offering, and (2) with respect to all other permitted indemnification,
the greater of (i) an amount equal to 25% of our shareholders’ equity on a consolidated basis, according to the Company’s
most recent financial statements as of the time of the actual payment of indemnification; (ii) $150 million and (iii) 40% of the Company
Total Market Cap, which means the average closing price of the Company’s ordinary shares over the 30 trading days prior to the actual
payment of indemnification multiplied by the total number of issued and outstanding shares of the Company as of the date of actual payment).
In the opinion of the SEC, indemnification of directors and executive officers for liabilities arising under the Securities Act however,
is against public policy and therefore unenforceable.
Item 16. Exhibits.
The following exhibits are filed herewith:
* | To be filed by amendment or as an exhibit to a report filed
under the Securities Exchange Act of 1934 and incorporated herein by reference. |
** | To be filed, if applicable, in accordance with the requirements
of Section 305(b)(2) of the Trust Indenture Act of 1939 and Rule 5b-3 thereunder. |
Item 17. Undertakings
(a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement.
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
provided, however, that:
(A) the
undertakings set forth in Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(4) That,
for the purpose of determining liability under the Securities Act to any purchaser,
(i) each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the registration statement; and
(ii) each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule
430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by
section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such effective date.
(5) That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) For
purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933, as amended, and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to
file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Trust Indenture
Act.
SIGNATURES
Pursuant to the requirement of the Securities
Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, the City
of Boston, State of Massachusetts on November 15, 2023.
|
GAMIDA CELL LTD. |
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By: |
/s/ Abigail Jenkins |
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Abigail Jenkins
President and Chief Executive Officer |
POWER OF ATTORNEY
Each person whose signature appears below constitutes
and appoints Abigail Jenkins, Terry Coelho and Josh Patterson, and each of them singly, his or her true and lawful attorneys-in-fact and
agents, with full power to any of them, and to each of them singly, to sign for him or her and in his or her name in the capacities indicated
below the registration statement on Form S-3 filed herewith, and any and all pre-effective and post-effective amendments to said registration
statement, and any registration statement filed pursuant to Rule 462(b) under the Securities Act, as amended, in connection with the said
registration under the Securities Act, as amended, and to file or cause to be filed the same, with all exhibits thereto and other documents
in connection therewith, with the SEC, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as each
of them might or could do in person, and hereby ratifying and confirming all that said attorneys, and each of them, shall do or cause
to be done by virtue of this Power of Attorney.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
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Title |
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Date |
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/s/ Abigail Jenkins |
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President, Chief Executive Officer and Director |
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November 15, 2023 |
Abigail Jenkins |
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(Principal Executive Officer) |
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/s/ Terry Coelho |
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Chief Financial Officer |
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November 15, 2023 |
Terry Coelho |
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(Principal Financial Officer and Principal Accounting Officer) |
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/s/ Shawn Tomasello |
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Chairwoman of the Board of Directors |
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November 15, 2023 |
Shawn Tomasello |
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/s/ Julian Adams |
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Director |
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November 15, 2023 |
Julian Adams |
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/s/ Ivan Borrello |
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Director |
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November 15, 2023 |
Ivan Borrello |
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/s/ Kenneth I. Moch |
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Director |
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November 15, 2023 |
Kenneth I. Moch |
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/s/ Stephen T. Wills |
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Director |
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November 15, 2023 |
Stephen T. Wills |
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Gamida Cell Inc.
By: |
/s/ Abigail Jenkins |
|
AUTHORIZED U.S. REPRESENTATIVE |
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November 15, 2023 |
|
Abigail Jenkins, President and Chief Executive Officer |
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II-6
Exhibit 4.2
GAMIDA CELL LTD.,
Issuer
AND
[TRUSTEE],
Trustee
INDENTURE
Dated as of [·], 20__
Debt Securities
Table Of Contents
| |
| |
Page |
ARTICLE 1 DEFINITIONS | |
1 |
Section 1.01 | |
Definitions of Terms | |
1 |
| |
| |
|
ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES | |
5 |
Section 2.01 | |
Designation and Terms of Securities | |
5 |
Section 2.02 | |
Form of Securities and Trustee’s Certificate | |
8 |
Section 2.03 | |
Denominations: Provisions for Payment | |
8 |
Section 2.04 | |
Execution and Authentications | |
9 |
Section 2.05 | |
Registration of Transfer and Exchange | |
10 |
Section 2.06 | |
Temporary Securities | |
11 |
Section 2.07 | |
Mutilated, Destroyed, Lost or Stolen Securities | |
12 |
Section 2.08 | |
Cancellation | |
12 |
Section 2.09 | |
Benefits of Indenture | |
13 |
Section 2.10 | |
Authenticating Agent | |
13 |
Section 2.11 | |
Global Securities | |
14 |
Section 2.12 | |
CUSIP Numbers | |
15 |
| |
| |
|
ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS | |
15 |
Section 3.01 | |
Redemption | |
15 |
Section 3.02 | |
Notice of Redemption | |
15 |
Section 3.03 | |
Payment Upon Redemption | |
16 |
Section 3.04 | |
Sinking Fund | |
17 |
Section 3.05 | |
Satisfaction of Sinking Fund Payments with Securities | |
17 |
Section 3.06 | |
Redemption of Securities for Sinking Fund | |
17 |
| |
| |
|
ARTICLE 4 COVENANTS | |
18 |
Section 4.01 | |
Payment of Principal, Premium and Interest | |
18 |
Section 4.02 | |
Maintenance of Office or Agency | |
18 |
Section 4.03 | |
Paying Agents | |
18 |
Section 4.04 | |
Appointment to Fill Vacancy in Office of Trustee | |
19 |
Table Of Contents
(continued)
| |
| |
Page |
ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE | |
20 |
Section 5.01 | |
Company to Furnish Trustee Names and Addresses of Securityholders | |
20 |
Section 5.02 | |
Preservation Of Information; Communications With Securityholders | |
20 |
Section 5.03 | |
Reports by the Company | |
20 |
Section 5.04 | |
Reports by the Trustee | |
21 |
| |
| |
|
ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT | |
21 |
Section 6.01 | |
Events of Default | |
21 |
Section 6.02 | |
Collection of Indebtedness and Suits for Enforcement by Trustee | |
23 |
Section 6.03 | |
Application of Moneys Collected | |
24 |
Section 6.04 | |
Limitation on Suits | |
25 |
Section 6.05 | |
Rights and Remedies Cumulative; Delay or Omission Not Waiver | |
25 |
Section 6.06 | |
Control by Securityholders | |
26 |
Section 6.07 | |
Undertaking to Pay Costs | |
26 |
| |
| |
|
ARTICLE 7 CONCERNING THE TRUSTEE | |
27 |
Section 7.01 | |
Certain Duties and Responsibilities of Trustee | |
27 |
Section 7.02 | |
Certain Rights of Trustee | |
28 |
Section 7.03 | |
Trustee Not Responsible for Recitals or Issuance or Securities | |
30 |
Section 7.04 | |
May Hold Securities | |
30 |
Section 7.05 | |
Moneys Held in Trust | |
30 |
Section 7.06 | |
Compensation and Reimbursement | |
31 |
Section 7.07 | |
Reliance on Officer’s Certificate | |
31 |
Section 7.08 | |
Disqualification; Conflicting Interests | |
32 |
Section 7.09 | |
Corporate Trustee Required; Eligibility | |
32 |
Section 7.10 | |
Resignation and Removal; Appointment of Successor | |
32 |
Section 7.11 | |
Acceptance of Appointment By Successor | |
33 |
Section 7.12 | |
Merger, Conversion, Consolidation or Succession to Business | |
34 |
Section 7.13 | |
Preferential Collection of Claims Against the Company | |
35 |
Section 7.14 | |
Notice of Default. | |
35 |
| |
| |
|
ARTICLE 8 CONCERNING THE SECURITYHOLDERS | |
35 |
Section 8.01 | |
Evidence of Action by Securityholders | |
35 |
Section 8.02 | |
Proof of Execution by Securityholders | |
36 |
Section 8.03 | |
Who May be Deemed Owners | |
36 |
Section 8.04 | |
Certain Securities Owned by Company Disregarded | |
36 |
Section 8.05 | |
Actions Binding on Future Securityholders | |
37 |
Table Of Contents
(continued)
| |
| |
Page |
ARTICLE 9 SUPPLEMENTAL INDENTURES | |
37 |
Section 9.01 | |
Supplemental Indentures Without the Consent of Securityholders | |
37 |
Section 9.02 | |
Supplemental Indentures With Consent of Securityholders | |
38 |
Section 9.03 | |
Effect of Supplemental Indentures | |
39 |
Section 9.04 | |
Securities Affected by Supplemental Indentures | |
39 |
Section 9.05 | |
Execution of Supplemental Indentures | |
39 |
| |
| |
|
ARTICLE 10 SUCCESSOR ENTITY | |
40 |
Section 10.01 | |
Company May Consolidate, Etc. | |
40 |
Section 10.02 | |
Successor Entity Substituted | |
40 |
| |
| |
|
ARTICLE 11 SATISFACTION AND DISCHARGE | |
41 |
Section 11.01 | |
Satisfaction and Discharge of Indenture | |
41 |
Section 11.02 | |
Discharge of Obligations | |
41 |
Section 11.03 | |
Deposited Moneys to be Held in Trust | |
42 |
Section 11.04 | |
Payment of Moneys Held by Paying Agents | |
42 |
Section 11.05 | |
Repayment to Company | |
42 |
| |
| |
|
ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS | |
42 |
Section 12.01 | |
No Recourse | |
42 |
| |
| |
|
ARTICLE 13 MISCELLANEOUS PROVISIONS | |
43 |
Section 13.01 | |
Effect on Successors and Assigns | |
43 |
Section 13.02 | |
Actions by Successor | |
43 |
Section 13.03 | |
Surrender of Company Powers | |
43 |
Section 13.04 | |
Notices | |
43 |
Section 13.05 | |
Governing Law; Jury Trial Waiver | |
43 |
Section 13.06 | |
Treatment of Securities as Debt | |
44 |
Section 13.07 | |
Certificates and Opinions as to Conditions Precedent | |
44 |
Section 13.08 | |
Payments on Business Days | |
44 |
Section 13.09 | |
Conflict with Trust Indenture Act | |
44 |
Section 13.10 | |
Counterparts | |
44 |
Section 13.11 | |
Separability | |
45 |
Section 13.12 | |
Compliance Certificates | |
45 |
Section 13.13 | |
Patriot Act | |
45 |
Section 13.14 | |
Force Majeure | |
45 |
Section 13.12 | |
Table of Contents; Headings | |
45 |
INDENTURE
Indenture,
dated as of [·], 20__, among Gamida Cell Ltd., a company organized under the laws of the
State of Israel under company number 51-260120-4 and having its registered office at 116 Huntington Avenue, 7th Floor, Boston, Massachusetts
02116 (the “Company”), and [Trustee], as trustee (the “Trustee”):
Whereas,
for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance
of debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be
issued from time to time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated
by the certificate of the Trustee;
Whereas,
to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture; and
Whereas,
all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
Now,
Therefore, in consideration of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted
and agreed as follows for the equal and ratable benefit of the holders of Securities:
article
1
DEFINITIONS
Section 1.01 Definitions
of Terms.
The terms defined in this
Section (except as in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in
this Section and shall include the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein
or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned
to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution of this instrument.
“Authenticating
Agent” means the Trustee or an authenticating agent with respect to all or any of the series of Securities appointed by
the Trustee pursuant to Section 2.10.
“Bankruptcy Law”
means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors or the equivalent thereof in any other relevant
jurisdiction.
“Board of Directors”
means the Board of Directors (or the functional equivalent thereof) of the Company or any duly authorized committee of such Board.
“Board Resolution”
means a copy of a resolution certified by an Officer of the Company to have been duly adopted by the Board of Directors (or duly authorized
committee thereof, as applicable) and to be in full force and effect on the date of such certification.
“Business Day”
means, with respect to any series of Securities, any day other than a day on which federal or state banking institutions in the Borough
of Manhattan, the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law, executive
order or regulation to close.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Company”
has the meaning set forth in the preamble of this Indenture, and, subject to the provisions of Article Ten, shall also include its successors
and assigns.
“Corporate Trust
Office” means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at
.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Defaulted Interest”
has the meaning set forth in Section 2.03.
“Depositary”
means, with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, another clearing agency, or any successor registered as a clearing agency under the Exchange Act,
or other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01 or
2.11.
“Event of Default”
means, with respect to Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any,
therein designated.
“Exchange Act”
means the United States Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Commission thereunder.
The term “given”,
“mailed”, “notify” or “sent” with respect to any notice
to be given to a Securityholder pursuant to this Indenture, shall mean notice (x) given to the Depositary (or its designee) pursuant to
the standing instructions from the Depositary or its designee, including by electronic mail in accordance with accepted practices or procedures
at the Depositary (in the case of a Global Security) or (y) mailed to such Securityholder by first class mail, postage prepaid, at its
address as it appears on the Security Register (in the case of a definitive Security). Notice so “given” shall be deemed to
include any notice to be “mailed” or “delivered,” as applicable, under this Indenture.
“Global Security”
means a Security issued to evidence all or a part of any series of Securities which is executed by the Company and authenticated and delivered
by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all in accordance with the Indenture, which shall
be registered in the name of the Depositary or its nominee.
“Governmental
Obligations” means securities that are (a) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States of America that, in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated
maturity of the Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to
any such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian
for the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect
of the Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation evidenced by such depositary
receipt.
“herein”,
“hereof” and “hereunder”, and other words of similar import, refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof and shall include the terms of particular series of Securities established as
contemplated by Section 2.01.
“Interest Payment
Date”, when used with respect to any installment of interest on a Security of a particular series, means the date specified
in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which
an installment of interest with respect to Securities of that series is due and payable.
“Officer”
means, with respect to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial
officer, a chief operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any
assistant treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
“Officer’s
Certificate” means a certificate signed by any Officer. Each such certificate shall include the statements provided for
in Section 13.07, if and to the extent required by the provisions thereof.
“Opinion of Counsel”
means an opinion in writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company, that
is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section
13.07, if and to the extent required by the provisions thereof.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore
canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously
been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside
and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if such Securities
or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided
in Article Three, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities in lieu of
or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person”
means any individual, corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated
organization, any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor Security”
of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost, destroyed
or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible Officer”
when used with respect to the Trustee means any officer within the Corporate Trust Office of the Trustee (or any successor group of the
Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because
of his or her knowledge of and familiarity with the particular subject and in each case who shall have direct responsibility for the administration
of this Indenture.
“Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under
this Indenture.
“Securities Act” means
the Securities Act of 1933, as amended.
“Securityholder”,
“holder of Securities”, “registered holder”, or other similar term, means the Person
or Persons in whose name or names a particular Security is registered on the Security Register kept for that purpose in accordance with
the terms of this Indenture.
“Security Register”
and “Security Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary”
means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total
voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries
of such Person.
“Trustee”
has the meaning set forth in the preamble of this Indenture, and, subject to the provisions of Article Seven, shall also include its successors
and assigns, and, if at any time there is more than one Person acting in such capacity hereunder, “Trustee” shall mean each
such Person. The term “Trustee” as used with respect to a particular series of the Securities shall mean the trustee with
respect to that series.
“Trust Indenture
Act” means the Trust Indenture Act of 1939, as amended.
“U.S.A. Patriot
Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001, Pub. L. 107-56, as amended and signed into law October 26, 2001.
article
2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01 Designation
and Terms of Securities.
(a) The
aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may
be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant
to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any series,
there shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one
or more indentures supplemental hereto:
(1) the
title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2) any
limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of that series);
(3) the
maturity date or dates on which the principal of the Securities of the series is payable;
(4) the
form of the Securities of the series including the form of the certificate of authentication for such series;
(5) the
applicability of any guarantees;
(6) whether
or not the Securities will be secured or unsecured, and the terms of any secured debt;
(7) whether
the Securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any subordination;
(8) if
the price (expressed as a percentage of the aggregate principal amount thereof) at which such Securities will be issued is a price other
than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity
thereof, or if applicable, the portion of the principal amount of such Securities that is convertible into another security or the method
by which any such portion shall be determined;
(9) the
interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue,
the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates;
(10) the
Company’s right, if any, to defer the payment of interest and the maximum length of any such deferral period;
(11) if
applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, the Company may at
its option, redeem the series of Securities pursuant to any optional or provisional redemption provisions and the terms of those redemption
provisions;
(12) the
date or dates, if any, on which, and the price or prices at which the Company is obligated, pursuant to any mandatory sinking fund or
analogous fund provisions or otherwise, to redeem, or at the Securityholder’s option to purchase, the series of Securities and the
currency or currency unit in which the Securities are payable;
(13) the
denominations in which the Securities of the series shall be issuable, if other than denominations of one thousand U.S. dollars ($1,000)
or any integral multiple thereof;
(14) any
and all terms, if applicable, relating to any auction or remarketing of the Securities of that series and any security for the obligations
of the Company with respect to such Securities and any other terms which may be advisable in connection with the marketing of Securities
of that series;
(15) whether
the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities; the terms and conditions,
if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Securities; and the Depositary
for such Global Security or Securities;
(16) if
applicable, the provisions relating to conversion or exchange of any Securities of the series and the terms and conditions upon which
such Securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will be calculated
and may be adjusted, any mandatory or optional (at the Company’s option or the holders’ option) conversion or exchange features,
the applicable conversion or exchange period and the manner of settlement for any conversion or exchange, which may, without limitation,
include the payment of cash as well as the delivery of securities;
(17) if
other than the full principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(18) additions
to or changes in the covenants applicable to the series of Securities being issued, including, among others, the consolidation, merger
or sale covenant;
(19) additions
to or changes in the Events of Default with respect to the Securities and any change in the right of the Trustee or the Securityholders
to declare the principal, premium, if any, and interest, if any, with respect to such Securities to be due and payable;
(20) additions
to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
(21) additions
to or changes in the provisions relating to satisfaction and discharge of this Indenture;
(22) additions
to or changes in the provisions relating to the modification of this Indenture both with and without the consent of Securityholders of
Securities issued under this Indenture;
(23) the
currency of payment of Securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars;
(24) whether
interest will be payable in cash or additional Securities at the Company’s or the Securityholders’ option and the terms and
conditions upon which the election may be made;
(25) the
terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if any and principal
amounts of the Securities of the series to any Securityholder that is not a “United States person” for federal tax purposes;
(26) any
restrictions on transfer, sale or assignment of the Securities of the series; and
(27) any
other specific terms, preferences, rights or limitations of, or restrictions on, the Securities, any other additions or changes in the
provisions of this Indenture, and any terms that may be required by us or advisable under applicable laws or regulations.
All Securities of any one
series shall be substantially identical except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures
supplemental hereto.
If any of the terms of the
series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall
be certified by an Officer of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate
of the Company setting forth the terms of the series.
Securities of any particular
series may be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such interest
may be payable and with different redemption dates.
Section 2.02 Form of Securities
and Trustee’s Certificate.
The Securities of any series
and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as
set forth in one or more indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officer’s Certificate,
and they may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed
or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities
exchange on which Securities of that series may be listed, or to conform to usage.
Section 2.03 Denominations:
Provisions for Payment.
The Securities shall be issuable
as registered Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section
2.01(a)(13). The Securities of a particular series shall bear interest payable on the dates and at the rate specified with respect to
that series. Subject to Section 2.01(a)(23), the principal of and the interest on the Securities of any series, as well as any premium
thereon in case of redemption or repurchase thereof prior to maturity, and any cash amount due upon conversion or exchange thereof, shall
be payable in the coin or currency of the United States of America that at the time is legal tender for public and private debt, at the
office or agency of the Company maintained for that purpose. Each Security shall be dated the date of its authentication. Interest on
the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day months.
The interest installment on
any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series
shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business
on the regular record date for such interest installment. In the event that any Security of a particular series or portion thereof is
called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date and prior
to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security as provided in
Section 3.03.
Any interest on any Security
that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein
called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular record
date by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause
(1) or clause (2) below:
(1) The
Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered in the Security Register at the close of business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the special record date therefor to be sent, to each Securityholder not less than 10 days prior
to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been
sent as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered in the Security Register on such special record date.
(2) The
Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee.
Unless otherwise set forth
in a Board Resolution or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section
2.01 hereof, the term “regular record date” as used in this Section with respect to a series of Securities and any Interest
Payment Date for such series shall mean either the fifteenth day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of a month,
or the first day of the month in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur,
if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions
of this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other
Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution
and Authentications.
The Securities shall be signed
on behalf of the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile
signature of any Person who shall have been an Officer (at the time of execution), notwithstanding the fact that at the time the Securities
shall be authenticated and delivered or disposed of such Person shall have ceased to be such an officer of the Company. The Securities
may contain such notations, legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date
of its authentication by the Trustee.
A Security shall not be valid
until authenticated manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive
evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for authentication, together with a written order of the Company for the
authentication and delivery of such Securities, signed by an Officer, and the Trustee in accordance with such written order shall authenticate
and deliver such Securities.
Upon the Company’s delivery
of any such authentication order to the Trustee at any time after the initial issuance of Securities under this Indenture, the Trustee
shall be provided with, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be fully protected in relying
upon, (1) an Opinion of Counsel or reliance letter and (2) an Officer’s Certificate stating that all conditions precedent to the
execution, authentication and delivery of such Securities are in conformity with the provisions of this Indenture.
The Trustee shall not be required
to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights,
duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05 Registration
of Transfer and Exchange.
(a) Securities
of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose, for other
Securities of such series of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient to
cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of any Securities so surrendered
for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the
Security or Securities of the same series that the Securityholder making the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The
Company shall keep, or cause to be kept, at its office or agency designated for such purpose a register or registers (herein referred
to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall
register the Securities and the transfers of Securities as in this Article provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall
be appointed as authorized by Board Resolution or Supplemental Indenture (the “Security Registrar”).
Upon surrender for transfer
of any Security at the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate
and such office or agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series as
the Security presented for a like aggregate principal amount.
The Company initially appoints
the Trustee as Security Registrar for each series of Securities.
All Securities presented or
surrendered for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so required by the Company
or the Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar,
duly executed by the registered holder or by such holder’s duly authorized attorney in writing.
(c) Except
as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in
one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer of
Securities, or issue of new Securities in case of partial redemption of any series or repurchase, conversion or exchange of less than
the entire principal amount of a Security, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not involving any transfer.
(d) The
Company and the Security Registrar shall not be required (i) to issue, exchange or register the transfer of any Securities during a period
beginning at the opening of business 15 days before the day of the sending of a notice of redemption of less than all the Outstanding
Securities of the same series and ending at the close of business on the day of such sending, nor (ii) to register the transfer of or
exchange any Securities of any series or portions thereof called for redemption or surrendered for repurchase, but not validly withdrawn,
other than the unredeemed portion of any such Securities being redeemed in part or not surrendered for repurchase, as the case may be.
The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
The Trustee shall have no
obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation
or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine
the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.06 Temporary
Securities.
Pending the preparation of
definitive Securities of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed,
lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive
Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities,
all as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated
by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities of such
series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series and thereupon any or
all temporary Securities of such series may be surrendered in exchange therefor (without charge to the Securityholders), at the office
or agency of the Company designated for the purpose, and the Trustee shall authenticate and such office or agency shall deliver in exchange
for such temporary Securities an equal aggregate principal amount of definitive Securities of such series, unless the Company advises
the Trustee to the effect that definitive Securities need not be executed and furnished until further notice from the Company. Until so
exchanged, the temporary Securities of such series shall be entitled to the same benefits under this Indenture as definitive Securities
of such series authenticated and delivered hereunder.
Section 2.07 Mutilated,
Destroyed, Lost or Stolen Securities.
In case any temporary or definitive
Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute,
and upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution
for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and
the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft
of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver
the same upon the written request or authorization of any officer of the Company. Upon the issuance of any substituted Security, the Company
may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected therewith.
In case any Security that
has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute
Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant
for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require to save them harmless, and,
in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of
such Security and of the ownership thereof.
Every replacement Security
issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not
the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder.
All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
Section 2.08 Cancellation.
All Securities surrendered
for the purpose of payment, redemption, repurchase, exchange, registration of transfer or conversion shall, if surrendered to the Company
or any paying agent (or any other applicable agent), be delivered to the Trustee for cancellation, or, if surrendered to the Trustee,
shall be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly required or permitted by any of the provisions
of this Indenture. On request of the Company at the time of such surrender, the Trustee shall deliver to the Company canceled Securities
held by the Trustee. In the absence of such request the Trustee may dispose of canceled Securities in accordance with its standard procedures
and deliver a certificate of disposition to the Company. If the Company shall otherwise acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered
to the Trustee for cancellation.
Section 2.09 Benefits
of Indenture.
Nothing in this Indenture
or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders
of the Securities any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the
holders of the Securities.
Section 2.10 Authenticating
Agent.
So long as any of the Securities
of any series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of
such series issued upon exchange, transfer or partial redemption, repurchase or conversion thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder.
All references in this Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating
Agent for such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital
and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized
or in which it is doing business to conduct a trust business, and that is otherwise authorized under such laws to conduct such business
and is subject to supervision or examination by federal or state authorities. If at any time any Authenticating Agent shall cease to be
eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may
at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request
by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating
Agent pursuant hereto.
Section 2.11 Global Securities.
(a) If
the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that
(i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities
of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction (or if the Depositary names the Trustee as its custodian, retained by the
Trustee), and (iv) shall bear a legend substantially to the following effect: “Except as otherwise provided in Section 2.11 of the
Indenture, this Security may be transferred, in whole but not in part, only to another nominee of the Depositary or to a successor Depositary
or to a nominee of such successor Depositary.”
(b) Notwithstanding
the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner provided
in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such series selected or approved
by the Company or to a nominee of such successor Depositary.
(c) If
at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default has occurred
and is continuing and the Company has received a request from the Depositary or from the Trustee, this Section 2.11 shall no longer be
applicable to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate and
deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. In addition,
the Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that the
provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will execute and, subject
to Section 2.04, the Trustee, upon receipt of an Officer’s Certificate evidencing such determination by the Company, will authenticate
and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. Upon the exchange
of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations, the Global Security
shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global Security pursuant to
this Section 2.11(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary
for delivery to the Persons in whose names such Securities are so registered.
Section 2.12 CUSIP Numbers.
The Company in issuing the
Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers
in notices of redemption as a convenience to Securityholders; provided that any such notice may state that no representation is made as
to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance
may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the “CUSIP” numbers.
article
3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem the
Securities of any series issued hereunder on and after the dates and in accordance with the terms established for such series pursuant
to Section 2.01 hereof.
Section 3.02 Notice of
Redemption.
(a) In
case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any series in
accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall cause
the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing (or with regard to
any Global Security held in book entry form, by electronic mail in accordance with the applicable procedures of the Depositary), a notice
of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption of that series to such Securityholders,
unless a shorter period is specified in the Securities to be redeemed. Any notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the registered holder receives the notice. In any case, failure duly to
give such notice to the holder of any Security of any series designated for redemption in whole or in part, or any defect in the notice,
shall not affect the validity of the proceedings for the redemption of any other Securities of such series or any other series. In the
case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with any
such restriction.
Each such notice of redemption
shall identify the Securities to be redeemed (including CUSIP numbers, if any), specify the date fixed for redemption and the redemption
price at which Securities of that series are to be redeemed, and shall state that payment of the redemption price of such Securities to
be redeemed will be made at the office or agency of the Company, upon presentation and surrender of such Securities, that interest accrued
to the date fixed for redemption will be paid as specified in said notice, that from and after said date interest will cease to accrue
and that the redemption is from a sinking fund, if such is the case. If less than all the Securities of a series are to be redeemed, the
notice to the holders of Securities of that series to be redeemed in part shall specify the particular Securities to be so redeemed.
In case any Security is to
be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed,
and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
(b) If
less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice (unless
a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount
of Securities of the series to be redeemed, and thereupon the Securities to be redeemed shall be selected, by lot, on a pro rata basis,
or in such other manner as the Company shall deem appropriate and fair in its discretion and that may provide for the selection of a portion
or portions (equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof) of the principal amount of such Securities
of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Securities to be redeemed, in whole or in part. The Company may, if and whenever it shall so elect, by delivery of instructions
signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or any part of the Securities of a particular
series for redemption and to give notice of redemption in the manner set forth in this Section, such notice to be in the name of the Company
or its own name as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such
paying agent, as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient
to enable the Trustee or such paying agent to give any notice by mail that may be required under the provisions of this Section.
Section 3.03 Payment Upon
Redemption.
(a) If
the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the series
to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to, but excluding, the date fixed for redemption and interest on such Securities or portions
of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such Securities
on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid and redeemed
at the applicable redemption price for such series, together with interest accrued thereon to, but excluding, the date fixed for redemption
(but if the date fixed for redemption is an Interest Payment Date, the interest installment payable on such date shall be payable to the
registered holder at the close of business on the applicable record date pursuant to Section 2.03).
(b) Upon
presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate
and the office or agency where the Security is presented shall deliver to the Securityholder thereof, at the expense of the Company, a
new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the Security so presented.
Section 3.04 Sinking Fund.
The provisions of Sections
3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified
as contemplated by Section 2.01 for Securities of such series.
The minimum amount of any
sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,”
and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
Section 3.05 Satisfaction
of Sinking Fund Payments with Securities.
The Company (i) may deliver
Outstanding Securities of a series and (ii) may apply as a credit Securities of a series that have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities
of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series, provided that
such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at
the redemption price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
Section 3.06 Redemption
of Securities for Sinking Fund.
Not less than 45 days prior
to each sinking fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company
will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer’s Certificate, deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Securities to be redeemed
upon such sinking fund payment date shall be selected in the manner specified in Section 3.02 and the Company shall cause notice of the
redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.02. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 3.03.
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4
COVENANTS
Section 4.01 Payment of
Principal, Premium and Interest.
The Company will duly and
punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and
place and in the manner provided herein and established with respect to such Securities. Payments of principal on the Securities may be
made at the time provided herein and established with respect to such Securities by U.S. dollar check drawn on and mailed to the address
of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to, a U.S.
dollar account if such Securityholder shall have furnished wire instructions to the Trustee no later than 15 days prior to the relevant
payment date. Payments of interest on the Securities may be made at the time provided herein and established with respect to such Securities
by U.S. dollar check mailed to the address of the Securityholder entitled thereto as such address shall appear in the Security Register,
or U.S. dollar wire transfer to, a U.S. dollar account if such Securityholder shall have furnished wire instructions in writing to the
Security Registrar and the Trustee no later than 15 days prior to the relevant payment date.
Section 4.02 Maintenance
of Office or Agency.
So long as any series of the
Securities remain Outstanding, the Company agrees to maintain an office or agency with respect to each such series and at such other location
or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be presented for payment,
(ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange, and (iii) notices
and demands to or upon the Company in respect of the Securities of that series and this Indenture may be given or served, such designation
to continue with respect to such office or agency until the Company shall, by written notice signed by any officer authorized to sign
an Officer’s Certificate and delivered to the Trustee, designate some other office or agency for such purposes or any of them. If
at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, notices and demands. The Company initially appoints the Corporate
Trust Office of the Trustee as its paying agent with respect to the Securities.
Section 4.03 Paying Agents.
(a) If
the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company will
cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section:
(1) that
it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the Securities
of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust for the benefit
of the Persons entitled thereto;
(2) that
it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment of the
principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3) that
it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4) that
it will perform all other duties of paying agent as set forth in this Indenture.
(b) If
the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date of the
principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities of
that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee
of such action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall have one
or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any) or interest
on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless
such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c) Notwithstanding
anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the provisions
of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture
or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company or such paying
agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums were held by the Company or
such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or such paying agent shall be
released from all further liability with respect to such money.
Section 4.04 Appointment
to Fill Vacancy in Office of Trustee.
The Company, whenever necessary
to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall
at all times be a Trustee hereunder.
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SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01
Company to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish or
cause to be furnished to the Trustee (a) within 15 days after each regular record date (as defined in Section 2.03) a list, in such form
as the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities as of such regular record
date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall not differ
in any respect from the most recent list furnished to the Trustee by the Company and (b) at such other times as the Trustee may request
in writing within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished; provided, however, that, in either case, no such list need be furnished for any
series for which the Trustee shall be the Security Registrar.
Section 5.02 Preservation
Of Information; Communications With Securityholders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the holders
of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of holders
of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The
Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights under
this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations under
Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section 5.03 Reports by
the Company.
(a) The
Company will at all times comply with Section 314(a) of the Trust Indenture Act. The Company covenants and agrees to provide (which delivery
may be via electronic mail) to the Trustee within 30 days, after the Company files the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) that the Company is required to file with the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the Trustee any correspondence
filed with the Commission or any materials for which the Company has sought and received confidential treatment by the Commission; and
provided further, that so long as such filings by the Company are available on the Commission’s Electronic Data Gathering, Analysis
and Retrieval System (EDGAR), or any successor system, such filings shall be deemed to have been filed with the Trustee for purposes hereof
without any further action required by the Company. For the avoidance of doubt, a failure by the Company to file annual reports, information
and other reports with the Commission within the time period prescribed thereof by the Commission shall not be deemed a breach of this
Section 5.03.
(b) Delivery
of reports, information and documents to the Trustee under Section 5.03 is for informational purposes only and the information and the
Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein, or determinable
from information contained therein including the Company’s compliance with any of their covenants thereunder (as to which the Trustee
is entitled to rely exclusively on an Officer’s Certificate). The Trustee is under no duty to examine any such reports, information
or documents delivered to the Trustee or filed with the Commission via EDGAR to ensure compliance with the provision of this Indenture
or to ascertain the correctness or otherwise of the information or the statements contained therein. The Trustee shall have no responsibility
or duty whatsoever to ascertain or determine whether the above referenced filings with the Commission on EDGAR (or any successor system)
has occurred.
Section 5.04 Reports by
the Trustee.
(a) If
required by Section 313(a) of the Trust Indenture Act, the Trustee, within sixty (60) days after each May 1, shall send to the Securityholders
a brief report dated as of such May 1, which complies with Section 313(a) of the Trust Indenture Act.
(b) The
Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c) A
copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company, with each
securities exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees to notify the
Trustee when any Securities become listed on any securities exchange.
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6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01 Events of
Default.
(a) Whenever
used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the following events
that has occurred and is continuing:
(1) the
Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same shall become
due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment
period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment
of interest for this purpose;
(2) the
Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when the same
shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking
or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity of such Securities
in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal or premium,
if any;
(3) the
Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture or
otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement that
has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such series) for a
period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that such notice
is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered or certified mail,
or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time Outstanding;
(4) the
Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an order
for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially all of
its property or (iv) makes a general assignment for the benefit of its creditors; or
(5) a
court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company for all or substantially all of its property or (iii) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 90 days.
(b) In
each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal of all the
Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee
if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest on all the Securities
of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and
payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of and accrued and unpaid interest on
all the Securities of that series shall automatically be immediately due and payable without any declaration or other act on the part
of the Trustee or the holders of the Securities.
(c) At
any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall have
been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder,
by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has
paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of that series
and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise than by acceleration
(with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per annum expressed in the Securities of that series to the date of such payment or deposit)
and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture with respect to such
series, other than the nonpayment of principal on (and premium, if any, on) and accrued and unpaid interest on Securities of that series
that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.06.
No such rescission and annulment
shall extend to or shall affect any subsequent default or impair any right consequent thereon.
(d) In
case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the Company and the Trustee shall
be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.
Section 6.02 Collection
of Indebtedness and Suits for Enforcement by Trustee.
(a) The
Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities of a series,
or in any payment required by any sinking or analogous fund established with respect to that series as and when the same shall have become
due and payable, and such default shall have continued for a period of 90 days, or (ii) in case it shall default in the payment of
the principal of (or premium, if any, on) any of the Securities of a series when the same shall have become due and payable, whether upon
maturity of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall have been become
due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case may be, with interest upon
the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable under applicable law) upon
overdue installments of interest at the rate per annum expressed in the Securities of that series; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee under Section 7.06.
(b) If
the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid,
and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against
the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner
provided by law or equity out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c) In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings
affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings and take any action
therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim
and other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities
of such series allowed for the entire amount due and payable by the Company under the Indenture at the date of institution of such proceedings
and for any additional amount that may become due and payable by the Company after such date, and to collect and receive any moneys or
other property payable or deliverable on any such claim, and to distribute the same after the deduction of the amount payable to the Trustee
under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the holders
of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to such Securityholders, to pay to the Trustee any amount due it under Section 7.06.
(d) All
rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities of that
series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of
an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06,
be for the ratable benefit of the holders of the Securities of such series.
In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or
in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or in aid of
the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Nothing contained herein shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of that series or the rights of any Securityholder thereof or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section 6.03 Application
of Moneys Collected.
Any moneys collected by the
Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium, if any) or interest,
upon presentation of the Securities of that series, and notation thereon of the payment, if only partially paid, and upon surrender thereof
if fully paid:
FIRST: To the payment of costs
and expenses of collection and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of
the amounts then due and unpaid upon Securities of such series for principal (and premium, if any) and interest, in respect of which or
for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of the
remainder, if any, to the Company or any other Person lawfully entitled thereto.
Section 6.04 Limitation
on Suits.
No holder of any Security
of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i) such Securityholder previously shall have given to the Trustee written notice of an Event of Default and
of the continuance thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided; (ii)
the holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii) such Securityholder
or Securityholders shall have offered to the Trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred
in compliance with such request; (iv) the Trustee for 90 days after its receipt of such notice, request and offer of indemnity, shall
have failed to institute any such action, suit or proceeding and (v) during such 90 day period, the holders of a majority in principal
amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained
herein to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive payment of the principal
of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed in such Security
(or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment on or after such
respective dates or redemption date, shall not be impaired or affected without the consent of such holder and by accepting a Security
hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security of such series with every other
such taker and holder and the Trustee, that no one or more holders of Securities of such series shall have any right in any manner whatsoever
by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the holders of any other of
such Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all holders of Securities of such series.
For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
Section 6.05 Rights and
Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except
as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee or the holders
of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained
in this Indenture or otherwise established with respect to such Securities.
(b) No
delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or
an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article or by law to the
Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
Section 6.06 Control by
Securityholders.
The holders of a majority
in aggregate principal amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04, shall
have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to such series; provided, however, that such direction shall not be in conflict
with any rule of law or with this Indenture or subject the Trustee in its sole discretion to personal liability. Subject to the provisions
of Section 7.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible
Officer or officers of the Trustee, determine that the proceeding so directed, subject to the Trustee’s duties under the Trust Indenture
Act, would involve the Trustee in personal liability or might be unduly prejudicial to the Securityholders not involved in the proceeding.
The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding affected thereby, determined
in accordance with Section 8.04, may on behalf of the holders of all of the Securities of such series waive any past default in the performance
of any of the covenants contained herein or established pursuant to Section 2.01 with respect to such series and its consequences, except
a default in the payment of the principal of, or premium, if any, or interest on, any of the Securities of that series as and when the
same shall become due by the terms of such Securities otherwise than by acceleration (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal and any premium has been deposited with the Trustee (in accordance with Section
6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes of this Indenture and the Company,
the Trustee and the holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 6.07 Undertaking
to Pay Costs.
All parties to this Indenture
agree, and each holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder,
or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or to any
suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security
of such series, on or after the respective due dates expressed in such Security or established pursuant to this Indenture.
article
7
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties
and Responsibilities of Trustee.
(a) The
Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all Events
of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect to the Securities
of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants shall be read
into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred (that has
not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his or her own affairs.
(b) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(i) prior
to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all such Events
of Default with respect to that series that may have occurred:
(A) the
duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance of such
duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(B) in
the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(ii) the
Trustee shall not be liable to any Securityholder or to any other Person for any error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction
of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding relating to the
time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee under this Indenture with respect to the Securities of that series;
(iv) none
of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable ground for
believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate
indemnity against such risk is not reasonably assured to it;
(v) The
Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder;
(vi) The
permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee; and
(vii) No
Trustee shall have any duty or responsibility for any act or omission of any other Trustee appointed with respect to a series of Securities
hereunder.
Section 7.02 Certain Rights
of Trustee.
Except as otherwise provided
in Section 7.01:
(a) The
Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) Any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument
signed in the name of the Company by any authorized Officer of the Company (unless other evidence in respect thereof is specifically prescribed
herein);
(c) The
Trustee may consult with counsel and the opinion or written advice of such counsel or, if requested, any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance
thereon;
(d) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction
of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee
security or indemnity reasonably acceptable to the Trustee against the costs, expenses and liabilities that may be incurred therein or
thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default with
respect to a series of the Securities (that has not been cured or waived), to exercise with respect to Securities of that series such
of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their exercise, as a prudent
man would exercise or use under the circumstances in the conduct of his or her own affairs;
(e) The
Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
(f) The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents or inquire as to the performance
by the Company of one of its covenants under this Indenture, unless requested in writing so to do by the holders of not less than a majority
in principal amount of the Outstanding Securities of the particular series affected thereby (determined as provided in Section 8.04);
provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may require security or indemnity reasonably acceptable to the Trustee against such
costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the
Company or, if paid by the Trustee, shall be repaid by the Company upon demand;
(g) The Trustee
may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care
by it hereunder;
(h) In
no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out
of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions
of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts
which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
(i) In
no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action; and
(j) The
Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission
or other similar unsecured electronic methods; provided, however, that such instructions or directions shall be signed by an authorized
representative of the party providing such instructions or directions. If the party elects to give the Trustee e-mail or facsimile instructions
(or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s
understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising
directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions
conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks
arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the
risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties. The Trustee may request
that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at
such time to furnish the Trustee with Officer’s Certificates, Company Orders and any other matters or directions pursuant to this
Indenture;
(k) The
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and under the Securities, and each agent,
custodian or other person employed to act under this Indenture; and
(l) The
Trustee shall not be deemed to have knowledge of any Default or Event of Default (other than an Event of Default constituting the failure
to pay the interest on, or the principal of, the Securities if the Trustee also serves as the paying agent for such Securities) until
the Trustee shall have received written notification in the manner set forth in this Indenture or a Responsible Officer of the Trustee
shall have obtained actual knowledge.
Section 7.03 Trustee Not
Responsible for Recitals or Issuance or Securities.
(a) The
recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee shall not be responsible for any statement in any registration statement, prospectus, or
any other document in connection with the sale of Securities. The Trustee shall not be responsible for any rating on the Securities or
any action or omission of any rating agency.
(b) The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c) The
Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such Securities,
or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture or established
pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the Trustee.
Section 7.04 May Hold
Securities.
The Trustee or any paying
agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights
it would have if it were not Trustee, paying agent or Security Registrar.
Section 7.05 Moneys Held
in Trust.
Subject to the provisions
of Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes
for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06 Compensation
and Reimbursement.
(a)
The Company shall pay to the Trustee for each of its capacities hereunder from time to time compensation for its services as the Company
and the Trustee shall from time to time agree upon in writing. The Trustee’s compensation shall not be limited by any law on compensation
of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred
by it. Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.
(b) The
Company shall indemnify each of the Trustee in each of its capacities hereunder against any loss, liability or expense (including the
cost of defending itself and including the reasonable compensation and expenses of the Trustee’s agents and counsel) incurred by
it except as set forth in Section 7.06(c) in the exercise or performance of its powers, rights or duties under this Indenture as Trustee
or Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably
withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.
(c) The
Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director,
employee, shareholder or agent of the Trustee through negligence or bad faith.
(d) To
ensure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities on all funds or
property held or collected by the Trustee, except that held in trust to pay principal of or interest on particular Securities. When the
Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(4) or (5), the expenses (including
the reasonable fees and expenses of its counsel) and the compensation for services in connection therewith are to constitute expenses
of administration under any bankruptcy law. The provisions of this Section 7.06 shall survive the termination of this Indenture and the
resignation or removal of the Trustee.
Section 7.07 Reliance
on Officer’s Certificate.
Except as otherwise provided
in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary or
desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee and such certificate,
in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered
or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.08 Disqualification;
Conflicting Interests.
If the Trustee has or shall
acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company
shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate
Trustee Required; Eligibility.
There shall at all times be
a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and doing business under
the laws of the United States of America or any state or territory thereof or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination by federal, state, territorial,
or District of Columbia authority.
If such corporation or other
Person publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such corporation or other Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor may
any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in
the manner and with the effect specified in Section 7.10.
Section 7.10 Resignation
and Removal; Appointment of Successor.
(a) The
Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series by giving written
notice thereof to the Company and the Securityholders of such series. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within 30 days after the sending of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee with respect to Securities
of such series, or any Securityholder of that series who has been a bona fide holder of a Security or Securities for at least six months
may on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court
may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In
case at any time any one of the following shall occur:
(i) the
Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months; or
(ii) the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request therefor
by the Company or by any such Securityholder; or
(iii) the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the
Company may remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument, in duplicate, executed
by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor
trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least six months may, on behalf of that
holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment
of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series with
the consent of the Company.
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant to any
of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in Section
7.11.
(e) Any
successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all of such
series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance
of Appointment By Successor.
(a) In
case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the
successor trustee, such retiring Trustee shall, upon payment of any amounts due to it pursuant to the provisions of Section 7.06, execute
and deliver an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor trustee all property and money held by such retiring Trustee hereunder.
(b) In
case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates,
(ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee shall be trustee
of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder; and upon the execution and delivery
of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee shall with respect to the Securities of that or those series to which the appointment of such successor trustee
relates have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations vested
in the Trustee under this Indenture, and each such successor trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor trustee relates; but, on request of the Company or any successor trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property and
money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such
successor trustee relates.
(c) Upon
request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming
to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No
successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified and eligible
under this Article.
(e) Upon
acceptance of appointment by a successor trustee as provided in this Section, the Company shall send notice of the succession of such
trustee hereunder to the Securityholders. If the Company fails to send such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be sent at the expense of the Company.
Section 7.12 Merger, Conversion,
Consolidation or Succession to Business.
Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, including the administration of the trust created by this Indenture, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09,
without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential
Collection of Claims Against the Company.
The Trustee shall comply with
Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act.
A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice of
Default.
If any Event of Default occurs
and is continuing and if such Event of Default is known to a Responsible Officer of the Trustee, the Trustee shall send to each Securityholder
in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Event of Default within the earlier
of 90 days after it occurs and 30 days after it is known to a Responsible Officer of the Trustee or written notice of it is received by
the Trustee, unless such Event of Default has been cured; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest on any Security, the Trustee shall be protected in withholding such notice if and
so long as the Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the
Securityholders.
article
8
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence
of Action by Securityholders.
Whenever in this Indenture
it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular
series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action the holders of such majority or specified percentage of that series
have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders of Securities
of that series in person or by agent or proxy appointed in writing.
If the Company shall solicit
from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, as evidenced by an Officer’s Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company
shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver
or other action may be given before or after the record date, but only the Securityholders of record at the close of business on the record
date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of Outstanding
Securities of that series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver
or other action, and for that purpose the Outstanding Securities of that series shall be computed as of the record date; provided, however,
that no such authorization, agreement or consent by such Securityholders on the record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than six months after the record date.
Section 8.02 Proof of
Execution by Securityholders.
Subject to the provisions
of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his or her
agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a) The
fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The
ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
The Trustee may require such
additional proof of any matter referred to in this Section as it shall deem necessary.
Section 8.03 Who May be
Deemed Owners.
Prior to the due presentment
for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat
the Person in whose name such Security shall be registered upon the books of the Security Registrar as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than
the Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to Section
2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
Section 8.04 Certain Securities
Owned by Company Disregarded.
In determining whether the
holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any direction, consent or waiver
under this Indenture, the Securities of that series that are owned by the Company or any other obligor on the Securities of that series
or by any Person directly or indirectly controlling or controlled by or under common control with the Company or any other obligor on
the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Securities
of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so owned that have been pledged in
good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall establish to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the Company or any such other obligor. In case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05 Actions Binding
on Future Securityholders.
At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage
in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with such action, any
holder of a Security of that series that is shown by the evidence to be included in the Securities the holders of which have consented
to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall be conclusive and binding
upon such holder and upon all future holders and owners of such Security, and of any Security issued in exchange therefor, on registration
of transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made upon such Security. Any
action taken by the holders of the majority or percentage in aggregate principal amount of the Securities of a particular series specified
in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the holders of all the
Securities of that series.
article
9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental
Indentures Without the Consent of Securityholders.
In addition to any supplemental
indenture otherwise authorized by this Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent
of the Securityholders, for one or more of the following purposes:
(a) to
cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b) to
comply with Article Ten;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to
add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of all or any series
of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all series of Securities,
stating that such covenants, restrictions, conditions or provisions are expressly being included solely for the benefit of such series),
to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions
or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e) to
add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication,
and delivery of Securities, as herein set forth;
(f) to
make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g) to
provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section 2.01,
to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities,
or to add to the rights of the holders of any series of Securities;
(h) to
evidence and provide for the acceptance of appointment hereunder by a successor trustee; or
(i) to
comply with any requirements of the Commission or any successor in connection with the qualification of this Indenture under the Trust
Indenture Act.
The Trustee is hereby authorized
to join with the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture
authorized by the provisions of this Section may be executed by the Company and the Trustee without the consent of the holders of any
of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02 Supplemental
Indentures With Consent of Securityholders.
With the consent (evidenced
as provided in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each series
affected by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and
the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered by Section 9.01 the
rights of the holders of the Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend the fixed maturity of any Securities
of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce
any premium payable upon the redemption thereof or (b) reduce the aforesaid percentage of Securities, the holders of which are required
to consent to any such supplemental indenture.
It shall not be necessary
for the consent of the Securityholders of any series affected thereby under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect of
Supplemental Indentures.
Upon the execution of any
supplemental indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such series,
be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 9.04 Securities
Affected by Supplemental Indentures.
Securities of any series affected
by a supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements of
any securities exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors, to any modification
of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered
in exchange for the Securities of that series then Outstanding.
Section 9.05 Execution
of Supplemental Indentures.
Upon the request of the Company,
accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such supplemental
indenture. The Trustee, subject to the provisions of Section 7.01, shall receive an Officer’s Certificate or an Opinion of Counsel
as conclusive evidence that any supplemental indenture executed pursuant to this Article is authorized or permitted by the terms of this
Article and that all conditions precedent to the execution of the supplemental indenture have been complied with; provided, however, that
such Officer’s Certificate or Opinion of Counsel need not be provided in connection with the execution of a supplemental indenture
that establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly after the execution
by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Company shall (or shall
direct the Trustee to) send a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders
of all series affected thereby .as their names and addresses appear upon the Security Register. Any failure of the Company to send, or
cause the sending of, such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental
indenture.
article
10
SUCCESSOR ENTITY
Section 10.01 Company
May Consolidate, Etc.
Nothing contained in this
Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated with the Company)
or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, or shall prevent
any sale, conveyance, transfer or other disposition of the property of the Company or its successor or successors as an entirety, or substantially
as an entirety, to any other Person (whether or not affiliated with the Company or its successor or successors); provided, however, the
Company hereby covenants and agrees that, upon any such consolidation or merger (in each case, if the Company is not the survivor of such
transaction) or any such sale, conveyance, transfer or other disposition (other than a sale, conveyance, transfer or other disposition
to a Subsidiary of the Company), the due and punctual payment of the principal of (premium, if any) and interest on all of the Securities
of all series in accordance with the terms of each series, according to their tenor, and the due and punctual performance and observance
of all the covenants and conditions of this Indenture with respect to each series or established with respect to such series pursuant
to Section 2.01 to be kept or performed by the Company shall be expressly assumed, by supplemental indenture (which shall conform to the
provisions of the Trust Indenture Act, as then in effect) reasonably satisfactory in form to the Trustee executed and delivered to the
Trustee by the entity formed by such consolidation, or into which the Company shall have been merged, or by the entity which shall have
acquired such property.
Section 10.02 Successor
Entity Substituted.
(a) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor entity
by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set forth
under Section 10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to and be substituted for
the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be relieved
of all obligations and covenants under this Indenture and the Securities.
(b) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form (but not
in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c) Nothing
contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person into the Company
where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of all or any part
of the property of any other Person (whether or not affiliated with the Company).
article
11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction
and Discharge of Indenture.
If at any time: (a) the Company
shall have delivered to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee
for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or paid as
provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have theretofore been deposited in trust or
segregated and held in trust by the Company and thereupon repaid to the Company or discharged from such trust, as provided in Section
11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation shall have become
due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit or cause to be deposited
with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination thereof, sufficient in the opinion
of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee,
to pay at maturity or upon redemption all Securities of that series not theretofore delivered to the Trustee for cancellation, including
principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed for redemption, as the case may
be, and if the Company shall also pay or cause to be paid all other sums payable hereunder with respect to such series by the Company
then this Indenture shall thereupon cease to be of further effect with respect to such series except for the provisions of Sections 2.03,
2.05, 2.07, 4.01, 4.02, 4.03, 7.10, 11.05 and 13.04, that shall survive until the date of maturity or redemption date, as the case may
be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter, and the Trustee, on demand of the Company and at the
cost and expense of the Company shall execute proper instruments acknowledging satisfaction of and discharging this Indenture with respect
to such series.
Section 11.02 Discharge
of Obligations.
If at any time all such Securities
of a particular series not heretofore delivered to the Trustee for cancellation or that have not become due and payable as described in
Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount of Governmental
Obligations sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore delivered to the Trustee
for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the Company
with respect to such series, then after the date such moneys or Governmental Obligations, as the case may be, are deposited with the Trustee
the obligations of the Company under this Indenture with respect to such series shall cease to be of further effect except for the provisions
of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10, 11.05 and 13.04 hereof that shall survive until such Securities shall mature
and be paid.
Thereafter, Sections 7.06
and 11.05 shall survive.
Section 11.03 Deposited
Moneys to be Held in Trust.
All moneys or Governmental
Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as
due, either directly or through any paying agent (including the Company acting as its own paying agent), to the holders of the particular
series of Securities for the payment or redemption of which such moneys or Governmental Obligations have been deposited with the Trustee.
Section 11.04 Payment
of Moneys Held by Paying Agents.
In connection with the satisfaction
and discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability
with respect to such moneys or Governmental Obligations.
Section 11.05 Repayment
to Company.
Any moneys or Governmental
Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or premium,
if any, or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities
for at least two years after the date upon which the principal of (and premium, if any) or interest on such Securities shall have respectively
become due and payable, or such other shorter period set forth in applicable escheat or abandoned or unclaimed property law, shall be
repaid to the Company on May 31 of each year or upon the Company’s request or (if then held by the Company) shall be discharged
from such trust; and thereupon the paying agent and the Trustee shall be released from all further liability with respect to such moneys
or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment shall thereafter, as a general creditor,
look only to the Company for the payment thereof.
article
12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 No Recourse.
No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood
that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason
of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom; and that any
and all such personal liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any
and all such rights and claims against, every such incorporator, stockholder, officer or director as such, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Securities.
article
13
MISCELLANEOUS PROVISIONS
Section 13.01 Effect on
Successors and Assigns.
All the covenants, stipulations,
promises and agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so expressed
or not.
Section 13.02 Actions
by Successor.
Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and
may be done and performed with like force and effect by the corresponding board, committee or officer of any corporation that shall at
the time be the lawful successor of the Company.
Section 13.03 Surrender
of Company Powers.
The Company by instrument
in writing executed by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the
Company, and thereupon such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise expressly
provided herein, any notice, request or demand that by any provision of this Indenture is required or permitted to be given, made or
served by the Trustee, the Security Registrar, any paying or other agent under this Indenture or by the holders of Securities or by any
other Person pursuant to this Indenture to or on the Company may be given or served by being deposited in first class mail, postage prepaid,
addressed (until another address is filed in writing by the Company with the Trustee), as follows: .
Any notice, election, request or demand by the Company or any Securityholder or by any other Person pursuant to this Indenture to or
upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at the Corporate
Trust Office of the Trustee.
Section 13.05 Governing
Law; Jury Trial Waiver.
This Indenture and each Security
shall be governed by, and construed in accordance with, the internal laws of the State of New York, except to the extent that the Trust
Indenture Act is applicable.
EACH PARTY HERETO, AND EACH
HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.
Section 13.06 Treatment
of Securities as Debt.
It is intended that the Securities
will be treated as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted
to further this intention.
Section 13.07 Certificates
and Opinions as to Conditions Precedent.
(a) Upon
any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent provided for in this Indenture (other
than the certificate to be delivered pursuant to Section 13.12) relating to the proposed action have been complied with and, if requested,
an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b) Each
certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant
in this Indenture (other than the certificate to be delivered pursuant to Section 13.12 of this Indenture or Section 314(a)(1) of the
Trust Indenture Act) shall include (i) a statement that the Person making such certificate or opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such examination or investigation
as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied
with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 13.08 Payments
on Business Days.
Except as provided pursuant
to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures
supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of redemption
of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue for
the period after such nominal date.
Section 13.09 Conflict
with Trust Indenture Act.
If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Section 318(c) of the Trust Indenture Act, such
imposed duties shall control.
Section 13.10 Counterparts.
This Indenture may be executed
in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same
instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective
execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes.
Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 13.11 Separability.
In case any one or more of
the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities,
but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained
herein or therein.
Section 13.12 Compliance
Certificates.
The Company shall deliver
to the Trustee, within 120 days after the end of each fiscal year during which any Securities of any series were outstanding, an officer’s
certificate stating whether or not the signers know of any Event of Default that occurred during such fiscal year. Such certificate shall
contain a certification from the principal executive officer, principal financial officer or principal accounting officer of the Company
that a review has been conducted of the activities of the Company and the Company’s performance under this Indenture and that the
Company has complied with all conditions and covenants under this Indenture. For purposes of this Section 13.12, such compliance shall
be determined without regard to any period of grace or requirement of notice provided under this Indenture. If the officer of the Company
signing such certificate has knowledge of such an Event of Default, the certificate shall describe any such Event of Default and its status.
Section 13.13 U.S.A Patriot
Act.
The parties hereto acknowledge
that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight
the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal
entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide
the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
Section 13.14 Force Majeure.
In no event shall the Trustee,
the Security Registrar, any paying agent or any other agent under this Indenture be responsible or liable for any failure or delay in
the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including
without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes
or acts of God, and interruptions, loss or malfunctions or utilities, communications or computer (software and hardware) services; it
being understood that the Trustee, the Security Registrar, any paying agent or any other agent under this Indenture shall use reasonable
efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 13.15 Table of
Contents; Headings.
The table of contents and
headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered
a part hereof, and will not modify or restrict any of the terms or provisions hereof.
In
Witness Whereof, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
|
Gamida Cell Ltd. |
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
|
|
|
[Trustee], as Trustee |
|
|
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By: |
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Name: |
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Title: |
|
CROSS-REFERENCE TABLE (1)
Section
of Trust Indenture Act of 1939, as Amended |
|
Section
of Indenture |
310(a) |
|
7.09 |
310(b) |
|
7.08 |
|
|
7.10 |
310(c) |
|
Inapplicable |
311(a) |
|
7.13 |
311(b) |
|
7.13 |
311(c) |
|
Inapplicable |
312(a) |
|
5.01 |
|
|
5.02(a) |
312(b) |
|
5.02(c) |
312(c) |
|
5.02(c) |
313(a) |
|
5.04(a) |
313(b) |
|
5.04(b) |
313(c) |
|
5.04(a) |
|
|
5.04(b) |
313(d) |
|
5.04(c) |
314(a) |
|
5.03 |
|
|
13.12 |
314(b) |
|
Inapplicable |
314(c) |
|
13.07(a) |
314(d) |
|
Inapplicable |
314(e) |
|
13.07(b) |
314(f) |
|
Inapplicable |
315(a) |
|
7.01(a) |
|
|
7.01(b) |
315(b) |
|
7.14 |
315(c) |
|
7.01 |
315(d) |
|
7.01(b) |
315(e) |
|
6.07 |
316(a) |
|
6.06 |
|
|
8.04 |
316(b) |
|
6.04 |
316(c) |
|
8.01 |
317(a) |
|
6.02 |
317(b) |
|
4.03 |
318(a) |
|
13.09 |
(1) | This Cross-Reference Table does not constitute part of the
Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
47
Exhibit 4.4
Gamida
Cell Ltd.
and
_____________, As Warrant Agent
Form
of Ordinary Share
Warrant Agreement
Dated As Of __________
Gamida Cell Ltd. Form of Ordinary
Share Warrant Agreement
This
Ordinary share Warrant Agreement (this “Agreement”), dated as of [●], between Gamida
Cell Ltd., a company organized under the laws of the State of Israel (the “Company”), and [●],
a [corporation] [national banking association] organized and existing under the laws of [●] and having a corporate trust office
in [●], as warrant agent (the “Warrant Agent”).
Whereas,
the Company proposes to sell [If Warrants are sold with other securities —[title of such other securities
being offered] (the “Other Securities”) with] warrant certificates evidencing one or more warrants (the
“Warrants” or, individually, a “Warrant”) representing the right to purchase ordinary
shares of the Company, NIS 0.01 par value per share (the “Warrant Securities”), such warrant certificates and
other warrant certificates issued pursuant to this Agreement being herein called the “Warrant Certificates”;
and
Whereas,
the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection
with the issuance, registration, transfer, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement wishes
to set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which they may be
issued, registered, transferred, exchanged, exercised and replaced.
Now
Therefore, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows:
Article
1
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
1.1 Issuance
of Warrants. [If Warrants alone —Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Other Securities and Warrants —Warrant Certificates will be issued in connection with the issuance of the Other
Securities but shall be separately transferable and each Warrant Certificate shall evidence one or more Warrants.] Each Warrant evidenced
thereby shall represent the right, subject to the provisions contained herein and therein, to purchase one Warrant Security. [If
Other Securities and Warrants —Warrant Certificates will be issued with the Other Securities and each Warrant Certificate
will evidence [●] Warrants for each [$[●] principal amount] [[●] shares] of Other Securities issued.]
1.2 Execution
and Delivery of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be in registered form substantially in the
form set forth in Exhibit A hereto, shall be dated the date of its countersignature by the Warrant Agent and may have such letters,
numbers, or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as
the officers of the Company executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which the Warrants may be listed, or to conform to usage. The Warrant
Certificates shall be signed on behalf of the Company by any of its present or future chief executive officers, presidents, senior vice
presidents, vice presidents, chief financial officers, chief legal officers, treasurers, assistant treasurers, controllers, assistant
controllers, secretaries or assistant secretaries under its corporate seal reproduced thereon. Such signatures may be manual or facsimile
signatures of such authorized officers and may be imprinted or otherwise reproduced on the Warrant Certificates. The seal of the Company
may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall
be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been countersigned
by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company
shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued hereunder.
In case any officer of the
Company who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall cease to be such officer
before the Warrant Certificates so signed shall have been countersigned and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the person who signed such Warrant Certificates ceased to be such officer of the
Company; and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual date of the execution of
such Warrant Certificate, shall be the proper officers of the Company, although at the date of the execution of this Agreement any such
person was not such officer.
The term “holder”
or “holder of a Warrant Certificate” as used herein shall mean any person in whose name at the time any Warrant
Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose.
1.3 Issuance
of Warrant Certificates. Warrant Certificates evidencing the right to purchase Warrant Securities may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Agreement or from time to time thereafter. The Warrant Agent shall, upon receipt
of Warrant Certificates duly executed on behalf of the Company, countersign such Warrant Certificates and shall deliver such Warrant Certificates
to or upon the order of the Company.
Article
2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
2.1 Warrant
Price. During the period specified in Section 2.2, each Warrant shall, subject to the terms of this Agreement and the applicable Warrant
Certificate, entitle the holder thereof to purchase the number of Warrant Securities specified in the applicable Warrant Certificate at
an exercise price of $[●] per Warrant Security, subject to adjustment upon the occurrence of certain events, as hereinafter provided.
Such purchase price per Warrant Security is referred to in this Agreement as the “Warrant Price.”
2.2 Duration
of Warrants. Each Warrant may be exercised in whole or in part at any time, as specified herein, on or after [the date thereof] [●]
and at or before [●] p.m., [City] time, on [●] or such later date as the Company may designate by notice to the Warrant Agent
and the holders of Warrant Certificates mailed to their addresses as set forth in the record books of the Warrant Agent (the “Expiration
Date”). Each Warrant not exercised at or before [●] p.m., [City] time, on the Expiration Date shall become void, and
all rights of the holder of the Warrant Certificate evidencing such Warrant under this Agreement shall cease.
2.3 Exercise
of Warrants.
(a) During
the period specified in Section 2.2, the Warrants may be exercised to purchase a whole number of Warrant Securities in registered form
by providing certain information as set forth on the reverse side of the Warrant Certificate and by paying in full, in lawful money of
the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer
in immediately available funds] the Warrant Price for each Warrant Security with respect to which a Warrant is being exercised to the
Warrant Agent at its corporate trust office, provided that such exercise is subject to receipt within five business days of such payment
by the Warrant Agent of the Warrant Certificate with the form of election to purchase Warrant Securities set forth on the reverse side
of the Warrant Certificate properly completed and duly executed. The date on which payment in full of the Warrant Price is received by
the Warrant Agent shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to be the date on which the Warrant is
exercised; provided, however, that if, at the date of receipt of such Warrant Certificates and payment in full of the Warrant Price, the
transfer books for the Warrant Securities purchasable upon the exercise of such Warrants shall be closed, no such receipt of such Warrant
Certificates and no such payment of such Warrant Price shall be effective to constitute the person so designated to be named as the holder
of record of such Warrant Securities on such date, but shall be effective to constitute such person as the holder of record of such Warrant
Securities for all purposes at the opening of business on the next succeeding day on which the transfer books for the Warrant Securities
purchasable upon the exercise of such Warrants shall be opened, and the certificates for the Warrant Securities in respect of which such
Warrants are then exercised shall be issuable as of the date on such next succeeding day on which the transfer books shall next be opened,
and until such date the Company shall be under no duty to deliver any certificate for such Warrant Securities. The Warrant Agent shall
deposit all funds received by it in payment of the Warrant Price in an account of the Company maintained with it and shall advise the
Company by telephone at the end of each day on which a payment for the exercise of Warrants is received of the amount so deposited to
its account. The Warrant Agent shall promptly confirm such telephone advice to the Company in writing.
(b) The
Warrant Agent shall, from time to time, as promptly as practicable, advise the Company of (i) the number of Warrant Securities with respect
to which Warrants were exercised, (ii) the instructions of each holder of the Warrant Certificates evidencing such Warrants with respect
to delivery of the Warrant Securities to which such holder is entitled upon such exercise, (iii) delivery of Warrant Certificates evidencing
the balance, if any, of the Warrants for the remaining Warrant Securities after such exercise, and (iv) such other information as the
Company shall reasonably require.
(c) As
soon as practicable after the exercise of any Warrant, the Company shall issue to or upon the order of the holder of the Warrant Certificate
evidencing such Warrant the Warrant Securities to which such holder is entitled, in fully registered form, registered in such name or
names as may be directed by such holder. If fewer than all of the Warrants evidenced by such Warrant Certificate are exercised, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually countersign and deliver, a new Warrant Certificate evidencing
Warrants for the number of Warrant Securities remaining unexercised.
(d) The
Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities, and in the event that any such transfer is involved, the Company shall not be required
to issue or deliver any Warrant Security until such tax or other charge shall have been paid or it has been established to the Company’s
satisfaction that no such tax or other charge is due.
(e) Prior
to the issuance of any Warrants there shall have been reserved, and the Company shall at all times through the Expiration Date keep reserved,
out of its authorized but unissued Warrant Securities, a number of shares sufficient to provide for the exercise of the Warrants.
Article
3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF
WARRANT CERTIFICATES
3.1 No
Rights as Warrant Securityholder Conferred by Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby
shall entitle the holder thereof to any of the rights of a holder of Warrant Securities, including, without limitation, the right to receive
the payment of dividends or distributions, if any, on the Warrant Securities or to exercise any voting rights, except to the extent expressly
set forth in this Agreement or the applicable Warrant Certificate.
3.2 Lost,
Stolen, Mutilated or Destroyed Warrant Certificates. Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it and
the Company of the ownership of and the loss, theft, destruction or mutilation of any Warrant Certificate and/or indemnity reasonably
satisfactory to the Warrant Agent and the Company and, in the case of mutilation, upon surrender of the mutilated Warrant Certificate
to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such Warrant Certificate
has been acquired by a bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign
and deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate of
the same tenor and evidencing Warrants for a like number of Warrant Securities. Upon the issuance of any new Warrant Certificate under
this Section 3.2, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section 3.2 in lieu of any lost, stolen or destroyed Warrant Certificate shall
represent an additional contractual obligation of the Company, whether or not the lost, stolen or destroyed Warrant Certificate shall
be at any time enforceable by anyone, and shall be entitled to the benefits of this Agreement equally and proportionately with any and
all other Warrant Certificates duly executed and delivered hereunder. The provisions of this Section 3.2 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
3.3 Holder
of Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any holder of a Warrant Certificate,
without the consent of the Warrant Agent, the holder of any Warrant Securities or the holder of any other Warrant Certificate, may, in
such holder’s own behalf and for such holder’s own benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company suitable to enforce, or otherwise in respect of, such holder’s right to exercise the Warrants evidenced by such
holder’s Warrant Certificate in the manner provided in such holder’s Warrant Certificate and in this Agreement.
3.4 Adjustments.
(a) In
case the Company shall at any time subdivide its outstanding ordinary shares into a greater number of shares, the Warrant Price in effect
immediately prior to such subdivision shall be proportionately reduced and the number of Warrant Securities purchasable under the Warrants
shall be proportionately increased. Conversely, in case the outstanding ordinary shares of the Company shall be combined into a smaller
number of shares, the Warrant Price in effect immediately prior to such combination shall be proportionately increased and the number
of Warrant Securities purchasable under the Warrants shall be proportionately decreased.
(b) If
at any time or from time to time the holders of ordinary shares (or any shares of stock or other securities at the time receivable upon
the exercise of the Warrants) shall have received or become entitled to receive, without payment therefor,
(i) ordinary
shares or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for ordinary
shares, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution;
(ii) any
cash paid or payable otherwise than as a cash dividend paid or payable out of the Company’s current or retained earnings;
(iii) any
evidence of the Company’s indebtedness or rights to subscribe for or purchase the Company’s indebtedness; or
(iv) ordinary
shares or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination
of shares or similar corporate rearrangement (other than shares of ordinary shares issued as a stock split or adjustments in respect of
which shall be covered by the terms of Section 3.4(a) above), then and in each such case, the holder of each Warrant shall, upon the exercise
of the Warrant, be entitled to receive, in addition to the number of Warrant Securities receivable thereupon, and without payment of any
additional consideration therefore, the amount of stock and other securities and property (including cash and indebtedness or rights to
subscribe for or purchase indebtedness) which such holder would hold on the date of such exercise had such holder been the holder of record
of such Warrant Securities as of the date on which holders of ordinary shares received or became entitled to receive such shares or all
other additional stock and other securities and property.
(c) In
case of (i) any reclassification, capital reorganization, or change in the ordinary shares of the Company (other than as a result of a
subdivision, combination, or dividend provided for in Section 3.4(a) or Section 3.4(b) above), (ii) share exchange, merger or similar
transaction of the Company with or into another person or entity (other than a share exchange, merger or similar transaction in which
the Company is the acquiring or surviving corporation and which does not result in any change in the ordinary shares other than the issuance
of additional ordinary shares) or (iii) the sale, exchange, lease, transfer or other disposition of all or substantially all of the properties
and assets of the Company as an entirety (in any such case, a “Reorganization Event”), then, as a condition
of such Reorganization Event, lawful provisions shall be made, and duly executed documents evidencing the same from the Company or its
successor shall be delivered to the holders of the Warrants, so that the holders of the Warrants shall have the right at any time prior
to the expiration of the Warrants to purchase, at a total price equal to that payable upon the exercise of the Warrants, the kind and
amount of shares of stock and other securities and property receivable in connection with such Reorganization Event by a holder of the
same number of Warrant Securities as were purchasable by the holders of the Warrants immediately prior to such Reorganization Event. In
any such case appropriate provisions shall be made with respect to the rights and interests of the holders of the Warrants so that the
provisions hereof shall thereafter be applicable with respect to any shares of stock or other securities and property deliverable upon
exercise the Warrants, and appropriate adjustments shall be made to the Warrant Price payable hereunder provided the aggregate purchase
price shall remain the same. In the case of any transaction described in clauses (ii) and (iii) above, the Company shall thereupon be
relieved of any further obligation hereunder or under the Warrants, and the Company as the predecessor corporation may thereupon or at
any time thereafter be dissolved, wound up or liquidated. Such successor or assuming entity thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the Warrants issuable hereunder which heretofore shall not have
been signed by the Company, and may execute and deliver securities in its own name, in fulfillment of its obligations to deliver Warrant
Securities upon exercise of the Warrants. All the Warrants so issued shall in all respects have the same legal rank and benefit under
this Agreement as the Warrants theretofore or thereafter issued in accordance with the terms of this Agreement as though all of such Warrants
had been issued at the date of the execution hereof. In any case of any such Reorganization Event, such changes in phraseology and form
(but not in substance) may be made in the Warrants thereafter to be issued as may be appropriate. The Warrant Agent may receive a written
opinion of legal counsel as conclusive evidence that any such Reorganization Event complies with the provisions of this Section 3.4.
(d) The
Company may, at its option, at any time until the Expiration Date, reduce the then current Warrant Price to any amount deemed appropriate
by the Board of Directors of the Company for any period not exceeding twenty consecutive days (as evidenced in a resolution adopted by
such Board of Directors), but only upon giving the notices required by Section 3.5 at least ten days prior to taking such action.
(e) Except
as herein otherwise expressly provided, no adjustment in the Warrant Price shall be made by reason of the issuance of ordinary shares,
or securities convertible into or exchangeable for ordinary shares, or securities carrying the right to purchase any of the foregoing
or for any other reason whatsoever.
(f) No
fractional Warrant Securities shall be issued upon the exercise of Warrants. If more than one Warrant shall be exercised at one time by
the same holder, the number of full Warrant Securities which shall be issuable upon such exercise shall be computed on the basis of the
aggregate number of Warrant Securities purchased pursuant to the Warrants so exercised. Instead of any fractional Warrant Security which
would otherwise be issuable upon exercise of any Warrant, the Company shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the last reported sale price (or bid price if there were no sales) per Warrant Security, in either case
as reported on the principal registered national securities exchange on which the Warrant Securities are listed or admitted to trading
on the business day that next precedes the day of exercise or, if the Warrant Securities are not then listed or admitted to trading on
any registered national securities exchange, the average of the closing high bid and low asked prices as reported on any U.S. quotation
medium or inter-dealer quotation system on such date, or if on any such date the Warrant Securities are not listed or admitted to trading
on a registered national securities exchange, and are not quoted on any U.S. quotation medium or inter-dealer quotation system,
an amount equal to the same fraction of the average of the closing bid and asked prices as furnished by any Financial Industry Regulatory
Authority, Inc. (“FINRA”) member firm selected from time to time by the Company for that purpose at the close
of business on the business day that next precedes the day of exercise.
(g) Whenever
the Warrant Price then in effect is adjusted as herein provided, the Company shall mail to each holder of the Warrants at such holder’s
address as it shall appear on the books of the Company a statement setting forth the adjusted Warrant Price then and thereafter effective
under the provisions hereof, together with the facts, in reasonable detail, upon which such adjustment is based.
(h) Notwithstanding
anything to the contrary herein, in no event shall the Warrant Price, as adjusted in accordance with the terms hereof, be less than the
par value per ordinary share.
3.5 Notice
to Warrantholders. In case the Company shall (a) effect any dividend or distribution described in Section 3.4(b), (b) effect any Reorganization
Event, (c) make any distribution on or in respect of the ordinary shares in connection with the dissolution, liquidation or winding up
of the Company, or (d) reduce the then current Warrant Price pursuant to Section 3.4(d), then the Company shall mail to each holder of
Warrants at such holder’s address as it shall appear on the books of the Warrant Agent, at least ten days prior to the applicable
date hereinafter specified, a notice stating (x) the record date for such dividend or distribution, or, if a record is not to be taken,
the date as of which the holders of record of ordinary shares that will be entitled to such dividend or distribution are to be determined,
(y) the date on which such Reorganization Event, dissolution, liquidation or winding up is expected to become effective, and the date
as of which it is expected that holders of ordinary shares of record shall be entitled to exchange their ordinary shares for securities
or other property deliverable upon such Reorganization Event, dissolution, liquidation or winding up, or (z) the first date on which the
then current Warrant Price shall be reduced pursuant to Section 3.4(d). No failure to mail such notice nor any defect therein or in the
mailing thereof shall affect any such transaction or any adjustment in the Warrant Price required by Section 3.4.
3.6 [If
the Warrants are Subject to Acceleration by the Company, Insert — Acceleration of Warrants by the Company.
(a) At
any time on or after [●], the Company shall have the right to accelerate any or all Warrants at any time by causing them to expire
at the close of business on the day next preceding a specified date (the “Acceleration Date”), if the Market
Price (as hereinafter defined) of the ordinary shares equals or exceeds [●] percent ([●]%) of the then effective Warrant Price
on any twenty Trading Days (as hereinafter defined) within a period of thirty consecutive Trading Days ending no more than five Trading
Days prior to the date on which the Company gives notice to the Warrant Agent of its election to accelerate the Warrants.
(b) (b)
“Market Price” for each Trading Day shall be, if the ordinary shares are listed or admitted to trading on
any registered national securities exchange, the last reported sale price, regular way (or, if no such price is reported, the average
of the reported closing bid and asked prices, regular way) of ordinary shares, in either case as reported on the principal registered
national securities exchange on which the ordinary share are listed or admitted to trading or, if not listed or admitted to trading on
any registered national securities exchange, the average of the closing high bid and low asked prices as reported on any U.S. quotation
medium or inter-dealer quotation system, or if on any such date the ordinary shares are not listed or admitted to trading on a registered
national securities exchange and are not quoted on any U.S. quotation medium or inter-dealer quotation system, the average of the closing
bid and asked prices as furnished by any FINRA member firm selected from time to time by the Company for that purpose. “Trading
Day” shall be each Monday through Friday, other than any day on which securities are not traded in the system or on the
exchange that is the principal market for the ordinary shares, as determined by the Board of Directors of the Company.
(c) Notice
of an acceleration specifying the Acceleration Date shall be sent by mail first class, postage prepaid, to each registered holder of a
Warrant Certificate representing a Warrant accelerated at such holder’s address appearing on the books of the Warrant Agent not
more than sixty days nor less than thirty days before the Acceleration Date. Such notice of an acceleration also shall be given no more
than twenty days, and no less than ten days, prior to the mailing of notice to registered holders of Warrants pursuant to this Section
3.6, by publication at least once in a newspaper of general circulation in the City of New York.
(d) Any
Warrant accelerated may be exercised until [●] p.m., [City] time, on the business day next preceding the Acceleration Date. The
Warrant Price shall be payable as provided in Section 2.]
Article
4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
4.1 Exchange
and Transfer of Warrant Certificates. Upon surrender at the corporate trust office of the Warrant Agent, Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations evidencing such Warrants or the transfer thereof may be registered
in whole or in part; provided that such other Warrant Certificates evidence Warrants for the same aggregate number of Warrant Securities
as the Warrant Certificates so surrendered. The Warrant Agent shall keep, at its corporate trust office, books in which, subject to such
reasonable regulations as it may prescribe, it shall register Warrant Certificates and exchanges and transfers of outstanding Warrant
Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at its corporate trust office for exchange or registration
of transfer, properly endorsed or accompanied by appropriate instruments of registration of transfer and written instructions for transfer,
all in form satisfactory to the Company and the Warrant Agent. No service charge shall be made for any exchange or registration of transfer
of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental
charge that may be imposed in connection with any such exchange or registration of transfer. Whenever any Warrant Certificates are so
surrendered for exchange or registration of transfer, an authorized officer of the Warrant Agent shall manually countersign and deliver
to the person or persons entitled thereto a Warrant Certificate or Warrant Certificates duly authorized and executed by the Company, as
so requested. The Warrant Agent shall not be required to effect any exchange or registration of transfer which will result in the issuance
of a Warrant Certificate evidencing a Warrant for a fraction of a Warrant Security or a number of Warrants for a whole number of Warrant
Securities and a fraction of a Warrant Security. All Warrant Certificates issued upon any exchange or registration of transfer of Warrant
Certificates shall be the valid obligations of the Company, evidencing the same obligations and entitled to the same benefits under this
Agreement as the Warrant Certificate surrendered for such exchange or registration of transfer.
4.2 Treatment
of Holders of Warrant Certificates. The Company, the Warrant Agent and all other persons may treat the registered holder of a Warrant
Certificate as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary notwithstanding.
4.3 Cancellation
of Warrant Certificates. Any Warrant Certificate surrendered for exchange, registration of transfer or exercise of the Warrants evidenced
thereby shall, if surrendered to the Company, be delivered to the Warrant Agent and all Warrant Certificates surrendered or so delivered
to the Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be reissued and, except as expressly permitted by this
Agreement, no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu thereof. The Warrant Agent shall deliver to
the Company from time to time or otherwise dispose of canceled Warrant Certificates in a manner satisfactory to the Company.
Article
5
CONCERNING THE WARRANT AGENT
5.1 Warrant
Agent. The Company hereby appoints [●] as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein set forth, and [●] hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further powers and authority
to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions with respect
to such powers and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions hereof.
5.2 Conditions
of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof,
including the following to all of which the Company agrees and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation
and Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including reasonable
counsel fees) incurred without negligence, bad faith or willful misconduct by the Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Warrant Agent, arising out of or
in connection with its acting as Warrant Agent hereunder, including the reasonable costs and expenses of defending against any claim of
such liability.
(b) Agent
for the Company. In acting under this Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel.
The Warrant Agent may consult with counsel satisfactory to it, which may include counsel for the Company, and the written advice of
such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the advice of such counsel.
(d) Documents.
The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed
by it to be genuine and to have been presented or signed by the proper parties.
(e) Certain
Transactions. The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest in, Warrants,
with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee
or agent for, any committee or body of holders of Warrant Securities or other obligations of the Company as freely as if it were not the
Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent from acting as trustee under any indenture
to which the Company is a party.
(f) No
Liability for Interest. Unless otherwise agreed with the Company, the Warrant Agent shall have no liability for interest on any monies
at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates.
(g) No
Liability for Invalidity. The Warrant Agent shall have no liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent’s countersignature thereon).
(h) No
Responsibility for Representations. The Warrant Agent shall not be responsible for any of the recitals or representations herein or
in the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon), all of which are made solely by the Company.
(i) No
Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the
Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense
or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall
not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates authenticated by
the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds
of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance
of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from
a holder of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 6.2 hereof,
to make any demand upon the Company.
5.3 Resignation,
Removal and Appointment of Successors.
(a) The
Company agrees, for the benefit of the holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all the Warrants have been exercised or are no longer exercisable.
(b) The
Warrant Agent may at any time resign as agent by giving written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date shall not be less than three months after the date on
which such notice is given unless the Company otherwise agrees. The Warrant Agent hereunder may be removed at any time by the filing with
it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the intended date when it shall become
effective. Such resignation or removal shall take effect upon the appointment by the Company, as hereinafter provided, of a successor
Warrant Agent (which shall be a bank or trust company authorized under the laws of the jurisdiction of its organization to exercise corporate
trust powers) and the acceptance of such appointment by such successor Warrant Agent. The obligation of the Company under Section 5.2(a)
shall continue to the extent set forth therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In
case at any time the Warrant Agent shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or under any other
applicable Federal or state bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Warrant Agent or its property or affairs, or
shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become
due, or shall take corporate action in furtherance of any such action, or a decree or order for relief by a court having jurisdiction
in the premises shall have been entered in respect of the Warrant Agent in an involuntary case under the Federal bankruptcy laws, as now
or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency or similar law, or a decree or order by a court
having jurisdiction in the premises shall have been entered for the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or affairs, or any public officer shall take charge or control
of the Warrant Agent or of its property or affairs for the purpose of rehabilitation, conservation, winding up or liquidation, a successor
Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an instrument in writing, filed with the successor Warrant
Agent. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by the successor Warrant Agent of such appointment,
the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any
successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally
named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become
obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies, securities and
other property on deposit with or held by such predecessor, as Warrant Agent hereunder.
(e) Any
corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and business of the Warrant Agent, provided
that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
Article
6
MISCELLANEOUS
6.1 Amendment.
This Agreement may be amended by the parties hereto, without the consent of the holder of any Warrant Certificate, for the purpose
of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, or making any other provisions
with respect to matters or questions arising under this Agreement as the Company and the Warrant Agent may deem necessary or desirable;
provided that such action shall not materially adversely affect the interests of the holders of the Warrant Certificates.
6.2 Notices
and Demands to the Company and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Company by
the holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward such
notice or demand to the Company.
6.3 Addresses.
Any communication from the Company to the Warrant Agent with respect to this Agreement shall be addressed to [●], Attention:
[●] and any communication from the Warrant Agent to the Company with respect to this Agreement shall be addressed to Gamida Cell
Ltd., 116 Huntington Avenue, 7th Floor, Boston, Massachusetts 02116, Attention: Josh Patterson (or such other address as shall be specified
in writing by the Warrant Agent or by the Company).
6.4 Governing
Law. This Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of
the State of New York.
6.5 Delivery
of Prospectus. The Company shall furnish to the Warrant Agent sufficient copies of a prospectus meeting the requirements of the Securities
Act of 1933, as amended, relating to the Warrant Securities deliverable upon exercise of the Warrants (the “Prospectus”),
and the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to the holder of the Warrant Certificate
evidencing such Warrant, prior to or concurrently with the delivery of the Warrant Securities issued upon such exercise, a Prospectus.
The Warrant Agent shall not, by reason of any such delivery, assume any responsibility for the accuracy or adequacy of such Prospectus.
6.6 Obtaining
of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and authorities and securities act filings under United States Federal
and state laws (including without limitation a registration statement in respect of the Warrants and Warrant Securities under the Securities
Act of 1933, as amended), which may be or become requisite in connection with the issuance, sale, transfer, and delivery of the Warrant
Securities issued upon exercise of the Warrants, the issuance, sale, transfer and delivery of the Warrants or upon the expiration of the
period during which the Warrants are exercisable.
6.7 Persons
Having Rights Under the Agreement. Nothing in this Agreement shall give to any person other than the Company, the Warrant Agent and
the holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement.
6.8 Headings.
The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
6.9 Counterparts.
This Agreement may be executed in any number of counterparts, each of which as so executed shall be deemed to be an original, but
such counterparts shall together constitute but one and the same instrument.
6.10 Inspection
of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office of the Warrant
Agent for inspection by the holder of any Warrant Certificate. The Warrant Agent may require such holder to submit such holder’s
Warrant Certificate for inspection by it.
In
Witness Whereof, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
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Gamida Cell Ltd., as Company |
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[Signature
Page to Gamida Cell Ltd. Ordinary share Warrant Agreement]
Exhibit
A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
[Form of Legend if Warrants are not immediately exercisable.] |
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[Prior to [●], Warrants evidenced by this Warrant Certificate cannot be exercised.] |
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER [●] P.M., [City] time, ON [●].
GAMIDA CELL LTD.
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
ORDINARY SHARE, NIS 0.01 PAR VALUE PER SHARE
This certifies that [●]
or registered assigns is the registered owner of the above indicated number of Warrants, each Warrant entitling such owner to purchase,
at any time [after [●] p.m., [City] time, [on [●] and] on or before [●] p.m., [City] time, on [●], [●] ordinary
shares, NIS 0.01 par value per share (the “Warrant Securities”), of Gamida Cell Ltd. (the “Company”)
on the following basis: during the period from [●], through and including [●], the exercise price per Warrant Security will
be $[●], subject to adjustment as provided in the Warrant Agreement (as hereinafter defined) (the “Warrant Price”).
The Holder may exercise the Warrants evidenced hereby by providing certain information set forth on the back hereof and by paying in full,
in lawful money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds]
[by bank wire transfer in immediately available funds], the Warrant Price for each Warrant Security with respect to which this Warrant
is exercised to the Warrant Agent (as hereinafter defined) and by surrendering this Warrant Certificate, with the purchase form on the
back hereof duly executed, at the corporate trust office of [name of Warrant Agent], or its successor as warrant agent (the “Warrant
Agent”), which is, on the date hereof, at the address specified on the reverse hereof, and upon compliance with and subject
to the conditions set forth herein and in the Warrant Agreement (as hereinafter defined).
The term “Holder”
as used herein shall mean the person in whose name at the time this Warrant Certificate shall be registered upon the books to be maintained
by the Warrant Agent for that purpose pursuant to Section 4 of the Warrant Agreement.
The Warrants evidenced by this
Warrant Certificate may be exercised to purchase a whole number of Warrant Securities in registered form. Upon any exercise of fewer than
all of the Warrants evidenced by this Warrant Certificate, there shall be issued to the Holder hereof a new Warrant Certificate evidencing
Warrants for the number of Warrant Securities remaining unexercised.
This Warrant Certificate is
issued under and in accordance with the Warrant Agreement dated as of [●] (the “Warrant Agreement”), between
the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms
and provisions the Holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement are on file at the
above-mentioned office of the Warrant Agent.
Transfer of this Warrant Certificate
may be registered when this Warrant Certificate is surrendered at the corporate trust office of the Warrant Agent by the registered owner
or such owner’s assigns, in the manner and subject to the limitations provided in the Warrant Agreement.
After countersignature by the
Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the corporate trust
office of the Warrant Agent for Warrant Certificates representing Warrants for the same aggregate number of Warrant Securities.
This Warrant Certificate shall
not entitle the Holder hereof to any of the rights of a holder of the Warrant Securities, including, without limitation, the right to
receive payments of dividends or distributions, if any, on the Warrant Securities (except to the extent set forth in the Warrant Agreement)
or to exercise any voting rights.
Reference is hereby made to
the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for all purposes have
the same effect as if set forth at this place.
This Warrant Certificate shall
not be valid or obligatory for any purpose until countersigned by the Warrant Agent.
In
Witness Whereof, the Company has caused this Warrant to be executed in its name and on its behalf by the facsimile signatures
of its duly authorized officers.
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GAMIDA CELL LTD., as Company |
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[●], as Warrant Agent |
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[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
To exercise any Warrants evidenced
hereby for Warrant Securities (as hereinafter defined), the Holder must pay, in lawful money of the United States of America, [in cash
or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds],
the Warrant Price in full for Warrants exercised, to [●] [address of Warrant Agent], Attention: [●], which payment must specify
the name of the Holder and the number of Warrants exercised by such Holder. In addition, the Holder must complete the information required
below and present this Warrant Certificate in person or by mail (certified or registered mail is recommended) to the Warrant Agent at
the appropriate address set forth above. This Warrant Certificate, completed and duly executed, must be received by the Warrant Agent
within five business days of the payment.
(To be executed upon exercise of Warrants)
The undersigned hereby irrevocably
elects to exercise ______ Warrants, evidenced by this Warrant Certificate, to purchase _______ ordinary shares, NIS 0.01 par value per
share (the “Warrant Securities”), of Gamida Cell Ltd. and represents that the undersigned has tendered payment
for such Warrant Securities, in lawful money of the United States of America, [in cash or by certified check or official bank check in
New York Clearing House funds] [by bank wire transfer in immediately available funds], to the order of Gamida Cell Ltd., c/o [insert name
and address of Warrant Agent], in the amount of $_________ in accordance with the terms hereof. The undersigned requests that said Warrant
Securities be in fully registered form in the authorized denominations, registered in such names and delivered all as specified in accordance
with the instructions set forth below.
If the number of Warrants
exercised is less than all of the Warrants evidenced hereby, the undersigned requests that a new Warrant Certificate evidencing the Warrants
for the number of Warrant Securities remaining unexercised be issued and delivered to the undersigned unless otherwise specified in the
instructions below.
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Signature Guaranteed: |
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Signature |
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(Signature must conform in all respects to name
of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a FINRA member firm).
This Warrant may be exercised at the following
addresses: By hand at:
[●]
By mail at:
[Instructions as to form and delivery of Warrant
Securities and, if applicable, Warrant Certificates evidencing Warrants for the number of Warrant Securities remaining unexercised—complete
as appropriate.]
ASSIGNMENT
[Form of assignment to be executed if Warrant Holder
desires to transfer Warrant]
For
Value Received, ______________ hereby sells, assigns and transfers unto:
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the right represented by the within Warrant to
purchase _______________ ordinary shares of Gamida Cell Ltd. to which the within Warrant relates and appoints ____________________ attorney
to transfer such right on the books of the Warrant Agent with full power of substitution in the premises.
(Signature must conform in
all respects to name of holder as specified on the face of the Warrant)
Signature Guaranteed
Exhibit 4.5
Gamida
Cell Ltd.
and
_____________, As Warrant Agent
Form
of Debt Securities
Warrant Agreement
Dated As Of __________
Gamida Cell Ltd. Form of Debt Securities
Warrant Agreement
This
Debt Securities Warrant Agreement (this “Agreement”), dated as of [●], between Gamida
Cell Ltd., a company organized under the laws of the State of Israel (the “Company”), and [●],
a [corporation] [national banking association] organized and existing under the laws of [●] and having a corporate trust office
in [●], as warrant agent (the “Warrant Agent”).
WHEREAS, the Company
has entered into an indenture dated as of [●] (the “Indenture”), with [●], as trustee (such trustee,
and any successors to such trustee, herein called the “Trustee”), providing for the issuance from time to time
of its debt securities, to be issued in one or more series as provided in the Indenture (the “Debt Securities”);
Whereas,
the Company proposes to sell [If Warrants are sold with other securities —[title of such other securities being
offered] (the “Other Securities”) with] warrant certificates evidencing one or more warrants (the “Warrants”
or, individually, a “Warrant”) representing the right to purchase [title of Debt Securities purchasable through
exercise of Warrants] (the “Warrant Debt Securities”), such warrant certificates and other warrant certificates
issued pursuant to this Agreement being herein called the “Warrant Certificates”; and
Whereas,
the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection
with the issuance, registration, transfer, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement wishes
to set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which they may be
issued, registered, transferred, exchanged, exercised and replaced.
Now
Therefore, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows:
Article
1
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
1.1 Issuance
of Warrants. [If Warrants alone — Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Other Securities and Warrants — Warrant Certificates will be issued in connection with the issuance of the Other
Securities but shall be separately transferable and each Warrant Certificate shall evidence one or more Warrants.] Each Warrant evidenced
thereby shall represent the right, subject to the provisions contained herein and therein, to purchase one Warrant Debt Security. [If
Other Securities and Warrants — Warrant Certificates will be issued with the Other Securities and each Warrant Certificate
will evidence [●] Warrants for each [$[●] principal amount] [[●] shares] of Other Securities issued.]
1.2 Execution
and Delivery of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be in registered form substantially in the
form set forth in Exhibit A hereto, shall be dated the date of its countersignature by the Warrant Agent and may have such letters,
numbers, or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as
the officers of the Company executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which the Warrants may be listed, or to conform to usage. The Warrant
Certificates shall be signed on behalf of the Company by any of its present or future chief executive officers, presidents, senior vice
presidents, vice presidents, chief financial officers, chief legal officers, treasurers, assistant treasurers, controllers, assistant
controllers, secretaries or assistant secretaries under its corporate seal reproduced thereon. Such signatures may be manual or facsimile
signatures of such authorized officers and may be imprinted or otherwise reproduced on the Warrant Certificates. The seal of the Company
may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall
be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been countersigned
by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company
shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued hereunder.
In case any officer of the
Company who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall cease to be such officer
before the Warrant Certificates so signed shall have been countersigned and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the person who signed such Warrant Certificates ceased to be such officer of the
Company; and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual date of the execution of
such Warrant Certificate, shall be the proper officers of the Company, although at the date of the execution of this Agreement any such
person was not such officer.
The term “holder”
or “holder of a Warrant Certificate” as used herein shall mean any person in whose name at the time any Warrant
Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose.
1.3 Issuance
of Warrant Certificates. Warrant Certificates evidencing the right to purchase Warrant Debt Securities may be executed by the Company
and delivered to the Warrant Agent upon the execution of this Agreement or from time to time thereafter. The Warrant Agent shall, upon
receipt of Warrant Certificates duly executed on behalf of the Company, countersign such Warrant Certificates and shall deliver such Warrant
Certificates to or upon the order of the Company.
Article
2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
2.1 Warrant
Price. During the period specified in Section 2.2, each Warrant shall, subject to the terms of this Agreement and the applicable Warrant
Certificate, entitle the holder thereof to purchase the principal amount of Warrant Debt Securities specified in the applicable Warrant
Certificate at an exercise price of [●]% of the principal amount thereof [plus accrued amortization, if any, of the original issue
discount of the Warrant Debt Securities] [plus accrued interest, if any, from the most recent date from which interest shall have been
paid on the Warrant Debt Securities or, if no interest shall have been paid on the Warrant Debt Securities, from the date of their initial
issuance.] [The original issue discount ($[●] for each $1,000 principal amount of Warrant Debt Securities) will be amortized at
a [●]% annual rate, computed on a[n] [semi-] annual basis [using a 360-day year consisting of twelve 30-day months].] Such purchase
price for the Warrant Debt Securities is referred to in this Agreement as the “Warrant Price.
2.2 Duration
of Warrants. Each Warrant may be exercised in whole or in part at any time, as specified herein, on or after [the date thereof] [●]
and at or before [●] p.m., [City] time, on [●] or such later date as the Company may designate by notice to the Warrant Agent
and the holders of Warrant Certificates mailed to their addresses as set forth in the record books of the Warrant Agent (the “Expiration
Date”). Each Warrant not exercised at or before [●] p.m., [City] time, on the Expiration Date shall become void, and
all rights of the holder of the Warrant Certificate evidencing such Warrant under this Agreement shall cease.
2.3 Exercise
of Warrants.
(a) During
the period specified in Section 2.2, the Warrants may be exercised to purchase a whole number of Warrant Debt Securities in registered
form by providing certain information as set forth on the reverse side of the Warrant Certificate and by paying in full, in lawful money
of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire
transfer in immediately available funds] the Warrant Price for each Warrant Debt Security with respect to which a Warrant is being exercised
to the Warrant Agent at its corporate trust office, provided that such exercise is subject to receipt within five business days of such
payment by the Warrant Agent of the Warrant Certificate with the form of election to purchase Warrant Debt Securities set forth on the
reverse side of the Warrant Certificate properly completed and duly executed. The date on which payment in full of the Warrant Price is
received by the Warrant Agent shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to be the date on which the
Warrant is exercised; provided, however, that if, at the date of receipt of such Warrant Certificates and payment in full of the Warrant
Price, the transfer books for the Warrant Debt Securities purchasable upon the exercise of such Warrants shall be closed, no such receipt
of such Warrant Certificates and no such payment of such Warrant Price shall be effective to constitute the person so designated to be
named as the holder of record of such Warrant Debt Securities on such date, but shall be effective to constitute such person as the holder
of record of such Warrant Debt Securities for all purposes at the opening of business on the next succeeding day on which the transfer
books for the Warrant Debt Securities purchasable upon the exercise of such Warrants shall be opened, and the certificates for the Warrant
Debt Securities in respect of which such Warrants are then exercised shall be issuable as of the date on such next succeeding day on which
the transfer books shall next be opened, and until such date the Company shall be under no duty to deliver any certificate for such Warrant
Debt Securities. The Warrant Agent shall deposit all funds received by it in payment of the Warrant Price in an account of the Company
maintained with it and shall advise the Company by telephone at the end of each day on which a payment for the exercise of Warrants is
received of the amount so deposited to its account. The Warrant Agent shall promptly confirm such telephone advice to the Company in writing.
(b) The
Warrant Agent shall, from time to time, as promptly as practicable, advise the Company of (i) the number of Warrant Debt Securities with
respect to which Warrants were exercised, (ii) the instructions of each holder of the Warrant Certificates evidencing such Warrants with
respect to delivery of the Warrant Debt Securities to which such holder is entitled upon such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants for the remaining Warrant Debt Securities after such exercise, and (iv) such other information
as the Company or the Trustee shall reasonably require.
(c) As
soon as practicable after the exercise of any Warrant, the Company shall issue pursuant to the Indenture, in authorized denominations,
to or upon the order of the holder of the Warrant Certificate evidencing such Warrant the Warrant Debt Securities to which such holder
is entitled, in fully registered form, registered in such name or names as may be directed by such holder. If fewer than all of the Warrants
evidenced by such Warrant Certificate are exercised, the Company shall execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, a new Warrant Certificate evidencing Warrants for the number of Warrant Debt Securities remaining unexercised.
(d) The
Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Debt Securities, and in the event that any such transfer is involved, the Company shall not be required
to issue or deliver any Warrant Debt Securities until such tax or other charge shall have been paid or it has been established to the
Company’s satisfaction that no such tax or other charge is due.
Article
3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF
WARRANT CERTIFICATES
3.1 No
Rights as Holder of Warrant Debt Securities Conferred by Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of Warrant Debt Securities, including, without limitation, the
right to receive the payment of principal of (or premium, if any) or interest, if any, on the Warrant Debt Securities or to enforce any
of the covenants in the Indenture.
3.2 Lost,
Stolen, Mutilated or Destroyed Warrant Certificates. Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it and
the Company of the ownership of and the loss, theft, destruction or mutilation of any Warrant Certificate and/or indemnity reasonably
satisfactory to the Warrant Agent and the Company and, in the case of mutilation, upon surrender of the mutilated Warrant Certificate
to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such Warrant Certificate
has been acquired by a bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign
and deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate of
the same tenor and evidencing Warrants for a like principal amount of Warrant Debt Securities. Upon the issuance of any new Warrant Certificate
under this Section 3.2, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent) in connection therewith.
Every substitute Warrant Certificate executed and delivered pursuant to this Section 3.2 in lieu of any lost, stolen or destroyed Warrant
Certificate shall represent an additional contractual obligation of the Company, whether or not the lost, stolen or destroyed Warrant
Certificate shall be at any time enforceable by anyone, and shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered hereunder. The provisions of this Section 3.2 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, lost, stolen or destroyed
Warrant Certificates.
3.3 Holder
of Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any holder of a Warrant Certificate,
without the consent of the Warrant Agent, , the Trustee, the holder of any Warrant Debt Securities or the holder of any other Warrant
Certificate, may, in such holder’s own behalf and for such holder’s own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, such holder’s right to exercise
the Warrants evidenced by such holder’s Warrant Certificate in the manner provided in such holder’s Warrant Certificates and
in this Agreement.
3.4 Merger,
Sale, Conveyance or Lease. In case of (a) any share exchange, merger or similar transaction of the Company with or into another person
or entity (other than a share exchange, merger or similar transaction in which the Company is the acquiring or surviving corporation)
or (b) the sale, exchange, lease, transfer or other disposition of all or substantially all of the properties and assets of the Company
as an entirety (in any such case, a “Reorganization Event”), then, as a condition of such Reorganization Event,
lawful provisions shall be made, and duly executed documents evidencing the same from the Company’s successor shall be delivered
to the holders of the Warrants, so that such successor shall succeed to and be substituted for the Company, and assume all the Company’s
obligations under, this Agreement and the Warrants. The Company shall thereupon be relieved of any further obligation hereunder or under
the Warrants, and the Company as the predecessor corporation may thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor or assuming entity thereupon may cause to be signed, and may issue either in its own name or in the name of the Company,
any or all of the Warrants issuable hereunder which heretofore shall not have been signed by the Company, and may execute and deliver
securities in its own name, in fulfillment of its obligations to deliver Warrant Debt Securities upon exercise of the Warrants. All the
Warrants so issued shall in all respects have the same legal rank and benefit under this Agreement as the Warrants theretofore or thereafter
issued in accordance with the terms of this Agreement as though all of such Warrants had been issued at the date of the execution hereof.
In any case of any such Reorganization Event, such changes in phraseology and form (but not in substance) may be made in the Warrants
thereafter to be issued as may be appropriate. The Warrant Agent may receive a written opinion of legal counsel as conclusive evidence
that any such Reorganization Event complies with the provisions of this Section 3.4.
3.5 Notice
to Warrantholders. In case the Company shall (a) effect any Reorganization Event or (b) make any distribution on or in respect of
the [title of Warrant Debt Securities] in connection with the dissolution, liquidation or winding up of the Company, then the Company
shall mail to each holder of Warrants at such holder’s address as it shall appear on the books of the Warrant Agent, at least ten
days prior to the applicable date hereinafter specified, a notice stating the date on which such Reorganization Event, dissolution, liquidation
or winding up is expected to become effective, and the date as of which it is expected that holders of [title of Warrant Debt Securities]
of record shall be entitled to exchange their shares of [title of Warrant Debt Securities] for securities or other property deliverable
upon such Reorganization Event, dissolution, liquidation or winding up. No failure to mail such notice nor any defect therein or in the
mailing thereof shall affect any such transaction.
Article
4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
4.1 Exchange
and Transfer of Warrant Certificates. Upon surrender at the corporate trust office of the Warrant Agent, Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations evidencing such Warrants or the transfer thereof may be registered
in whole or in part; provided that such other Warrant Certificates evidence Warrants for the same aggregate principal amount of Warrant
Debt Securities as the Warrant Certificates so surrendered. The Warrant Agent shall keep, at its corporate trust office, books in which,
subject to such reasonable regulations as it may prescribe, it shall register Warrant Certificates and exchanges and transfers of outstanding
Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at its corporate trust office for exchange or registration
of transfer, properly endorsed or accompanied by appropriate instruments of registration of transfer and written instructions for transfer,
all in form satisfactory to the Company and the Warrant Agent. No service charge shall be made for any exchange or registration of transfer
of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental
charge that may be imposed in connection with any such exchange or registration of transfer. Whenever any Warrant Certificates are so
surrendered for exchange or registration of transfer, an authorized officer of the Warrant Agent shall manually countersign and deliver
to the person or persons entitled thereto a Warrant Certificate or Warrant Certificates duly authorized and executed by the Company, as
so requested. The Warrant Agent shall not be required to effect any exchange or registration of transfer which will result in the issuance
of a Warrant Certificate evidencing a Warrant for a fraction of a Warrant Debt Security or a number of Warrants for a whole number of
Warrant Debt Securities and a fraction of a Warrant Debt Security. All Warrant Certificates issued upon any exchange or registration of
transfer of Warrant Certificates shall be the valid obligations of the Company, evidencing the same obligations and entitled to the same
benefits under this Agreement as the Warrant Certificate surrendered for such exchange or registration of transfer.
4.2 Treatment
of Holders of Warrant Certificates. The Company, the Warrant Agent and all other persons may treat the registered holder of a Warrant
Certificate as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary notwithstanding.
4.3 Cancellation
of Warrant Certificates. Any Warrant Certificate surrendered for exchange, registration of transfer or exercise of the Warrants evidenced
thereby shall, if surrendered to the Company, be delivered to the Warrant Agent and all Warrant Certificates surrendered or so delivered
to the Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be reissued and, except as expressly permitted by this
Agreement, no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu thereof. The Warrant Agent shall deliver to
the Company from time to time or otherwise dispose of canceled Warrant Certificates in a manner satisfactory to the Company.
Article
5
CONCERNING THE WARRANT AGENT
5.1 Warrant
Agent. The Company hereby appoints [●] as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein set forth, and [●] hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further powers and authority
to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions with respect
to such powers and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions hereof.
5.2 Conditions
of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof,
including the following to all of which the Company agrees and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation
and Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including reasonable
counsel fees) incurred without negligence, bad faith or willful misconduct by the Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Warrant Agent, arising out of or
in connection with its acting as Warrant Agent hereunder, including the reasonable costs and expenses of defending against any claim of
such liability.
(b) Agent
for the Company. In acting under this Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel.
The Warrant Agent may consult with counsel satisfactory to it, which may include counsel for the Company, and the written advice of
such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the advice of such counsel.
(d) Documents.
The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed
by it to be genuine and to have been presented or signed by the proper parties.
(e) Certain
Transactions. The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest in, Warrants,
with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee
or agent for, any committee or body of holders of Warrant Debt Securities or other obligations of the Company as freely as if it were
not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent from acting as trustee under any
indenture to which the Company is a party, including, without limitation, as Trustee under the Indenture.
(f) No
Liability for Interest. Unless otherwise agreed with the Company, the Warrant Agent shall have no liability for interest on any monies
at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates.
(g) No
Liability for Invalidity. The Warrant Agent shall have no liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent’s countersignature thereon).
(h) No
Responsibility for Representations. The Warrant Agent shall not be responsible for any of the recitals or representations herein or
in the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon), all of which are made solely by the Company.
(i) No
Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the
Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense
or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall
not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates authenticated by
the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds
of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance
of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from
a holder of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 6.2 hereof,
to make any demand upon the Company.
5.3 Resignation,
Removal and Appointment of Successors.
(a) The
Company agrees, for the benefit of the holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all the Warrants have been exercised or are no longer exercisable.
(b) The
Warrant Agent may at any time resign as agent by giving written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date shall not be less than three months after the date on
which such notice is given unless the Company otherwise agrees. The Warrant Agent hereunder may be removed at any time by the filing with
it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the intended date when it shall become
effective. Such resignation or removal shall take effect upon the appointment by the Company, as hereinafter provided, of a successor
Warrant Agent (which shall be a bank or trust company authorized under the laws of the jurisdiction of its organization to exercise corporate
trust powers) and the acceptance of such appointment by such successor Warrant Agent. The obligation of the Company under Section 5.2(a)
shall continue to the extent set forth therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In
case at any time the Warrant Agent shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or under any other
applicable Federal or state bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Warrant Agent or its property or affairs, or
shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become
due, or shall take corporate action in furtherance of any such action, or a decree or order for relief by a court having jurisdiction
in the premises shall have been entered in respect of the Warrant Agent in an involuntary case under the Federal bankruptcy laws, as now
or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency or similar law, or a decree or order by a court
having jurisdiction in the premises shall have been entered for the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or affairs, or any public officer shall take charge or control
of the Warrant Agent or of its property or affairs for the purpose of rehabilitation, conservation, winding up or liquidation, a successor
Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an instrument in writing, filed with the successor Warrant
Agent. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by the successor Warrant Agent of such appointment,
the Warrant Agent shall cease to be Warrant Agent hereunder.
(d) Any
successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally
named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become
obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies, securities and
other property on deposit with or held by such predecessor, as Warrant Agent hereunder.
(e) Any
corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and business of the Warrant Agent, provided
that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
Article
6
MISCELLANEOUS
6.1 Amendment.
This Agreement may be amended by the parties hereto, without the consent of the holder of any Warrant Certificate, for the purpose
of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, or making any other provisions
with respect to matters or questions arising under this Agreement as the Company and the Warrant Agent may deem necessary or desirable;
provided that such action shall not materially adversely affect the interests of the holders of the Warrant Certificates.
6.2 Notices
and Demands to the Company and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Company by
the holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward such
notice or demand to the Company.
6.3 Addresses.
Any communication from the Company to the Warrant Agent with respect to this Agreement shall be addressed to [●], Attention:
[●] and any communication from the Warrant Agent to the Company with respect to this Agreement shall be addressed to Gamida Cell
Ltd., 116 Huntington Avenue, 7th Floor, Boston, Massachusetts 02116, Attention: Josh Patterson (or such other address as shall be specified
in writing by the Warrant Agent or by the Company).
6.4 Governing
Law. This Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of
the State of New York.
6.5 Delivery
of Prospectus. The Company shall furnish to the Warrant Agent sufficient copies of a prospectus meeting the requirements of the Securities
Act of 1933, as amended, relating to the Warrant Debt Securities deliverable upon exercise of the Warrants (the “Prospectus”),
and the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to the holder of the Warrant Certificate
evidencing such Warrant, prior to or concurrently with the delivery of the Warrant Debt Securities issued upon such exercise, a Prospectus.
The Warrant Agent shall not, by reason of any such delivery, assume any responsibility for the accuracy or adequacy of such Prospectus.
6.6 Obtaining
of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and authorities and securities act filings under United States Federal
and state laws (including without limitation a registration statement in respect of the Warrants and Warrant Debt Securities under the
Securities Act of 1933, as amended), which may be or become requisite in connection with the issuance, sale, transfer, and delivery of
the Warrant Debt Securities issued upon exercise of the Warrants, the issuance, sale, transfer and delivery of the Warrants or upon the
expiration of the period during which the Warrants are exercisable.
6.7 Persons
Having Rights Under the Agreement. Nothing in this Agreement shall give to any person other than the Company, the Warrant Agent and
the holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement.
6.8 Headings.
The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
6.9 Counterparts.
This Agreement may be executed in any number of counterparts, each of which as so executed shall be deemed to be an original, but
such counterparts shall together constitute but one and the same instrument.
6.10 Inspection
of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office of the Warrant
Agent for inspection by the holder of any Warrant Certificate. The Warrant Agent may require such holder to submit such holder’s
Warrant Certificate for inspection by it.
In
Witness Whereof, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
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[Signature Page to Gamida Cell
Ltd. Debt Securities Warrant Agreement]
Exhibit
A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
[Form of Legend if Warrants are not immediately exercisable.] |
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[Prior to [●], Warrants evidenced by this Warrant Certificate cannot be exercised.] |
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER [●] P.M., [City] time, ON [●].
GAMIDA CELL LTD.
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
[TITLE OF WARRANT DEBT SECURITIES]
This certifies that [●] or registered assigns
is the registered owner of the above indicated number of Warrants, each Warrant entitling such owner to purchase, at any time [after [●]
p.m., [City] time, [on [●] and] on or before [●] p.m., [City] time, on [●], $[●] principal amount of [TITLE OF
WARRANT DEBT SECURITIES] (the “Warrant Debt Securities”), of Gamida Cell Ltd. (the “Company”)
issued or to be issued under the Indenture (as hereinafter defined), on the following basis: during the period from [●], through
and including [●], each Warrant shall entitle the Holder thereof, subject to the provisions of this Agreement, to purchase the principal
amount of Warrant Debt Securities stated in the Warrant Certificate at the warrant price (the “Warrant Price”)
of [●]% of the principal amount thereof [plus accrued amortization, if any, of the original issue discount of the Warrant Debt Securities]
[plus accrued interest, if any, from the most recent date from which interest shall have been paid on the Warrant Debt Securities or,
if no interest shall have been paid on the Warrant Debt Securities, from the date of their original issuance]. [The original issue discount
($[●] for each $1,000 principal amount of Warrant Debt Securities) will be amortized at a [●]% annual rate, computed on a[n]
[semi-]annual basis [using a 360-day year consisting of twelve 30-day months]. The Holder may exercise the Warrants evidenced hereby by
providing certain information set forth on the back hereof and by paying in full, in lawful money of the United States of America, [in
cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds],
the Warrant Price for each Warrant Debt Security with respect to which this Warrant is exercised to the Warrant Agent (as hereinafter
defined) and by surrendering this Warrant Certificate, with the purchase form on the back hereof duly executed, at the corporate trust
office of [name of Warrant Agent], or its successor as warrant agent (the “Warrant Agent”), which is, on the
date hereof, at the address specified on the reverse hereof, and upon compliance with and subject to the conditions set forth herein and
in the Warrant Agreement (as hereinafter defined).
The term “Holder” as
used herein shall mean the person in whose name at the time this Warrant Certificate shall be registered upon the books to be maintained
by the Warrant Agent for that purpose pursuant to Section 4 of the Warrant Agreement.
The Warrants evidenced by this
Warrant Certificate may be exercised to purchase Warrant Debt Securities in the principal amount of $1,000 or any integral multiple thereof
in registered form. Upon any exercise of fewer than all of the Warrants evidenced by this Warrant Certificate, there shall be issued to
the Holder hereof a new Warrant Certificate evidencing Warrants for the aggregate principal amount of Warrant Debt Securities remaining
unexercised.
This Warrant Certificate is
issued under and in accordance with the Warrant Agreement dated as of [●] (the “Warrant Agreement”), between
the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms
and provisions the Holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement are on file at the
above-mentioned office of the Warrant Agent.
The Warrant Debt Securities to be issued and delivered
upon the exercise of Warrants evidenced by this Warrant Certificate will be issued under and in accordance with an Indenture, dated as
of [●] (the “Indenture”), between the Company and [●], as trustee (such trustee, and any successors
to such trustee, the “Trustee”)] and will be subject to the terms and provisions contained in the Warrant Debt
Securities and in the Indenture. Copies of the Indenture, including the form of the Warrant Debt Securities, are on file at the corporate
trust office of the Trustee.
Transfer of this Warrant Certificate
may be registered when this Warrant Certificate is surrendered at the corporate trust office of the Warrant Agent by the registered owner
or such owner’s assigns, in the manner and subject to the limitations provided in the Warrant Agreement.
After countersignature by the
Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the corporate trust
office of the Warrant Agent for Warrant Certificates representing Warrants for the same aggregate principal amount of Warrant Debt Securities.
This Warrant Certificate shall
not entitle the Holder hereof to any of the rights of a holder of the Warrant Debt Securities, including, without limitation, the right
to receive payments of principal of (and premium, if any) or interest, if any, on the Warrant Debt Securities or to enforce any of the
covenants of the Indenture.
Reference is hereby made to
the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for all purposes have
the same effect as if set forth at this place.
This Warrant Certificate shall
not be valid or obligatory for any purpose until countersigned by the Warrant Agent.
In
Witness Whereof, the Company has caused this Warrant to be executed in its name and on its behalf by the facsimile signatures
of its duly authorized officers.
GAMIDA CELL LTD., as Company |
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COUNTERSIGNED
[●], as Warrant Agent
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[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
To exercise any Warrants evidenced
hereby for Warrant Debt Securities (as hereinafter defined), the Holder must pay, in lawful money of the United States of America, [in
cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds],
the Warrant Price in full for Warrants exercised, to [●] [address of Warrant Agent], Attention: [●], which payment must specify
the name of the Holder and the number of Warrants exercised by such Holder. In addition, the Holder must complete the information required
below and present this Warrant Certificate in person or by mail (certified or registered mail is recommended) to the Warrant Agent at
the appropriate address set forth above. This Warrant Certificate, completed and duly executed, must be received by the Warrant Agent
within five business days of the payment.
(To be executed upon exercise of Warrants)
The undersigned hereby irrevocably
elects to exercise ______ Warrants, evidenced by this Warrant Certificate, to purchase _______ $[●] principal amount of the [TITLE
OF WARRANT DEBT SECURITIES] (the “Warrant Debt Securities”), of Gamida Cell Ltd.. and represents that the undersigned
has tendered payment for such Warrant Debt Securities, in lawful money of the United States of America, [in cash or by certified check
or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds], to the order of Gamida
Cell Ltd., c/o [insert name and address of Warrant Agent], in the amount of $_________ in accordance with the terms hereof. The undersigned
requests that said principal amount of Warrant Debt Securities be in fully registered form in the authorized denominations, registered
in such names and delivered all as specified in accordance with the instructions set forth below.
If the number of Warrants
exercised is less than all of the Warrants evidenced hereby, the undersigned requests that a new Warrant Certificate evidencing the Warrants
for the aggregate principal amount of Warrant Debt Securities remaining unexercised be issued and delivered to the undersigned unless
otherwise specified in the instructions below.
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Signature Guaranteed: |
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(Signature must conform in all respects to name
of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a FINRA member firm).
This Warrant may be exercised at the following
addresses: By hand at:
[●]
By mail at:
[Instructions as to form and delivery of Warrant
Debt Securities and, if applicable, Warrant Certificates evidencing Warrants for the number of Warrant Debt Securities remaining unexercised—complete
as appropriate.]
ASSIGNMENT
[Form of assignment to be executed if Warrant Holder
desires to transfer Warrant]
For
Value Received, ______________ hereby sells, assigns and transfers unto:
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the right represented by the within Warrant to
purchase ________ aggregate principal amount of [Title of Warrant Debt Securities] of Gamida Cell Ltd. to which the within Warrant relates
and appoints ____________________ attorney to transfer such right on the books of the Warrant Agent with full power of substitution in
the premises.
(Signature must conform in
all respects to name of holder as specified on the face of the Warrant)
Exhibit 5.1
![](https://www.sec.gov/Archives/edgar/data/1600847/000121390023087635/ex5-1_001.jpg)
November 15, 2023
Gamida Cell Ltd.
116 Huntington Avenue
Boston, MA 02116
USA
Re: Registration Statement on Form
S-3
Ladies and Gentlemen:
We have acted as Israeli
counsel to Gamida Cell Ltd., a company organized under the laws of the State of Israel (the “Company”), in connection
with its filing of a registration statement on Form S-3 (the “Registration Statement”) under the Securities Act of
1933, as amended (the “Securities Act”), with the U.S. Securities and Exchange Commission (the “Commission”),
which registers the offer, issuance and sale by the Company, from time to time, of up to $150 million, in the aggregate, of any one or
more of the following types of securities, individually or in units:
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ordinary shares, par value NIS 0.01 of the Company (“Ordinary Shares” or “Shares”); |
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warrants to purchase Ordinary Shares (“Warrants”); |
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subscription rights to purchase Shares (the “Rights”); |
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(d) |
senior or subordinated debt securities of the Company (the “Debt Securities”) to be issued by the Company pursuant to an indenture (a “Company Indenture”) to be executed by the Company and the relevant trustee under the Company Indenture ; or |
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(e) |
units comprised of one or more of the other securities that may be offered under the Registration Statement (the “Units”) (collectively, the Shares, Warrants, Rights, Debt Securities and Units are referred to as the “Securities”). |
We have also acted as Israeli
counsel to the Company in connection with the Amended & Restated Open Market Sale AgreementSM, dated as of June 5, 2023
(the “Sales Agreement”), entered into by and between the Company and Jefferies LLC pursuant to which the Company has
agreed to offer and sell Ordinary Shares having an aggregate offering price of up to $50 million (the “ATM Shares”).
The ATM Shares will be issued pursuant to the Registration Statement and the related prospectus contained therein covering the ATM Shares.
This opinion letter is furnished
to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, in connection
with the filing of the Registration Statement.
In connection herewith,
we have examined the originals, or photocopies or copies, certified or otherwise identified to our satisfaction, of: (i) the form of the
Registration Statement, to which this opinion letter is attached as an exhibit; (ii) a copy of the amended and restated articles of association
of the Company, as currently in effect (the “Articles”); (iii) minutes of the meeting of the board of directors of
the Company (the “Board”) at which the filing of the Registration Statement and the actions to be taken in connection
therewith were approved; (iv) minutes of the meeting of the Board at which the execution of the Sales Agreement and the actions to be
taken in connection therewith were approved; and (v) such other corporate records, agreements, documents and other instruments, and such
certificates or comparable documents of public officials and of officers and representatives of the Company as we have deemed relevant
and necessary as a basis for the opinions hereafter set forth. We have also made inquiries of such officers and representatives as we
have deemed relevant and necessary as a basis for the opinions hereafter set forth.
In such examination, we
have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents submitted to us as certified, confirmed as photostatic copies
and the authenticity of the originals of such latter documents. As to all questions of fact material to these opinions that have not been
independently established, we have relied upon certificates or comparable documents of officers and representatives of the Company.
We have also assumed the
truth of all facts communicated to us by the Company and that all minutes of meetings of the Board that have been provided to us are true
and accurate and have been properly prepared in accordance with the Articles and all applicable laws. We have assumed, in addition, that
at the time of the execution and delivery of any definitive purchase, underwriting or similar agreement between the Company and any third
party pursuant to which any of the Securities may be issued (a “Securities Agreement”), the Securities Agreement will
be the valid and legally binding obligation of such third party, enforceable against such third party in accordance with its terms. We
have further assumed that at the time of the issuance and sale of any of the Securities, the terms of the Securities, and their issuance
and sale, will have been established so as not to violate any applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company.
Based upon and
subject to the foregoing, we are of the opinion that:
1. | With respect to the Shares, assuming (a) the taking of all necessary corporate action to authorize
and approve the issuance of any Shares, the terms of the offering thereof and related matters (for purposes of this paragraph 1, the
“Authorizing Resolutions”), (b) the effectiveness of the Registration Statement, and any amendments thereto
(including any post-effective amendments), and that such effectiveness shall not have been terminated or rescinded, (c) the delivery
and filing of an appropriate prospectus supplement with respect to the offering of the Shares in compliance with the Securities Act
and the applicable rules and regulations thereunder, (d) approval by the Board of, and entry by the Company into, and performance by
the Company under, any applicable Securities Agreement, in the form filed as an exhibit to the Registration Statement, any
post-effective amendment thereto or to a report on Form 8-K, pursuant to which the Shares may be issued and sold, and (e) receipt by
the Company of the consideration for the Shares as provided for in the Authorizing Resolutions and in accordance with the provisions
of any such Securities Agreement and the applicable convertible Securities, if any, pursuant to which the Shares may be issued, such
Shares, including any Ordinary Shares issued upon exercise or conversion of any Securities, will be validly issued, fully paid and
non-assessable. |
![](https://www.sec.gov/Archives/edgar/data/1600847/000121390023087635/ex5-1_002.jpg)
2. | With respect to the ATM Shares, assuming that prior to the issuance of any of ATM Shares under the
Sales Agreement, the price, number of ATM Shares and certain other terms of issuance with respect to any specific placement notice
delivered under the Sales Agreement will be authorized and approved by the Board or a pricing committee of the Board in accordance
with Israeli law (for purposes of this paragraph 2, the “Authorizing Resolutions”), all corporate proceedings
necessary for the authorization, issuance and delivery of the ATM Shares shall have been taken and, upon issuance pursuant to the
terms of the Sales Agreement and in accordance with resolutions of the Board related to the offering of the ATM Shares, the ATM
Shares will be validly issued, fully paid and non-assessable. |
You have informed us that
you intend to issue the Securities from time to time on a delayed or continuous basis, and this opinion is limited to the laws, including
the rules and regulations, as in effect on the date hereof. We understand that prior to issuing any Securities you will afford us an opportunity
to review the corporate approval documents and operative documents pursuant to which such Securities are to be issued (including the Authorizing
Resolutions, a Securities Agreement (if applicable) and an appropriate prospectus supplement), and we will file such supplement or amendment
to this opinion (if any) as we may reasonably consider necessary or appropriate by reason of the terms of such Securities.
With respect to our opinion
as to the Shares, including any Ordinary Shares issued upon exercise or conversion of any Securities and the ATM Shares, we have assumed
that, at the time of issuance and sale and to the extent any such issuance would exceed the maximum share capital of the Company currently
authorized, the number of Ordinary Shares that the Company is authorized to issue shall have been increased in accordance with the Company’s
Articles and as described in the Registration Statement such that a sufficient number of Ordinary Shares are authorized and available
for issuance under the Articles.
Members of our firm are
admitted to the Bar in the State of Israel, and we do not express any opinion as to the laws of any other jurisdiction. This opinion is
limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated.
We consent to the filing
of this opinion as an exhibit to the Registration Statement and to the reference to our firm appearing under the caption “Legal
Matters” and “Enforcement of Civil Liabilities” in the prospectus forming part of the Registration Statement. In giving
this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities
Act, the rules and regulations of the Commission promulgated thereunder or Item 509 of the Commission’s Regulation S-K under the
Securities Act.
This opinion letter is rendered
as of the date hereof and we disclaim any obligation to advise you of facts, circumstances, events or developments that may be brought
to our attention after the effective date of the Registration Statement that may alter, affect or modify the opinions expressed herein.
|
Very truly yours, |
|
|
|
/s/ Meitar ǀ Law Offices |
|
Meitar ǀ Law Offices |
3
Exhibit 5.2
Josh Kaufman
T: +1 212 479 6495
jkaufman@cooley.com |
|
November 15, 2023
Gamida Cell Ltd.
116 Huntington Avenue
7th Floor
Boston, MA 02116
Ladies and Gentlemen:
We have acted as special U.S. counsel to Gamida
Cell Ltd., a company organized under the laws of the State of Israel (the “Company”), in connection with the
filing by the Company of a Registration Statement on Form S-3 (the “Registration Statement”) with the Securities
and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities
Act”). The Registration Statement includes a base prospectus (the “Base Prospectus”) and provides
that it may be supplemented in the future by one or more prospectus supplements (each, a “Prospectus Supplement”).
The Registration Statement, including the Base Prospectus (as supplemented from time to time by one or more Prospectus Supplements),
provides for the registration by the Company of:
| ● | ordinary shares, par value NIS0.01 per share, of the Company (the “Ordinary Shares”); |
| ● | debt securities, in one or more series (the “Debt Securities”), which may be
issued pursuant to an indenture to be dated on or about the date of the first issuance of Debt Securities thereunder, by and between a
trustee to be selected by the Company (the “Trustee”) and the Company, in the form filed as Exhibit 4.3 to the
Registration Statement and one or more indentures supplemental thereto with respect to any particular series of Debt Securities (the “Indenture”); |
| ● | warrants to purchase of Ordinary Shares or Debt Securities (the “Warrants”),
which may be issued under warrant agreements, to be dated on or about the date of the first issuance of the applicable Warrants
thereunder, by and between a warrant agent to be selected by the Company (the “Warrant Agent”) and the
Company, in the forms filed as Exhibits 4.4 and 4.5 to the Registration Statement (the “Warrant
Agreement”); |
| ● | subscription rights to purchase Ordinary Shares, Debt Securities or Warrants (“Rights”),
which may be issued under rights agreements, to be dated on or about the date of the first issuance of the applicable Rights thereunder,
by and between a rights agent to be selected by the Company (the “Rights Agent”) and the Company, in the form
to be incorporated by reference as an exhibit to the Registration Statement (the “Rights Agreement”); and |
| ● | units comprised of one or more of the other securities of the Company in one or more series (“Units”),
which may be issued under unit agreements, to be dated on or about the date of the first issuance of the applicable Units thereunder,
by and between a unit agent to be selected by the Company (the “Unit Agent”) and the Company, in the form to
be incorporated by reference as an exhibit to the Registration Statement (the “Unit Agreement”). |
The Ordinary Shares, the Debt Securities, the
Warrants, the Rights, and the Units, plus any additional Ordinary Shares, Debt Securities, Warrants, Rights
and Units that may be registered pursuant to any registration statement that the Company may hereafter file with the SEC pursuant to Rule
462(b) under the Securities Act in connection with an offering by the Company pursuant to the Registration Statement, are collectively referred to herein as the “Securities.” The
Securities are being registered for offer and sale from time to time pursuant to Rule 415 under the Securities Act.
Cooley LLP 55 Hudson Yards, New York, NY 10001-2157
t: (212) 479-6000 f: (212) 479-6000 cooley.com
Gamida Cell Ltd.
November 15, 2023
Page Two |
|
In connection with this opinion, we have examined
and relied upon the originals, or copies certified to our satisfaction, of such records, documents, certificates, opinions, memoranda
and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. As to certain
factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.
In rendering this opinion, we have assumed the
legal capacity of all natural persons; the genuineness of all signatures; the authenticity of all documents submitted to us as originals;
the conformity to originals of all documents submitted to us as copies and the authenticity of the originals of such copies; the accuracy,
completeness and authenticity of certificates of public officials; and the due authorization, execution and delivery of all documents
where authorization, execution and delivery are prerequisites to the effectiveness of such documents.
We are not rendering any opinion with respect
to any Ordinary Shares issuable upon the conversion or exercise, as applicable, of any Debt Securities, any Warrants, any Rights or
any Securities that are the components of Units. We have assumed that (i) the Company is validly existing under the laws of the
State of Israel, has the corporate power to enter into and perform its obligations under any Debt Securities, any Indenture, any
Warrants, any Rights and any Units in accordance with their respective terms, (ii) upon issuance, the Company will have duly
authorized, executed and delivered any Debt Securities, any Indenture, any Warrants, any Rights and any Units in accordance with its
organizational documents and the laws of the State of Israel, (iii) any Ordinary Shares issued upon conversion of any Debt
Securities, exercise of any Warrants or Rights or are components of any Units will be duly authorized, validly issued, fully paid
and non-assessable, and (iv) the execution, delivery and performance by the Company of its obligations any Debt Securities, any
Indenture, any Warrants, any Rights or any Units will not violate the laws of the State of Israel or any other applicable laws
(excepting from such assumption the laws of the State of New York).
We have also assumed that with respect to any
Debt Securities issuable upon the exercise of any Warrants or Rights (including as components of Units), the applicable Warrants or Rights
will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as
enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting
creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief including, without
limitation, specific performance.
Our opinion herein is expressed solely with respect
to the laws of the State of New York. Our opinion is based on these laws as in effect on the date hereof. We express no opinion as to
whether the laws of any particular jurisdiction are applicable to the subject matter hereof and express no opinion and provide no assurance
as to compliance with any federal or state law, rule or regulation relating to securities, or to the sale or issuance thereof.
Cooley LLP, 55 Hudson Yards, New York, NY 10001-2157
T: (212) 479-6000 F: (212) 479 6275
Gamida Cell Ltd.
November 15, 2023
Page Three |
|
On the basis of the foregoing and in reliance
thereon, and subject to the qualifications herein stated, we are of the opinion that:
1. With respect to any
series of Debt Securities issued under the Indenture and offered under the Registration Statement, provided that; (i) the Registration
Statement and any required post-effective amendment thereto have become effective under the Securities Act and the Base Prospectus and
any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the
Indenture has been duly authorized by the Company and the Trustee by all necessary corporate action; (iii) the Indenture, in substantially
the form filed as an exhibit to the Registration Statement, has been duly executed and delivered by the Company and the Trustee; (iv)
the terms of the Debt Securities and their issuance and sale, including as to any Ordinary Shares to be issued on the conversion thereof,
have been duly authorized by the Company by all necessary corporate action and the Indenture has been qualified under the Trust Indenture
Act of 1939, as amended; (v) the terms of the Debt Securities and of their issuance and sale have been duly established in conformity
with the Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding
upon the Company, so as to be in conformity with the Company’s then operative articles of association (the “Articles of Association”),
and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company;
and (vi) the notes representing the Debt Securities have been duly executed and delivered by the Company and authenticated by the Trustee
pursuant to the Indenture and delivered against payment therefor, then the Debt Securities, when issued and sold as contemplated in the
Registration Statement, the Base Prospectus and the related Prospectus Supplement(s) and in accordance with the Indenture and a duly
authorized, executed and delivered purchase, underwriting or similar agreement, or upon exercise of any Warrants or Rights in accordance
with their terms, will be valid and legally binding obligations of the Company, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors’ rights generally, and by general equitable principles (regardless
of whether considered in a proceeding at law or in equity).
2. With
respect to the Warrants issued under the Warrant Agreement and offered under the Registration Statement, provided that (i) the Registration
Statement and any required post-effective amendment thereto have become effective under the Securities Act and the Base Prospectus and
any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the Warrant
Agreement has been duly authorized by the Company and the Warrant Agent by all necessary corporate action; (iii) the Warrant Agreement
has been duly executed and delivered by the Company and the Warrant Agent; (iv) the issuance and terms of the Warrants, including as
to any Ordinary Shares or Debt Securities to be issued on the exercise thereof, have been duly authorized by the Company by all necessary
corporate action; (v) the terms of the Warrants and of their issuance and sale have been duly established in conformity with the Warrant
Agreement and as described in the Registration Statement, the Base Prospectus and the related Prospectus Supplement(s), so as not to
violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company, so as to be
in conformity with the Articles of Association, and so as to comply with any requirement or restriction imposed by any court or governmental
body having jurisdiction over the Company; and (vi) the Warrants have been duly executed and delivered by the Company and authenticated
by the Warrant Agent pursuant to the Warrant Agreement and delivered against payment therefor, then the Warrants, when issued and sold
as contemplated in the Registration Statement, the Base Prospectus and the Prospectus Supplement(s) and in accordance with the Warrant
Agreement and a duly authorized, executed and delivered purchase, underwriting or similar agreement, will be valid and legally binding
obligations of the Company, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors’ rights generally, and by general equitable principles (regardless of whether considered in a proceeding
at law or in equity).
3. With
respect to the Rights issued under the Rights Agreement and offered under the Registration Statement, provided that (i) the Registration
Statement and any required post-effective amendment thereto have become effective under the Securities Act and the Base Prospectus and
any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the Rights
Agreement has been duly authorized by the Company and the Rights Agent by all necessary corporate action; (iii) the Rights Agreement has
been duly executed and delivered by the Company and the Rights Agent; (iv) the issuance and terms of the Rights, including as to any Ordinary
Shares, Debt Securities or Warrants to be issued on the exercise thereof, have been duly authorized by the Company by all necessary corporate
action; (v) the terms of the Rights and of their issuance and sale have been duly established in conformity with the Rights Agreement
and as described in the Registration Statement, the Base Prospectus and the related Prospectus Supplement(s), so as not to violate any
applicable law or result in a default under or breach of any agreement or instrument binding upon the Company, so as to be in conformity
with the Articles of Association, and so as to comply with any requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company; and (vi) the Rights have been duly executed and delivered by the Company and authenticated by the Rights
Agent pursuant to the Rights Agreement and delivered against payment therefor, then the Rights, when issued and sold as contemplated in
the Registration Statement, the Base Prospectus and the Prospectus Supplement(s) and in accordance with the Rights Agreement and a duly
authorized, executed and delivered purchase, underwriting or similar agreement, will be valid and legally binding obligations of the Company,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’
rights generally, and by general equitable principles (regardless of whether considered in a proceeding at law or in equity).
Cooley LLP, 55 Hudson Yards, New York, NY 10001-2157
T: (212) 479-6000 F: (212) 479 6275
Gamida Cell Ltd.
November 15, 2023
Page Four |
|
4. With
respect to the Units issued under the Unit Agreement and offered under the Registration Statement, provided that (i) the Registration
Statement and any required post-effective amendment thereto have become effective under the Securities Act and the Base Prospectus and
any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the
Unit Agreement has been duly authorized by the Company and the Unit Agent by all necessary corporate action; (iii) the Unit Agreement
has been duly executed and delivered by the Company and the Unit Agent; (iv) the issuance and terms of the Units, including as to
any Ordinary Shares, Debt Securities, Warrants or Rights that are components of such Units, have been duly authorized by the Company by
all necessary corporate action; (v) the terms of the Units, including as to any Ordinary Shares, Debt Securities, Warrants or Rights
that are components of such Units, and of their issuance and sale have been duly established in conformity with the Unit Agreement and
as described in the Registration Statement, the Base Prospectus and the related Prospectus Supplement(s), so as not to violate any applicable
law or result in a default under or breach of any agreement or instrument binding upon the Company, so as to be in conformity with the
Articles of Association, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction
over the Company; and (vi) the Units, including as to any Ordinary Shares, Debt Securities, Warrants or Rights that are components
of such Units, have been duly executed and delivered by the Company and authenticated by the Unit Agent pursuant to the Unit Agreement
and delivered against payment therefor, then the Units, when issued and sold as contemplated in the Registration Statement, the Base Prospectus
and the Prospectus Supplement(s) and in accordance with the Unit Agreement and a duly authorized, executed and delivered purchase,
underwriting or similar agreement, will be valid and legally binding obligations of the Company, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally, and by general
equitable principles (regardless of whether considered in a proceeding at law or in equity).
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement and to the reference to our firm under the caption “Legal Matters” in the Base
Prospectus. We further consent to the incorporation by reference of this opinion into any registration statement filed pursuant to Rule
462(b) under the Securities Act with respect to additional Securities. In giving such consents, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Commission thereunder.
Our opinion set forth above is limited to the
matters expressly set forth in this letter, and no opinion is implied or may be inferred beyond the matters expressly stated. This opinion
speaks only as to law and facts in effect or existing as of the date hereof, and we undertake no obligation or responsibility to update
or supplement this opinion to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may
hereafter occur.
Sincerely,
Cooley LLP |
|
|
|
By: |
/s/ Josh Kaufman |
|
|
Josh Kaufman |
|
Cooley LLP, 55 Hudson Yards, New York, NY 10001-2157
T: (212) 479-6000 F: (212) 479 6275
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
We consent to the reference to our firm under
caption “Experts” in the Registration Statement (Form S-3) and related Prospectus of Gamida Cell Ltd. for the registration of
ordinary shares, debt, warrants, rights or units and to the incorporation by reference therein of our report dated March 31, 2023 (which
contain an explanatory paragraph describing conditions that raise substantial doubt about the Company’s ability to continue as a
going concern as described in the notes to the consolidated financial statements), with respect to the consolidated financial statements
of Gamida Cell Ltd., included in its Annual Report (Form 10-K) for the year ended December 31, 2022, filed with the Securities and Exchange
Commission.
/s/ Kost Forer Gabbay & Kasierer |
|
Kost Forer Gabbay & Kasierer |
|
A Member of Ernst & Young Global |
|
|
|
November 15, 2023 |
|
Tel-Aviv, Israel |
|
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
GAMIDA CELL LTD.
(Exact name of Registrant as specified in its
charter)
Table 1: Newly Registered and Carry Forward
Securities
| |
Security
Type | |
Security Class
Title | |
Fee
Calculation
or Carry
Forward
Rule | |
Amount
Registered | | |
Proposed
Maximum
Offering
Price Per
Unit | | |
Maximum
Aggregate
Offering Price | | |
Fee
Rate | | |
Amount
of
Registration
Fee | | |
Carry
Forward
Form
Type | |
Carry
Forward
File Number | |
Carry
Forward
Initial
Effective
Date | |
Filing
Fee
Previously
Paid In Connection
with Unsold
Securities to
be Carried
Forward | |
Newly
Registered Securities | |
Fees
to Be Paid | |
Equity | |
Ordinary shares, par value NIS 0.01 per share (1) | |
Rule
457(o) | |
| (2) | | |
| (3) | | |
| (3) | | |
| — | | |
| — | | |
| |
| |
| |
| | |
| |
Debt | |
Debt
Securities(1) | |
Rule
457(o) | |
| (2) | | |
| (3) | | |
| (3) | | |
| — | | |
| — | | |
| |
| |
| |
| | |
| |
Other | |
Warrants(1) | |
Rule
457(o) | |
| (2) | | |
| (3) | | |
| (3) | | |
| — | | |
| — | | |
| |
| |
| |
| | |
| |
Other | |
Rights(1) | |
Rule
457(o) | |
| (2) | | |
| (3) | | |
| (3) | | |
| — | | |
| — | | |
| |
| |
| |
| | |
| |
Other | |
Units(1) | |
Rule
457(o) | |
| (2) | | |
| (3) | | |
| (3) | | |
| — | | |
| — | | |
| |
| |
| |
| | |
| |
Unallocated (Universal) Shelf | |
— | |
Rule
457(o) | |
| (2) | | |
| (3) | | |
$ | 116,377,750.00 | | |
| 0.0001476 | | |
| $22,140(4) | | |
| |
| |
| |
| | |
Carry
Forward Securities | |
Carry
Forward Securities | |
Equity | |
Ordinary
shares, par value NIS 0.01 per share | |
Rule
415 (a)(6) | |
| | | |
| | | |
| | | |
| | | |
| | | |
| |
| |
| |
| | |
| |
Debt | |
Debt
Securities | |
Rule
415 (a)(6) | |
| | | |
| | | |
| | | |
| | | |
| | | |
| |
| |
| |
| | |
| |
Other | |
Warrants | |
Rule
415 (a)(6) | |
| | | |
| | | |
| | | |
| | | |
| | | |
| |
| |
| |
| | |
| |
Other | |
Rights | |
Rule
415 (a)(6) | |
| | | |
| | | |
| | | |
| | | |
| | | |
| |
| |
| |
| | |
| |
Other | |
Units | |
Rule
415 (a)(6) | |
| | | |
| | | |
| | | |
| | | |
| | | |
| |
| |
| |
| | |
| |
Unallocated
(Universal) Shelf | |
— | |
Rule
415 (a)(6) | |
| (5) | | |
| | | |
$ | 33,622,250.00 | | |
| | | |
| | | |
F-3 | |
333-259472 | |
09/13/2021 | |
$ | 3,668.19 | |
| |
Total
Offering Amounts | | |
| | | |
$ | 150,000,000.00 | | |
| | | |
$ | 22,140.00 | | |
| |
| |
| |
| | |
| |
Total
Fees Previously Paid | | |
| | | |
| | | |
| | | |
$ | 3,688.19 | | |
| |
| |
| |
| | |
| |
Total
Fee Offsets | | |
| | | |
| | | |
| | | |
| N/A | | |
| |
| |
| |
| | |
| |
Net
Fee Due | | |
| | | |
| | | |
| | | |
$ | 18,451.81 | | |
| |
| |
| |
| | |
(1) | Separate consideration may or may not be received for securities that are issuable upon the conversion or exercise of, or in exchange
for, other securities offered hereby. |
(2) | There are being registered hereunder such indeterminate number of the securities of each identified class being registered as may
be sold by the registrant from time to time at indeterminate prices, with the maximum aggregate public offering price not to exceed $150
million. Any securities registered hereunder may be sold separately or together with other securities registered hereunder. |
(3) | The proposed maximum per security and aggregate offering prices per class of securities will be determined from time to time by the
Registrant in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class
of security pursuant to Instruction 2.A.iii.b of the Instructions to the Calculation of Filing Fee Tables and related disclosure on Form
S-3. |
(4) | Calculated pursuant to Rule 457(o) under the Securities Act. |
(5) | Pursuant to Rule 415(a)(6) under the Securities Act, the Registrant is applying filing fees of $3,668.19 relating to $33,622,250.00
of unsold securities registered pursuant to its Registration Statement on Form F-3, originally filed by the Registrant on September 13,
2021, amended by Post-Effective Amendment No. 1 to Form F-3 on Form S-3 Registration Statement on March 25, 2022 and declared effective
on April 1, 2022, to partially offset the registration fee of $22,140 that would otherwise be due in connection with this registration
statement. As a result, $18,451.81 is being remitted herewith. |
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