VERASTEM, INC. and WILMINGTON TRUST, NATIONAL ASSOCIATION as Trustee and Collateral Agent
Exhibit 4.1
and
WILMINGTON TRUST, NATIONAL ASSOCIATION
as Trustee and Collateral Agent
Dated as of November 14, 2019
5.00% Convertible Senior Second Lien Notes due 2048
TABLE OF CONTENTS
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Article 1. Definitions; Rules of Construction |
1 |
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Section 1.01. Definitions. |
1 |
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Section 1.02. Other Definitions. |
12 |
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Section 1.03. Rules of Construction. |
13 |
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Article 2. The Notes |
14 |
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Section 2.01. Form, Dating and Denominations. |
14 |
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Section 2.02. Initial Notes and Additional Notes; Execution and Authentication. |
14 |
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Section 2.03. Method of Payment. |
15 |
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Section 2.04. Accrual of Interest; Defaulted Amounts; When Payment Date is Not a Business Day. |
16 |
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Section 2.05. Registrar, Paying Agent and Conversion Agent. |
17 |
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Section 2.06. Paying Agent and Conversion Agent to Hold Property in Trust. |
17 |
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Section 2.07. Legends. |
18 |
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Section 2.08. Transfers and Exchanges. |
18 |
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Section 2.09. Exchange and Cancellation of Notes to Be Converted, Redeemed or Repurchased. |
22 |
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Section 2.10. Registered Holders; Certain Rights with Respect to Global Notes. |
23 |
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Section 2.11. Notes Held by the Company or its Affiliates. |
23 |
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Section 2.12. Temporary Notes. |
24 |
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Section 2.13. Outstanding Notes. |
24 |
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Section 2.14. Repurchases by the Company. |
25 |
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Section 2.15. Cancellation. |
25 |
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Section 2.16. Replacement Notes. |
25 |
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Section 2.17. CUSIP and ISIN Numbers. |
26 |
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Section 2.18. Holder Lists. |
26 |
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Article 3. Covenants |
26 |
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Section 3.01. Payment on Notes. |
26 |
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Section 3.02. Exchange Act Reports. |
26 |
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Section 3.03. Restriction on Acquisition of Notes by the Company and its Affiliates. |
27 |
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Section 3.04. Further Instruments and Acts. |
27 |
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Section 3.05. Compliance Certificates. |
27 |
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Section 3.06. Stay, Extension and Usury Laws. |
28 |
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Section 3.07. Secured Indebtedness. |
28 |
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Article 4. Repurchase and Redemption |
28 |
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Section 4.01. No Sinking Fund. |
28 |
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Section 4.02. Right of Holders to Require the Company to Repurchase Notes upon a Fundamental Change. |
28 |
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Section 4.03. Right of Holders to Require the Company to Repurchase Notes on the Optional Repurchase Dates. |
32 |
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Section 4.04. Right of the Company to Redeem the Notes. |
36 |
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Article 5. Conversion |
38 |
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Section 5.01. Right to Convert. |
38 |
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Section 5.02. Conversion Procedures. |
39 |
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Section 5.03. Settlement upon Conversion. |
39 |
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Section 5.04. Company’s Mandatory Conversion Option. |
41 |
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Section 5.05. Reserve and Status of Common Stock Issued upon Conversion. |
42 |
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Section 5.06. Adjustments to the Conversion Rate. |
43 |
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Section 5.07. Voluntary Adjustments. |
52 |
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Section 5.08. Adjustments to the Conversion Rate in Connection with a Make-Whole Fundamental Change. |
52 |
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Section 5.09. Effect of Common Stock Change Event. |
54 |
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Section 5.10. Responsibility of the Trustee. |
55 |
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Section 5.11. Limits Upon Issuance of Shares of Common Stock Upon Conversion. |
56 |
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Article 6. Successors |
58 |
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Section 6.01. When the Company May Merge, Etc. |
58 |
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Section 6.02. Successor Corporation Substituted. |
58 |
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Article 7. Defaults and Remedies |
59 |
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Section 7.01. Events of Default. |
59 |
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Section 7.02. Acceleration. |
61 |
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Section 7.03. Sole Remedy for a Failure to Report. |
61 |
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Section 7.04. Other Remedies. |
62 |
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Section 7.05. Waiver of Past Defaults. |
63 |
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Section 7.06. Control by Majority. |
63 |
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Section 7.07. Limitation on Suits. |
63 |
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Section 7.08. Absolute Right of Holders to Receive Payment and Conversion Consideration. |
64 |
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Section 7.09. Collection Suit by Trustee. |
64 |
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Section 7.10. Trustee May File Proofs of Claim. |
64 |
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Section 7.11. Priorities. |
65 |
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Section 7.12. Undertaking for Costs. |
65 |
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Article 8. Trustee |
65 |
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Section 8.01. Duties of Trustee. |
65 |
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Section 8.02. Rights of Trustee. |
67 |
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Section 8.03. Individual Rights of Trustee. |
68 |
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Section 8.04. Trustee’s Disclaimer. |
68 |
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Section 8.05. Notice of Default. |
68 |
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Section 8.06. Reserved. |
68 |
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Section 8.07. Compensation and Indemnity. |
68 |
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Section 8.08. Replacement of Trustee. |
69 |
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Section 8.09. Successor Trustee by Consolidation, Merger or Conversion. |
70 |
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Section 8.10. Eligibility; Disqualification. |
70 |
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Section 8.11. Reserved. |
71 |
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Section 8.12. Paying Agents. |
71 |
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Section 8.13. Trustee in Other Capacities. |
71 |
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Article 9. Amendments, Supplements and Waivers |
72 |
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Section 9.01. Without the Consent of Holders. |
72 |
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Section 9.02. With the Consent of Holders. |
72 |
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Section 9.03. Notice of Amendments, Supplements and Waivers. |
74 |
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Section 9.04. Revocation, Effect and Solicitation of Consents; Special Record Dates; Etc. |
74 |
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Section 9.05. Notations and Exchanges. |
74 |
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Section 9.06. Trustee and the Collateral Agent to Execute Supplemental Indentures. |
75 |
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Article 10. Satisfaction and Discharge; Defeasance of Certain Covenants |
75 |
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Section 10.01. Termination of Company’s Obligations. |
75 |
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Section 10.02. Repayment to Company. |
76 |
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Section 10.03. Reinstatement. |
76 |
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Section 10.04. Defeasance of Restrictive Covenants. |
76 |
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Article 11. Collateral and Security |
78 |
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Section 11.01. Grant of Security Interest |
78 |
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Section 11.02. Release of Collateral |
79 |
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Section 11.03. [Reserved]. |
81 |
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Section 11.04. [Reserved]. |
81 |
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Section 11.05. [Reserved]. |
81 |
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Section 11.06. Purchaser Protected |
81 |
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Section 11.07. Authorization of Actions to Be Taken by the Collateral Agent Hereunder |
81 |
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Section 11.08. Authorization of Receipt of Funds by the Trustee Hereunder |
82 |
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Section 11.09. Intercreditor Agreement |
82 |
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Section 11.10. Further Assurances. |
82 |
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Section 11.11. Concerning the Collateral Agent. |
83 |
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Section 11.12. Remedies. |
84 |
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Article 12. Miscellaneous |
86 |
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Section 12.01. Notices. |
86 |
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Section 12.02. No Personal Liability of Directors, Officers, Employees and Stockholders. |
87 |
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Section 12.03. Governing Law; Waiver of Jury Trial. |
87 |
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Section 12.04. Submission to Jurisdiction. |
87 |
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Section 12.05. Certificate and Opinion as To Conditions Precedent. |
88 |
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Section 12.06. Statement Required in Certificate and Opinion. |
88 |
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Section 12.07. No Adverse Interpretation of Other Agreements. |
88 |
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Section 12.08. Successors. |
88 |
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Section 12.09. Force Majeure. |
89 |
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Section 12.10. U.S.A. Patriot Act. |
89 |
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Section 12.11. Calculations. |
89 |
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Section 12.12. Severability. |
89 |
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Section 12.13. Counterparts. |
89 |
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Section 12.14. Table of Contents, Headings, Etc. |
90 |
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Section 12.15. Withholding Taxes. |
90 |
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Section 12.16. Intercreditor Agreement |
90 |
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Section 12.17. Rules by Trustee. |
90 |
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Exhibits |
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Exhibit A: Form of Note |
A-1 |
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Exhibit B: Form of Global Note Legend |
B-1 |
INDENTURE, dated as of November 14, 2019 (this “Indenture”), between Verastem, Inc., a Delaware corporation, as issuer (the “Company”), and Wilmington Trust, National Association, a national banking association, as trustee (in such capacity, the “Trustee”) and as collateral agent (in such capacity, the “Collateral Agent”).
Each party to this Indenture agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders (as defined below) of the Company’s 5.00% Convertible Senior Second Lien Notes due 2048 (the “Notes”).
The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto will have the respective meanings specified in this Section 1.01. All words, terms and phrases defined in the UCC (but not otherwise defined herein) have the same meanings as in the UCC.
“Affiliate” has the meaning set forth in Rule 144 under the Securities Act as in effect on the Issue Date.
“Agent” means any Registrar, Paying Agent, co-registrar or agent for service of notices and demands.
“Authorized Denomination” means, with respect to a Note, a principal amount thereof equal to $1,000 or any integral multiple of $1,000 in excess thereof.
“Bankruptcy Law” means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar U.S. federal or state or non-U.S. law for the relief of debtors.
“Board of Directors” means the board of directors of the Company or a committee of such board duly authorized to act on behalf of such board.
“Business Day” means any day other than a Saturday, a Sunday or any day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.
“Capital Stock” of any Person means any and all shares of, interests in, rights to purchase, warrants or options for, participations in, or other equivalents of, in each case however designated, the equity of such Person, but excluding any debt securities convertible into such equity.
“Close of Business” means 5:00 p.m., New York City time.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral Agent” means the Person named as such in the first paragraph of this Indenture until a successor replaces it in accordance with the provisions of this Indenture and, thereafter,
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means such successor.
“Common Stock” means the common stock, $0.0001 par value per share, of the Company, subject to Section 5.09.
“Company” means the Person named as such in the first paragraph of this Indenture and, subject to Article 6, its successors and assigns.
“Company Mandatory Conversion Right” means the right of the Company to cause Notes to be converted pursuant to Section 5.04(A).
“Company Order” means a written order signed in the name of the Company by two Officers, one of whom must be its Chief Executive Officer, Chief Operating Officer, Chief Financial Officer or other officer with equivalent duties.
“Conversion Date” means, with respect to a Note, the first Business Day on which the requirements set forth in Section 5.02(A) to convert such Note are satisfied.
“Conversion Price” means, as of any time, an amount equal to (A) one thousand dollars ($1,000) divided by (B) the Conversion Rate in effect at such time.
“Conversion Rate” initially means 606.0606 shares of Common Stock per $1,000 principal amount of Notes; provided, however, that the Conversion Rate is subject to adjustment pursuant to Article 5; provided, further, that whenever this Indenture refers to the Conversion Rate as of a particular date without setting forth a particular time on such date, such reference will be deemed to be to the Conversion Rate immediately after the Close of Business on such date.
“Conversion Share” means any share of Common Stock issued or issuable upon conversion of any Note.
“Copyright License” means any written agreement granting any right to use any Copyright or Copyright registration, now owned or hereafter acquired by the Company or in which the Company now holds or hereafter acquires any interest.
“Copyrights” means all copyrights, whether registered or unregistered, held pursuant to the laws of the United States of America, any State thereof, or of any other country.
“Covenant Defeasance” means any defeasance pursuant to, and subject to the terms of, Section 10.04.
“Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Daily VWAP” means, for any VWAP Trading Day, the per share volume-weighted average price of the Common Stock as displayed under the heading “Bloomberg VWAP” on Bloomberg page “VSTM <EQUITY> AQR” (or, if such page is not available, its equivalent successor page) in respect of the period from the scheduled open of trading until the scheduled
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close of trading of the primary trading session on such VWAP Trading Day (or, if such volume-weighted average price is unavailable, the market value of one (1) share of Common Stock on such VWAP Trading Day, determined, using a volume-weighted average price method, by a nationally recognized independent investment banking firm the Company selects). The Daily VWAP will be determined without regard to after-hours trading or any other trading outside of the regular trading session.
“Default” means any event that is, or that with the passing of time or giving of notice or both would be, an Event of Default.
“Deposit Accounts” means any “deposit accounts,” as such term is defined in the UCC, and includes any checking account, savings account, or certificate of deposit.
“Depositary” means The Depository Trust Company or its successor.
“Depositary Participant” means any member of, or participant in, the Depositary.
“Depositary Procedures” means, with respect to any conversion, transfer, exchange or transaction involving a Global Note or any beneficial interest therein, the rules and procedures of the Depositary applicable to such conversion, transfer, exchange or transaction.
“Designated Foreign Subsidiary” means any Foreign Subsidiary, individually, and in the aggregate with other Foreign Subsidiaries, which owns personal property and assets, in each case determined as of the most recent fiscal year end, in an amount less than ten percent (10.0%) of all of the personal property and assets of the Company.
“Domestic Subsidiary” means any Subsidiary that is not a Foreign Subsidiary.
“Eligible Foreign Subsidiary” means any Foreign Subsidiary (which is not a Designated Foreign Subsidiary) who becomes a party to the Senior Credit Agreement after the Issue Date.
“Eligible Market” means any of The New York Stock Exchange, The Nasdaq Global Market or The Nasdaq Global Select Market (or any of their respective successors).
“Ex-Dividend Date” means, with respect to an issuance, dividend or distribution on the Common Stock, the first date on which shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive such issuance, dividend or distribution (including pursuant to due bills or similar arrangements required by the relevant stock exchange). For the avoidance of doubt, any alternative trading convention on the applicable exchange or market in respect of the Common Stock under a separate ticker symbol or CUSIP number will not be considered “regular way” for this purpose.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Excluded Account” means (i) any Account (including, for the avoidance of doubt, any cash, cash equivalents, or other property contained therein) to the extent, and for so long as, such Account is pledged and used exclusively to secure performance of obligations arising under clauses
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(vi) and (xiv) of the defined term “Permitted Liens” in the Senior Credit Agreement, and whether such pledge is by escrow or otherwise, (ii) accounts used solely to fund payroll or employee benefits, (iii) withholding tax, benefits, trust, escrow, or fiduciary accounts, (iv) other Accounts that have an aggregate balance not to exceed One Hundred Thousand Dollars ($100,000.00) for all such Accounts at any time and (v) deposit, securities, commodity or similar accounts in jurisdictions outside the United States of America that have an aggregate balance not to exceed One Hundred Thousand Dollars ($100,000.00) for all such accounts at any time.
“Foreign Subsidiary” means any Subsidiary that is not a “United States person” within the meaning of Section 7701(a)(3) of the Code.
“Foreign Subsidiary HoldCo” means any (a) Domestic Subsidiary substantially all the assets of which consist, directly or indirectly, of equity interests (or equity interests and indebtedness) of one or more Foreign Subsidiaries that are treated as a controlled foreign corporation within the meaning of Section 957 of the Code, or (b) Subsidiary that is disregarded for U.S. federal income tax purposes and substantially all the assets of which consist, directly or indirectly, of equity interests (or equity interests and indebtedness) of one or more Foreign Subsidiaries that are treated as a controlled foreign corporation within the meaning of Section 957 of the Code.
“Fundamental Change” means any of the following events:
(A)a “person” or “group” (within the meaning of Section 13(d)(3) of the Exchange Act), other than the Company or its Wholly Owned Subsidiaries, or any employee benefit plan of the Company or its Wholly Owned Subsidiaries, has become the direct or indirect “beneficial owner” (as defined below) of shares of the Company’s common equity representing more than fifty percent (50%) of the voting power of all of the Company’s then-outstanding common equity;
(B)the consummation of (i) any sale, lease or other transfer, in one transaction or a series of transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person, other than solely to one or more of the Company’s Wholly Owned Subsidiaries; or (ii) any transaction or series of related transactions in connection with which (whether by means of merger, consolidation, share exchange, combination, reclassification, recapitalization, acquisition, liquidation or otherwise) all of the Common Stock is exchanged for, converted into, acquired for, or constitutes solely the right to receive, other securities, cash or other property; provided, however, that any merger, consolidation, share exchange or combination of the Company pursuant to which the Persons that directly or indirectly “beneficially owned” (as defined below) all classes of the Company’s common equity immediately before such transaction directly or indirectly “beneficially own,” immediately after such transaction, more than fifty percent (50%) of all classes of common equity of the surviving, continuing or acquiring company or other transferee, as applicable, or the parent thereof, in substantially the same proportions vis-à-vis each other as immediately before such transaction will be deemed not to be a Fundamental Change pursuant to this clause (B);
(C)the Company’s stockholders approve any plan or proposal for the liquidation or dissolution of the Company; or
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(D)the Common Stock ceases to be listed on any of The New York Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select Market (or any of their respective successors);
provided, however, that a transaction or event described in clause (A) or (B) above will not constitute a Fundamental Change if at least ninety percent (90%) of the consideration received or to be received by the holders of Common Stock (excluding cash payments for fractional shares or pursuant to dissenters rights), in connection with such transaction or event, consists of shares of common stock listed on any of The New York Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select Market (or any of their respective successors), or that will be so listed when issued or exchanged in connection with such transaction or event, and such transaction or event constitutes a Common Stock Change Event whose Reference Property consists of such consideration.
For the purposes of this definition, (x) any transaction or event described in both clause (A) and in clause (B)(i) or (ii) above (without regard to the proviso in clause (B)) will be deemed to occur solely pursuant to clause (b) above (subject to such proviso); and (y) whether a Person is a “beneficial owner” and whether shares are “beneficially owned” will be determined in accordance with Rule 13d-3 under the Exchange Act.
“Fundamental Change Repurchase Date” means the date fixed for the repurchase of any Notes by the Company pursuant to a Repurchase Upon Fundamental Change.
“Fundamental Change Repurchase Notice” means a notice (including a notice substantially in the form of the “Fundamental Change Repurchase Notice” set forth in Exhibit A) containing the information, or otherwise complying with the requirements, set forth in Section 4.02(F)(i) and Section 4.02(F)(ii).
“Fundamental Change Repurchase Price” means the cash price payable by the Company to repurchase any Note upon its Repurchase Upon Fundamental Change, calculated pursuant to Section 4.02(D).
“Global Note” means a Note that is represented by a certificate substantially in the form set forth in Exhibit A, registered in the name of the Depositary or its nominee, duly executed by the Company and authenticated by the Trustee, and deposited with the Trustee, as custodian for the Depositary.
“Global Note Legend” means a legend substantially in the form set forth in Exhibit B.
“Holder” means a person in whose name a Note is registered on the Registrar’s books.
“Intellectual Property” means all of the Company’s Copyrights; Trademarks; Patents; Licenses; trade secrets and inventions; mask works; the Company’s applications therefor and reissues, extensions, or renewals thereof; and the Company’s goodwill associated with any of the foregoing, together with the Company’s rights to xxx for past, present and future infringement of Intellectual Property and the goodwill associated therewith.
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“Intercreditor Agreement” means that certain intercreditor agreement, dated as of the Issue Date, by and among the Senior Credit Agreement Agent and the Collateral Agent, as the same may be amended, modified, restated, supplemented or replaced from time to time in accordance with its terms.
“Interest Make-Whole” means, with respect to the conversion of any Note, the sum of all regularly scheduled Stated Interest payments, if any, due on such Note on each Interest Payment Date occurring after the Conversion Date for such conversion and on or before November 1, 2020 (or, if November 1, 2020 is not a Business Day, the next Business Day); provided, however, that (A) for these purposes, the amount of Stated Interest due on the Interest Payment Date immediately after such Conversion Date will be deemed to be the following amount: (x) if such Conversion Date is after the Regular Record Date for such Interest Payment Date, zero (and, for the avoidance of doubt, interest due on such Interest Payment Date will be paid to the Holder of such Note as of the Close of Business on such Regular Record Date); and (y) in all other cases, the full amount of Stated Interest due on such Note on the Interest Payment Date immediately after such Conversion Date, less an amount equal to the Stated Interest that has accrued on such Note to, but excluding, the date the Company settles such conversion (it being understood, for the avoidance of doubt, that such accrued interest will paid pursuant to Section 5.03(A)(i)(1)); (B) if such Conversion Date is after November 1, 2020 (or, if November 1, 2020 is not a Business Day, the next Business Day), then the Interest Make-Whole for such conversion will be zero; and (C) if such Conversion Date occurs after the Company has sent a Mandatory Conversion Notice, then the Interest Make-Whole for such conversion will be zero.
“Interest Payment Date” means, with respect to a Note, each May 1 and November 1 of each year, commencing on May 1, 2020 (or such other date specified in the certificate representing such Note). For the avoidance of doubt the Maturity Date is an Interest Payment Date.
“Inventory” means “inventory” as defined in Article 9 of the UCC.
“Issue Date” means November 14, 2019.
“Last Reported Sale Price” of the Common Stock for any Trading Day means the closing sale price per share (or, if no closing sale price is reported, the average of the last bid price and the last ask price per share or, if more than one in either case, the average of the average last bid prices and the average last ask prices per share) of Common Stock on such Trading Day as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is then listed. If the Common Stock is not listed on a U.S. national or regional securities exchange on such Trading Day, then the Last Reported Sale Price will be the last quoted bid price per share of Common Stock on such Trading Day in the over-the-counter market as reported by OTC Markets Group Inc. or a similar organization. If the Common Stock is not so quoted on such Trading Day, then the Last Reported Sale Price will be the average of the mid-point of the last bid price and the last ask price per share of Common Stock on such Trading Day from each of at least three (3) nationally recognized independent investment banking firms selected by the Company. Neither the Trustee nor the Conversion Agent will have any duty to determine the Last Reported Sale Price.
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“License” means any Copyright License, Patent License, Trademark License or other license of rights or interests.
“Lien” means, with respect to any property or assets of any Person, any mortgage or deed of trust, pledge, hypothecation, assignment, deposit arrangement, security interest, lien, charge, easement, encumbrance, preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever on or with respect to such property or assets (including, without limitation, any capitalized lease obligation, conditional sales or other title retention agreement having substantially the same economic effect as any of the foregoing).
“Make-Whole Fundamental Change” means a Fundamental Change (determined after giving effect to the proviso immediately after clause (D) of the definition thereof, but without regard to the proviso to clause (B)(ii) of the definition thereof) that becomes effective on or before November 1, 2022.
“Make-Whole Fundamental Change Conversion Period” means, with respect to a Make-Whole Fundamental Change, the period from, and including, the effective date of such Make-Whole Fundamental Change to, and including, the thirty fifth (35th) Trading Day after such effective date (or, if such Make-Whole Fundamental Change also constitutes a Fundamental Change, to, but excluding, the related Fundamental Change Repurchase Date).
“Mandatory Conversion” means a conversion pursuant to Section 5.04(A).
“Mandatory Conversion Date” means the Conversion Date for a Mandatory Conversion, as provided in Section 5.04(C).
“Market Disruption Event” means, with respect to any date, the occurrence or existence, during the one-half hour period ending at the scheduled close of trading on such date on the principal U.S. national or regional securities exchange or other market on which the Common Stock is listed for trading or trades, of any material suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Common Stock or in any options, contracts or futures contracts relating to the Common Stock.
“Maturity Date” means November 1, 2048.
“Note Agent” means any Registrar, Paying Agent or Conversion Agent.
“Notes” means the 5.00% Convertible Senior Second Lien Notes due 2048 issued by the Company pursuant to this Indenture.
“Notes Secured Parties” means, collectively, (a) the Trustee, (b) the Collateral Agent, (c) the Agents, (d) the Holders of the Notes, (e) each other Person to whom any Obligations are owed and (f) the successors, replacements and assigns of each of the foregoing; sometimes being referred to herein individually as a “Notes Secured Party.”
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“Obligations” means all obligations of the Company owing pursuant to this Indenture and the Notes for principal, interest (including any interest accruing on or subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or foreign law), premium, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and banker’s acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under this Indenture and the Notes.
“Officer” means the Chief Executive Officer, the President, any Vice President, the Chief Accounting Officer, the Chief Operating Officer, the Treasurer or the Secretary of the Company, or any other officer designated by the Board of Directors, as the case may be.
“Officer’s Certificate” means, with respect to any Person, a certificate signed by the Chairman, Chief Executive Officer, President or any Senior or Executive Vice President, Chief Operating Officer, Chief Financial Officer or any Treasurer of such Person, that will comply with applicable provisions of this Indenture.
“Open of Business” means 9:00 a.m., New York City time.
“Opinion of Counsel” means a written opinion from legal counsel, which counsel is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Company.
“Optional Repurchase” means the repurchase of any Note by the Company pursuant to Section 4.03.
“Optional Repurchase Notice” means a notice (including a notice substantially in the form of the “Optional Repurchase Notice” set forth in Exhibit A) containing the information, or otherwise complying with the requirements, set forth in Section 4.03(E)(i) and Section 4.03(E)(ii).
“Optional Repurchase Price” means the cash price payable by the Company to repurchase any Note upon an Optional Repurchase, calculated pursuant to Section 4.03(C).
“Patent License” means any written agreement granting any right with respect to any invention on which a Patent is in existence or a Patent application is pending, in which agreement the Company now holds or hereafter acquires any interest.
“Patents” means all letters patent of, or rights corresponding thereto, in the United States of America or in any other country, all registrations and recordings thereof, and all applications for letters patent of, or rights corresponding thereto, in the United States of America or any other country.
“Person” or “person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof.
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“Physical Note” means a Note (other than a Global Note) that is represented by a certificate substantially in the form set forth in Exhibit A, not bearing the Global Note Legend, registered in the name of the Holder of such Note and duly executed by the Company and authenticated by the Trustee.
“Receivables” means (i) all of the Company’s Accounts, Instruments, Documents, Chattel Paper, Supporting Obligations, letters of credit, proceeds of any letter of credit, and Letter of Credit Rights, and (ii) all customer lists, software, and business records related thereto.
“Redemption” means the repurchase of any Note by the Company pursuant to Section 4.04.
“Redemption Date” means the date fixed for the repurchase of any Notes by the Company pursuant to a Redemption.
“Redemption Notice Date” means, with respect to a Redemption, the date on which the Company sends the Redemption Notice for such Redemption pursuant to Section 4.04(F).
“Redemption Price” means the cash price payable by the Company to redeem any Note upon its Redemption, calculated pursuant to Section 4.04(E).
“Regular Record Date” has the following meaning with respect to an Interest Payment Date: (A) if such Interest Payment Date occurs on May 1, the immediately preceding April 15; and (B) if such Interest Payment Date occurs on November 1, the immediately preceding October 15.
“Repurchase Upon Fundamental Change” means the repurchase of any Note by the Company pursuant to Section 4.02.
“Responsible Officer” means, when used with respect to the Trustee or the Collateral Agent, as applicable, any officer within the corporate trust department of the Trustee or the Collateral Agent, as applicable (or any successor group of the Trustee or the Collateral Agent, as applicable) or any other officer of the Trustee or the Collateral Agent, as applicable, 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 relating to this Indenture, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject, who in each case, will have primary responsibility for the administration of this Indenture.
“Scheduled Trading Day” means any day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded. If the Common Stock is not so listed or traded, then “Scheduled Trading day” means a Business Day.
“SEC” means the United States Securities and Exchange Commission as constituted from
time to time, or any successor performing a similar function.
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“Securities Act” means the Securities Act of 1933, as amended.
“Senior Credit Agreement” means the Loan and Security Agreement, dated as of March 21, 2017, by and among the Company, the lenders party thereto and Hercules Capital, Inc., as administrative and collateral agent for the lenders, together with the related agreements and instruments thereto (including, without limitation, any guarantee agreements and security documents) and any other debt facilities or commercial paper facilities with banks or other institutional lenders providing for revolving credit loans, term loans or letters of credit or issuances of debt securities evidenced by notes, debentures, bonds or similar instruments that is designated as the Senior Credit Agreement by the Company, in each case, as amended as of the Issue Date or as may hereafter be amended, restated, modified, supplemented, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced in whole or in part from time to time that extend the maturity of, refinance, replace or otherwise restructure (including increasing the amount of available borrowings thereunder or adding Subsidiaries of the Company as additional borrowers or guarantors thereunder) all or any portion of the indebtedness under such agreement or any successor or replacement agreement and whether by the same or any other agent, lender or group of lenders.
“Senior Credit Agreement Agent” means Hercules Capital, Inc., and its successors and assigns in its capacity as administrative agent and Senior Agent pursuant to the Loan Documents (as defined in the Intercreditor Agreement) acting for and on behalf of the Senior Lenders (as defined in the Intercreditor Agreement) and any successor or replacement agent.
“Significant Subsidiary” means, with respect to any Person, any Subsidiary of such Person that constitutes, or any group of Subsidiaries of such Person that, in the aggregate, would constitute, a “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X under the Exchange Act) of such Person.
“Special Interest” means any interest that accrues on any Note pursuant to Section 7.03.
“Stock Price” has the following meaning for any Make-Whole Fundamental Change: (A) if the holders of Common Stock receive only cash in consideration for their shares of Common Stock in such Make-Whole Fundamental Change and such Make-Whole Fundamental Change is pursuant to clause (B) of the definition of “Fundamental Change,” then the Stock Price is the amount of cash paid per share of Common Stock in such Make-Whole Fundamental Change; and (B) in all other cases, the Stock Price is the average of the Last Reported Sale Prices per share of Common Stock for the five (5) consecutive Trading Days ending on, and including, the Trading Day immediately before the effective date of such Make-Whole Fundamental Change.
“Subsidiary” means, with respect to any Person, (A) any corporation, association or other business entity (other than a partnership or limited liability company) of which more than fifty percent (50%) of the total voting power of the Capital Stock entitled (without regard to the occurrence of any contingency, but after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees, as applicable, of such corporation, association or other business entity is owned or
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controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person; and (B) any partnership or limited liability company where (i) more than fifty percent (50%) of the capital accounts, distribution rights, equity and voting interests, or of the general and limited partnership interests, as applicable, of such partnership or limited liability company are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person, whether in the form of membership, general, special or limited partnership or limited liability company interests or otherwise; and (ii) such Person or any one or more of the other Subsidiaries of such Person is a controlling general partner of, or otherwise controls, such partnership or limited liability company.
“Trademark License” means any written agreement granting any right to use any Trademark or Trademark registration, now owned or hereafter acquired by the Company or in which the Company now holds or hereafter acquires any interest.
“Trademarks” means all trademarks (registered, common law or otherwise) and any applications in connection therewith, including registrations, recordings and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States of America, any State thereof or any other country or any political subdivision thereof.
“Trading Day” means any day on which (A) trading in the Common Stock generally occurs on the principal U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded; and (B) there is no Market Disruption Event. If the Common Stock is not so listed or traded, then “Trading Day” means a Business Day.
“Trustee” means the Person named as such in the first paragraph of this Indenture until a successor replaces it in accordance with the provisions of this Indenture and, thereafter, means such successor.
“UCC” means the Uniform Commercial Code as the same is, from time to time, in effect in the State of New York; provided, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of, or remedies with respect to, the Collateral Agent’s Lien on any Collateral is governed by the Uniform Commercial Code as the same is, from time to time, in effect in a jurisdiction other than the State of New York, then the term “UCC” will mean the Uniform Commercial Code as in effect, from time to time, in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions.
“VWAP Market Disruption Event” means, with respect to any date, (A) the failure by the principal U.S. national or regional securities exchange on which the Common Stock is then listed, or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, the principal other market on which the Common Stock is then traded, to open for trading during its regular trading session on such date; or (B) the occurrence or existence, for more than one half hour period in the aggregate during the regular trading session, of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Common Stock or in any options contracts or futures contracts
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relating to the Common Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m., New York City time, on such date.
“VWAP Trading Day” means a day on which (A) there is no VWAP Market Disruption Event; and (B) trading in the Common Stock generally occurs on the principal U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded. If the Common Stock is not so listed or traded, then “VWAP Trading Day” means a Business Day.
“Wholly Owned Subsidiary” of a Person means any Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares) are owned by such Person or one or more Wholly Owned Subsidiaries of such Person.
|
Term |
Defined in |
|
“Additional Shares” |
5.08(A) |
|
“Beneficial Ownership Limit” |
5.11(B) |
|
“Business Combination Event” |
6.01(A) |
|
“Collateral” |
11.01 |
|
“Common Stock Change Event” |
5.09(A) |
|
“Company Mandatory Conversion Right” |
5.04(A) |
|
“Conversion Agent” |
2.05(A) |
|
“Conversion Consideration” |
5.03(A) |
|
“Default Interest” |
2.04(B) |
|
“Defaulted Amount” |
2.04(B) |
|
“Equity Conditions” |
5.04(D) |
|
“Event of Default” |
7.01(A) |
|
“Expiration Date” |
5.06(A)(v) |
|
“Expiration Time” |
5.06(A)(v) |
|
“Fundamental Change Notice” |
4.02(E) |
|
“Fundamental Change Repurchase Right” |
4.02(A) |
|
“General Beneficial Ownership Limit” |
5.11(A) |
|
“Holder Beneficial Ownership Limit” |
5.11(B) |
|
“Initial Notes” |
2.02(A) |
|
“Mandatory Conversion” |
5.04(A) |
|
“Mandatory Conversion Notice” |
5.04(B) |
|
“Optional Repurchase Date” |
4.03(A) |
|
“Optional Repurchase Date Notice” |
4.03(D) |
|
“Optional Repurchase Right” |
4.03(A) |
|
“Paying Agent” |
2.05(A) |
|
“Redemption Notice” |
4.04(F) |
|
“Reference Property” |
5.09(A) |
|
“Reference Property Unit” |
5.09(A) |
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|
“Register” |
2.05(B) |
|
“Registrar” |
2.05(A) |
|
“Reporting Event of Default” |
7.03(A) |
|
“Spin-Off” |
5.06(A)(iii)(2) |
|
“Spin-Off Valuation Period” |
5.06(A)(iii)(2) |
|
“Stated Interest” |
2.04(A) |
|
“Successor Corporation” |
6.01(A) |
|
“Successor Person” |
5.09(A) |
|
“Tender/Exchange Offer Valuation Period” |
5.06(A)(v) |
For purposes of this Indenture:
|
(A) “or” is not exclusive; |
|
(B) “including” means “including without limitation”; |
|
(C) “will” expresses a command; |
|
(D) the “average” of a set of numerical values refers to the arithmetic average of such numerical values; |
|
(E) a merger involving, or a transfer of assets by, a limited liability company, limited partnership or trust will be deemed to include any division of or by, or an allocation of assets to a series of, such limited liability company, limited partnership or trust, or any unwinding of any such division or allocation; |
|
(F) words in the singular include the plural and in the plural include the singular, unless the context requires otherwise; |
|
(G) “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision of this Indenture, unless the context requires otherwise; |
|
(H) references to currency mean the lawful currency of the United States of America, unless the context requires otherwise; |
|
(I) the exhibits, schedules and other attachments to this Indenture are deemed to form part of this Indenture; and |
|
(J) the term “interest,” when used with respect to a Note, includes any Special Interest, unless the context requires otherwise. |
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The Notes and the Trustee’s certificate of authentication will be substantially in the form set forth in Exhibit A. The Notes will bear the legends required by Section 2.07 and may bear notations, legends or endorsements required by law, stock exchange rule or usage or the Depositary. Each Note will be dated as of the date of its authentication.
Except to the extent otherwise provided in a Company Order delivered to the Trustee in connection with the issuance and authentication thereof, the Notes will be issued initially in the form of one or more Global Notes. Global Notes may be exchanged for Physical Notes, and Physical Notes may be exchanged for Global Notes, only as provided in Section 2.08.
The Notes will be issuable only in registered form without interest coupons and only in Authorized Denominations.
Each certificate representing a Note will bear a unique registration number that is not affixed to any other certificate representing another outstanding Note.
The terms contained in the Notes constitute part of this Indenture, and, to the extent applicable, the Company, the Trustee and the Collateral Agent, by their execution and delivery of this Indenture, agree to such terms and to be bound thereby; provided, however, that, to the extent that any provision of any Note conflicts with the provisions of this Indenture, the provisions of this Indenture will control for purposes of this Indenture and such Note.
(A)Initial Notes. On the Issue Date, there will be originally issued SIXTY-TWO MILLION EIGHT HUNDRED SEVENTY-TWO THOUSAND dollars ($62,872,000) aggregate principal amount of Notes, subject to the provisions of this Indenture. Notes issued pursuant to this Section 2.02(A), and any Notes issued in exchange therefor or in substitution thereof, are referred to in this Indenture as the “Initial Notes.”
(B)Additional Notes. The Company may, subject to the provisions of this Indenture, originally issue additional Notes with the same terms as the Initial Notes (except, to the extent applicable, with respect to the date as of which interest begins to accrue on such additional Notes and the first Interest Payment Date of such additional Notes), which additional Notes will, subject to the foregoing, be considered to be part of the same series of, and rank equally and ratably with all other, Notes issued under this Indenture; provided, however, that if any such additional Notes are not fungible with other Notes issued under this Indenture for federal income tax or federal securities laws purposes, then such additional Notes will be identified by a separate CUSIP number or by no CUSIP number.
(C)Execution and Authentication.
The Notes will be executed on behalf of the Company by two Officers of the Company or
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an Officer and an Assistant Secretary of the Company. Each such signature may be manual, facsimile or electronic (in “.pdf” format).
If an Officer whose signature is on a Note no longer holds that office at the time the Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual, facsimile or electronic (in “.pdf” format) signature of the Trustee or an authenticating agent. The signature will be conclusive evidence that the Note has been authenticated under this Indenture. Each Note will be dated the date of its authentication.
On the Issue Date, the Trustee will, upon receipt of a Company Order, authenticate and deliver the Initial Notes contemplated to be issued on the Issue Date by Section 2.02(A).
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Any appointment will be evidenced by an instrument signed by an authorized officer of the Trustee, a copy of which will be furnished to the Company. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
|
(A) Global Notes. The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date, Redemption on a Redemption Date, Optional Repurchase on an Optional Repurchase Date or repurchase on a Fundamental Change Repurchase Date or otherwise) of, interest on, and any cash Conversion Consideration for, any Global Note to the Depositary by wire transfer of immediately available funds no later than the time the same is due as provided in this Indenture. |
|
(B) Physical Notes. The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date, Redemption on a Redemption Date, Optional Repurchase on an Optional Repurchase Date or repurchase on a Fundamental Change Repurchase Date or otherwise) of, interest on, and any cash Conversion Consideration for, any Physical Note no later than the time the same is due as provided in this Indenture as follows: (i) if the principal amount of such Physical Note is at least five million dollars ($5,000,000) (or such lower amount as the Company may choose in its sole and absolute discretion) and the Holder of such Physical Note entitled to such payment has delivered to the Paying Agent or the Trustee, no later than the time set forth in the immediately following sentence, a written request that the Company make such payment by wire transfer to an account of such Holder within the United States, by wire transfer of immediately available funds to such account; and (ii) in all other cases, by check mailed to the address of the Holder of such Physical Note entitled to such payment as set forth in the Register. To be timely, such written request must be so delivered no later than the Close of Business on the following date: (x) with respect to the payment of any interest due on an Interest Payment Date, the immediately preceding Regular Record Date; (y) with respect to any cash Conversion Consideration, the relevant Conversion Date; and (z) with respect to any other payment, the date that is fifteen (15) calendar days immediately before the date such payment is |
- 15 -
due. |
- 16 -
presented for payment (the “Paying Agent”); and (iii) an office or agency in the contiguous United States where Notes may be presented for conversion (the “Conversion Agent”). If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, then the Trustee will act as such; provided that no office of the Trustee will be an office or agency of the Company for purposes of service of legal process against the Company. For the avoidance of doubt, the Company or any of its Subsidiaries may act as Registrar, Paying Agent or Conversion Agent. The Company will give prompt written notice to the Trustee of any change in the location of any such office or agency. |
|
(C) Co-Agents; Company’s Right to Appoint Successor Registrars, Paying Agents and Conversion Agents. The Company may appoint one or more co-Registrars, co-Paying Agents and co-Conversion Agents, each of whom will be deemed to be a Registrar, Paying Agent or Conversion Agent, as applicable, under this Indenture. Subject to Section 2.05(A), the Company may change any Registrar, Paying Agent or Conversion Agent (including appointing itself or any of its Subsidiaries to act in such capacity) without notice to any Holder. The Company will notify the Trustee (and, upon request, any Holder) of the name and address of each Note Agent, if any, not a party to this Indenture and will enter into an appropriate agency agreement with each such Note Agent, which agreement will implement the provisions of this Indenture that relate to such Note Agent. |
|
(D) Initial Appointments. The Company hereby appoints the Trustee as the initial Paying Agent, the initial Registrar and the initial Conversion Agent. |
The Company will require each Paying Agent or Conversion Agent that is not the Trustee to agree in writing that such Note Agent will (A) hold in trust for the benefit of Holders or the Trustee all money and other property held by such Note Agent for payment or delivery due on the Notes; and (B) notify the Trustee of any default by the Company in making any such payment or delivery. The Company, at any time, may, and the Trustee, while any Default continues, may, require a Paying Agent or Conversion Agent to pay or deliver, as applicable, all money and other property held by it to the Trustee, after which payment or delivery, as applicable, such Note Agent (if not the Company or any of its Subsidiaries) will have no further liability for such money or property. If the Company or any of its Subsidiaries acts as Paying Agent or Conversion Agent, then (A) it will segregate and hold in a separate trust fund for the benefit of the Holders or the Trustee all money and other property held by it as Paying Agent or Conversion Agent; and (B) references in this Indenture or the Notes to the Paying Agent or Conversion Agent holding cash or other property, or to the delivery of cash or other property to the Paying Agent or Conversion Agent, in each case for payment or delivery to any Holders or the Trustee or with respect to the Notes, will be deemed to refer to cash or other property so segregated and held separately, or to the segregation and separate holding of such cash or other property, respectively. Upon the
- 17 -
occurrence of any event pursuant to in clause (ix) or (x) of Section 7.01(A) with respect to the Company (or with respect to any Subsidiary of the Company acting as Paying Agent or Conversion Agent), the Trustee will serve as the Paying Agent or Conversion Agent, as applicable, for the Notes.
|
(A) Global Note Legend. Each Global Note will bear the Global Note Legend (or any similar legend, not inconsistent with this Indenture, required by the Depositary for such Global Note). |
|
(B) Other Legends. A Note may bear any other legend or text, not inconsistent with this Indenture, as may be required by applicable law or by any securities exchange or automated quotation system on which such Note is traded or quoted. |
|
(C) Acknowledgement and Agreement by the Holders. A Holder’s acceptance of any Note bearing any legend required by this Section 2.07 will constitute such Holder’s acknowledgement of, and agreement to comply with, the restrictions set forth in such legend. |
|
(A) Provisions Applicable to All Transfers and Exchanges. |
|
(i) Subject to this Section 2.08, Physical Notes and beneficial interests in Global Notes may be transferred or exchanged from time to time and the Registrar will record each such transfer or exchange in the Register. |
|
(iii) The Company, the Trustee and the Note Agents will not impose any service charge on any Holder for any transfer, exchange or conversion of Notes, but the Company, the Trustee, the Registrar and the Conversion Agent may require payment of a sum sufficient to cover any transfer tax or similar governmental charge that may be imposed in connection with any transfer, exchange or conversion of Notes, other than exchanges pursuant to Sections 2.09, 2.12 or 9.05 not involving any transfer. |
|
(iv) Notwithstanding anything to the contrary in this Indenture or the Notes, a Note may not be transferred or exchanged in part unless the portion to be so transferred or exchanged is in an Authorized Denomination. |
|
(v) The Trustee will have no obligation or duty to monitor, determine or inquire as to compliance with any transfer restrictions imposed by applicable law or under this Indenture with respect to any transfer of any interest in any Note or any share of Common Stock issued upon conversion of any Note (including any transfers between or among the |
- 18 -
Depositary, participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. |
|
(vi) Each Note issued upon transfer of, or in exchange for, another Note will bear each legend, if any, required by Section 2.07. |
|
(vii) Upon satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Note, the Company will cause such transfer or exchange to be effected as soon as reasonably practicable but in no event later than the second (2nd) Business Day after the date of such satisfaction. |
|
(viii) None of the Trustee, the Collateral Agent nor any Note Agent will have any responsibility or liability for any actions taken or not taken by the Depositary. |
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(1) (x) the Depositary notifies the Company or the Trustee that the Depositary is unwilling or unable to continue as depositary for such Global Note or (y) the Depositary ceases to be a “clearing agency” registered under Section 17A of the Exchange Act and, in each case, the Company fails to appoint a successor Depositary within ninety (90) days of such notice or cessation; |
|
(2) an Event of Default has occurred and is continuing and a holder of a beneficial interest in such Global Note requests to exchange such Global Note or beneficial interest, as applicable, for one or more Physical Notes; or |
|
(3) the Company, in its sole discretion, permits the exchange of any beneficial interest in such Global Note for one or more Physical Notes at the request of the owner of such beneficial interest. |
|
(ii) Upon satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Global Note (or any portion thereof): |
|
(1) the Trustee will reflect any resulting decrease of the principal amount of such Global Note by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note (and, if such notation results in such Global Note having a principal amount of zero, the Company may (but is not required to) instruct |
- 19 -
the Trustee to cancel such Global Note pursuant to Section 2.15); |
|
(2) if required to effect such transfer or exchange, then the Trustee will reflect any resulting increase of the principal amount of any other Global Note by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such other Global Note; |
|
(3) if required to effect such transfer or exchange, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, a new Global Note bearing each legend, if any, required by Section 2.07; and |
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(4) if such Global Note (or such portion thereof), or any beneficial interest therein, is to be exchanged for one or more Physical Notes, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that are in Authorized Denominations (not to exceed, in the aggregate, the principal amount of such Global Note to be so exchanged), are registered in such name(s) as the Depositary specifies (or as otherwise determined pursuant to customary procedures) and bear each legend, if any, required by Section 2.07. |
|
(iii) Each transfer or exchange of a beneficial interest in any Global Note will be made in accordance with the Depositary Procedures. |
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(i) Subject to this Section 2.08, a Holder of a Physical Note may (x) transfer such Physical Note (or any portion thereof in an Authorized Denomination) to one or more other Person(s); (y) exchange such Physical Note (or any portion thereof in an Authorized Denomination) for one or more other Physical Notes in Authorized Denominations having an aggregate principal amount equal to the aggregate principal amount of the Physical Note (or portion thereof) to be so exchanged; and (z) if then permitted by the Depositary Procedures, transfer such Physical Note (or any portion thereof in an Authorized Denomination) in exchange for a beneficial interest in one or more Global Notes; provided, however, that, to effect any such transfer or exchange, such Holder must surrender such Physical Note to be transferred or exchanged to the office of the Registrar, together with any endorsements or transfer instruments reasonably required by the Company, the Trustee or the Registrar. |
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(1) such old Physical Note will be promptly cancelled pursuant to Section 2.15; |
|
(2) if such old Physical Note is to be transferred or exchanged only in part, then the Company will issue, execute and deliver, and the Trustee will authenticate, |
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in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such old Physical Note not to be transferred or exchanged; (y) are registered in the name of such Holder; and (z) bear each legend, if any, required by Section 2.07; |
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(3) in the case of a transfer: |
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(a) to the Depositary or a nominee thereof that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred in the form of one or more Global Notes, the Trustee will reflect an increase of the principal amount of one or more existing Global Notes by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note(s), which increase(s) are in Authorized Denominations and aggregate to the principal amount to be so transferred, and which Global Note(s) bear each legend, if any, required by Section 2.07; provided, however, that if such transfer cannot be so effected by notation on one or more existing Global Notes (whether because no Global Notes bearing each legend, if any, required by Section 2.07 then exist, because any such increase will result in any Global Note having an aggregate principal amount exceeding the maximum aggregate principal amount permitted by the Depositary or otherwise), then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Global Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so transferred; and (y) bear each legend, if any, required by Section 2.07; and |
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(b) to a transferee that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred in the form of one or more Physical Notes, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so transferred; (y) are registered in the name of such transferee; and (z) bear each legend, if any, required by Section 2.07; and |
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(4) in the case of an exchange, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so exchanged; (y) are registered in the name of the Person to whom such old Physical Note was registered; and (z) bear each legend, if any, required by Section 2.07. |
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(D) Transfers of Notes Subject to Redemption, Repurchase or Conversion. Notwithstanding anything to the contrary in this Indenture or the Notes, the Company, the Trustee and the Registrar will not be required to register the transfer of or exchange any Note that (i) has been surrendered for conversion, except to the extent that any portion of such Note is not subject |
- 21 -
to conversion; (ii) is subject to a Fundamental Change Repurchase Notice or Optional Repurchase Notice validly delivered, and not withdrawn, pursuant to Section 4.02(F) or 4.03(E), respectively, except to the extent that any portion of such Note is not subject to such notice or the Company fails to pay the applicable Fundamental Change Repurchase Price or Optional Repurchase Price, as applicable, when due; or (iii) has been selected for Redemption pursuant to a Redemption Notice, except to the extent that any portion of such Note is not subject to Redemption or the Company fails to pay the applicable Redemption Price when due. |
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(B) Cancellation of Converted, Redeemed and Repurchased Notes. |
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(i) Physical Notes. If a Physical Note (or any portion thereof that has not theretofore been exchanged pursuant to Section 2.09(A)) of a Holder is to be converted pursuant to Article 5 or repurchased pursuant to a Repurchase Upon Fundamental Change, Optional Repurchase or Redemption, then, promptly after the later of the time such Physical Note (or such portion) is deemed to cease to be outstanding pursuant to Section 2.13 and the time such Physical Note is surrendered for such conversion or repurchase, as applicable, (1) such Physical Note will be cancelled pursuant to Section 2.15; and (2) in the case of a partial conversion, Redemption or repurchase, the Company will issue, execute and deliver to such Holder, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such Physical Note that is not to be so converted, redeemed or repurchased; (y) are registered in the name of such Holder; and (z) bear each legend, if any, required by Section 2.07. |
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(ii) Global Notes. If a Global Note (or any portion thereof) is to be converted pursuant to Section 4.04 or repurchased pursuant to a Repurchase Upon Fundamental Change, Optional Repurchase or Redemption, then, promptly after the time such Note (or such portion) is deemed to cease to be outstanding pursuant to Section 2.13, the Trustee |
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will reflect a decrease of the principal amount of such Global Note in an amount equal to the principal amount of such Global Note to be so converted, redeemed or repurchased, as applicable, by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note (and, if the principal amount of such Global Note is zero following such notation, cancel such Global Note pursuant to Section 2.15). |
Only the Holder of a Note will have rights under this Indenture as the owner of such Note. Without limiting the generality of the foregoing, Depositary Participants will have no rights as such under this Indenture with respect to any Global Note held on their behalf by the Depositary or its nominee, or by the Trustee as its custodian, and the Company, the Trustee, the Collateral Agent and the Note Agents, and their respective agents, may treat the Depositary as the absolute owner of such Global Note for all purposes whatsoever; provided, however, that (A) the Holder of any Global Note may grant proxies and otherwise authorize any Person, including Depositary Participants and Persons that hold interests in Notes through Depositary Participants, to take any action that such Holder is entitled to take with respect to such Global Note under this Indenture or the Notes; and (B) the Company, the Trustee and the Collateral Agent, and their respective agents, may give effect to any written certification, proxy or other authorization furnished by the Depositary.
None of the Trustee, the Collateral Agent nor any Note Agent will have any responsibility
or obligation to any beneficial owner of a Global Note, a member of, or a participant in the Depositary, or any other Person with respect to the accuracy of the records of the Depositary, or its nominee or of any participant or member thereof, with respect to any ownership interest in the
Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption or repurchase) or the payment of any amount, under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to the Holders under the Notes will be given or made only to the registered Holders (which will be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note will be exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The
Trustee, Collateral Agent and Note Agents may rely and will be fully protected in relying upon information furnished by the Depositary, with respect to its members, participants and any beneficial owners.
Without limiting the generality of Section 3.03, in determining whether the Holders of the required aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company or any of its Affiliates will be deemed not to be outstanding; provided, however, that, for purposes of determining whether the Trustee or Collateral Agent are protected in relying on any such direction, waiver or consent, only Notes that the Trustee or Collateral Agent, as applicable, knows are so owned will be so disregarded.
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Until definitive Notes are ready for delivery, the Company may issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes. The Company will promptly prepare, issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, definitive Notes in exchange for temporary Notes. Until so exchanged, each temporary Note will in all respects be entitled to the same benefits under this Indenture as definitive Notes.
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(A) Generally. The Notes that are outstanding at any time will be deemed to be those Notes that, at such time, have been duly executed and authenticated, excluding those Notes (or portions thereof) that have theretofore been (i) cancelled by the Trustee or delivered to the Trustee for cancellation in accordance with Section 2.15; (ii) assigned a principal amount of zero by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of any a Global Note representing such Note; (iii) paid in full in accordance with this Indenture; or (iv) deemed to cease to be outstanding to the extent provided in, and subject to, clause (B), (C) or (D) of this Section 2.13. |
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to be a Default for purposes of this Section 2.13(D), nor will it affect the operation of Section 2.13(E). |
Without limiting the generality of Section 2.15, the Company may, from time to time, repurchase Notes in open market purchases or in negotiated transactions without delivering prior notice to Holders.
All Notes surrendered for payment, conversion, redemption or registration of transfer or exchange will, if surrendered to any Person other than the Trustee, be delivered to the Trustee for cancellation. The Company may at any time deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Notes previously authenticated hereunder which the Company has not issued and sold. The Registrar and the Paying Agent will forward to the Trustee any Notes surrendered to them for transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent, and no one else, will cancel all Notes surrendered for transfer, exchange, payment or cancellation. If the Company will acquire any of the Notes, such acquisition will not operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.15. No Notes will be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section 2.15, except as expressly permitted by this Indenture.
If a mutilated Note is surrendered to the Trustee, or if the Holder of a Note presents evidence to the satisfaction of the Company and the Trustee that the Note has been lost, destroyed or wrongfully taken, the Company will issue and the Trustee (upon Company Order) will authenticate a replacement Note of like tenor and principal amount and bearing a number not contemporaneously outstanding. An indemnity bond may be required by the Company or the Trustee that is sufficient in the judgment of the Company or the Trustee, as the case may be, to protect the Company, the Trustee, the Collateral Agent or any Note Agent from any loss which any of them may suffer if a Note is replaced. The Company may charge such Holder for the Company’s out-of-pocket expenses in replacing a Note, including the fees and expenses of the Trustee. Every replacement Note will constitute an original additional obligation of the Company, whether or not the destroyed, lost or stolen Note will be at any time enforceable by anyone, and will be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes.
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The Company in issuing the Notes may use one or more “CUSIP” or “ISIN” numbers, and, if the Company does so, the Trustee will use the CUSIP or ISIN number(s) in notices of redemption or exchange as a convenience to Holders; provided, that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP or ISIN number(s) printed in the notice or on the Notes, and that reliance may be placed only on the other identification numbers printed on the Notes, and that any such redemption or exchange will not be affected by any defect in or omission of any such numbers.
The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Company will furnish, or cause the Registrar to furnish, to the Trustee, in writing at least five Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders.
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(A) Generally. The Company will pay or cause to be paid all the principal of, the Fundamental Change Repurchase Price, Redemption Price and Optional Repurchase Price for, interest on, and other amounts due with respect to, the Notes on the dates and in the manner set forth in this Indenture. |
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(B) Deposit of Funds. Before 10:00 A.M., New York City time, on each Redemption Date, Fundamental Change Repurchase Date, Optional Repurchase Date or Interest Payment Date, and on the Maturity Date or any other date on which any cash amount is due on the Notes, the Company will deposit, or will cause there to be deposited, with the Paying Agent cash, in funds immediately available on such date, sufficient to pay the cash amount due on the applicable Notes on such date. The Paying Agent will return to the Company, as soon as practicable, any money not required for such purpose. |
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Holder, the Company will provide to such Holder a copy of any report that the Company has sent the Trustee pursuant to this Section 3.02(A), other than a report that is deemed to be sent to the Trustee pursuant to the preceding sentence. |
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(B) Trustee’s Disclaimer. The Trustee need not determine whether the Company has filed or furnished any material via the XXXXX system (or such successor). The sending, filing or furnishing of reports pursuant to Section 3.02(A) will not be deemed to constitute actual or constructive notice to the Trustee of any information contained, or determinable from information contained, therein, including the Company’s compliance with any of its covenants under this Indenture, as to which the Trustee is entitled to rely exclusively on Officer’s Certificates. |
The Company will promptly deliver to the Trustee for cancellation all Notes that the Company or any of its Subsidiaries have purchased or otherwise acquired. The Company will use commercially reasonable efforts to prevent any of its controlled Affiliates from acquiring any Note (or any beneficial interest therein).
At the Trustee’s request, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to more effectively carry out the purposes of this Indenture.
(A)The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, an Officer’s Certificate stating that a review of the activities of the Company and its Subsidiaries during such fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and that there is no default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default will have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto).
(B)If any Event of Default has occurred and is continuing, within five Business Days after the Company becoming aware of such Event of Default the Company will deliver to the Trustee an Officer’s Certificate specifying such Event of Default and what action the Company is taking or proposes to take with respect thereto.
To the extent that it may lawfully do so, the Company (A) agrees that it will not at
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any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law (wherever or whenever enacted or in force) that may affect the covenants or the performance of this Indenture; and (B) expressly waives all benefits or advantages of any such law and agrees that it will not, by resort to any such law, hinder, delay or impede the execution of any power granted to the Trustee or the Collateral Agent by this Indenture, but will suffer and permit the execution of every such power as though no such law has been enacted.
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(A) The Company will not, and will not allow any Subsidiary to, issue or incur any indebtedness for borrowed money (including, without limitation, additional Notes issued pursuant to Section 2.02(B)) secured by a Lien on all or any portion of the Collateral (i) on a basis senior to the Lien of the Collateral Agent in an aggregate principal amount in excess of $75,000,000 at any time outstanding; or (ii) on a basis pari passu with the Lien of the Collateral Agent in an aggregate principal amount in excess of $65,000,000 at any time outstanding; provided that this Section 3.07 will no longer be in effect at any time when the aggregate principal amount of Initial Notes then outstanding is less than $22,000,000. |
No sinking fund is required to be provided for the Notes.
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Section 4.02. Right of Holders to Require the Company to Repurchase Notes upon a Fundamental Change. |
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(C) Fundamental Change Repurchase Date. The Fundamental Change Repurchase Date for any Fundamental Change will be a Business Day of the Company’s choosing that is no |
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more than thirty five (35), nor less than twenty (20), Business Days after the date the Company sends the related Fundamental Change Notice pursuant to Section 4.02(E). |
Such Fundamental Change Notice must state:
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(i) briefly, the events causing such Fundamental Change; |
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(ii) the effective date of such Fundamental Change; |
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(iii) the procedures that a Holder must follow to require the Company to repurchase its Notes pursuant to this Section 4.02, including the deadline for exercising the Fundamental Change Repurchase Right and the procedures for submitting and withdrawing a Fundamental Change Repurchase Notice; |
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(iv) the Fundamental Change Repurchase Date for such Fundamental Change; |
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(v) the Fundamental Change Repurchase Price per $1,000 principal amount of Notes for such Fundamental Change (and, if such Fundamental Change Repurchase Date |
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is after a Regular Record Date and on or before the next Interest Payment Date, the amount, manner and timing of the interest payment payable pursuant to the proviso to Section 4.02(D)); |
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(vi) the name and address of the Paying Agent and the Conversion Agent; |
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(vii) the Conversion Rate in effect on the date of such Fundamental Change Notice and a description and quantification of any adjustments to the Conversion Rate that may result from such Fundamental Change (including pursuant to Section 5.08); |
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(viii) that Notes for which a Fundamental Change Repurchase Notice has been duly tendered and not duly withdrawn must be delivered to the Paying Agent for the Holder thereof to be entitled to receive the Fundamental Change Repurchase Price; |
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(ix) that Notes (or any portion thereof) that are subject to a Fundamental Change Repurchase Notice that has been duly tendered may be converted only if such Fundamental Change Repurchase Notice is withdrawn in accordance with this Indenture; and |
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(x) the CUSIP and ISIN numbers, if any, of the Notes. |
Neither the failure to deliver a Fundamental Change Notice nor any defect in a Fundamental Change Notice will limit the Fundamental Change Repurchase Right of any Holder or otherwise affect the validity of any proceedings relating to any Repurchase Upon Fundamental Change.
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(1) before the Close of Business on the Business Day immediately before the related Fundamental Change Repurchase Date (or such later time as may be required by law), a duly completed, written Fundamental Change Repurchase Notice with respect to such Note; and |
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(2) such Note, duly endorsed for transfer (if such Note is a Physical Note) or by book-entry transfer (if such Note is a Global Note). |
The Paying Agent will promptly deliver to the Company a copy of each Fundamental Change Repurchase Notice that it receives.
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(ii) Contents of Fundamental Change Repurchase Notices. Each Fundamental Change Repurchase Notice with respect to a Note must state: |
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(1) if such Note is a Physical Note, the certificate number of such Note; |
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(2) the principal amount of such Note to be repurchased, which must be |
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an Authorized Denomination; and |
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(3) that such Holder is exercising its Fundamental Change Repurchase Right with respect to such principal amount of such Note; |
provided, however, that if such Note is a Global Note, then such Fundamental Change Repurchase Notice must comply with the Depositary Procedures (and any such Fundamental Change Repurchase Notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.02(F)).
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(iii) Withdrawal of Fundamental Change Repurchase Notice. A Holder that has delivered a Fundamental Change Repurchase Notice with respect to a Note may withdraw such Fundamental Change Repurchase Notice by delivering a written notice of withdrawal to the Paying Agent at any time before the Close of Business on the Business Day immediately before the related Fundamental Change Repurchase Date. Such withdrawal notice must state: |
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(1) if such Note is a Physical Note, the certificate number of such Note; |
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(2) the principal amount of such Note to be withdrawn, which must be an Authorized Denomination; and |
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(3) the principal amount of such Note, if any, that remains subject to such Fundamental Change Repurchase Notice, which must be an Authorized Denomination; |
provided, however, that if such Note is a Global Note, then such withdrawal notice must comply with the Depositary Procedures (and any such withdrawal notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.02(F)).
Upon receipt of any such withdrawal notice with respect to a Note (or any portion thereof), the Paying Agent will (x) promptly deliver a copy of such withdrawal notice to the Company; and (y) if such Note is surrendered to the Paying Agent, cause such Note (or such portion thereof in accordance with Section 2.09, treating such Note as having been then surrendered for partial repurchase in the amount set forth in such withdrawal notice as remaining subject to repurchase) to be returned to the Holder thereof (or, if applicable with respect to any Global Note, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interest in such Note in accordance with the Depositary Procedures).
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case of a Physical Note) or (y) the Depositary Procedures relating to the repurchase, and the delivery to the Paying Agent, of such Holder’s beneficial interest in such Note to be redeemed are complied with (in the case of a Global Note). For the avoidance of doubt, interest payable pursuant to the proviso to Section 4.02(D) on any Note to be repurchased pursuant to a Repurchase Upon Fundamental Change must be paid pursuant to such proviso regardless of whether such Note is delivered or such Depositary Procedures are complied with pursuant to the first sentence of this Section 4.02(G). |
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(H) Compliance with Applicable Securities Laws. To the extent applicable, the Company will comply with all federal and state securities laws in connection with a Repurchase Upon Fundamental Change (including complying with Rules 13e-4 and 14e-1 under the Exchange Act and filing any required Schedule TO, to the extent applicable) so as to permit effecting such Repurchase Upon Fundamental Change in the manner set forth in this Indenture. |
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(I) Repurchase in Part. Subject to the terms of this Section 4.02, Notes may be repurchased pursuant to a Repurchase Upon Fundamental Change in part, but only in Authorized Denominations. Provisions of this Section 4.02 applying to the repurchase of a Note in whole will equally apply to the repurchase of a permitted portion of a Note. |
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Section 4.03. Right of Holders to Require the Company to Repurchase Notes on the Optional Repurchase Dates. |
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(B) Repurchase Prohibited in Certain Circumstances. If the principal amount of the Notes has been accelerated and such acceleration has not been rescinded on or before an Optional Repurchase Date (including as a result of the payment of the related Optional Repurchase Price), then (i) the Company may not repurchase any Notes otherwise subject to Optional Repurchase on such Optional Repurchase Date pursuant to this Section 4.03; and (ii) the Company will cause any Notes theretofore surrendered for such Optional Repurchase to be returned to the Holders thereof (or, if applicable with respect to Global Notes, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interest in such Notes in accordance with the Depositary Procedures). |
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entitled, notwithstanding such Optional Repurchase, to receive, on or, at the Company’s election, before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date, if such Optional Repurchase Date is before such Interest Payment Date); and (ii) the Optional Repurchase Price will not include accrued and unpaid interest on such Note to, but excluding, such Optional Repurchase Date. For the avoidance of doubt, if an Interest Payment Date is not a Business Day within the meaning of Section 2.04(C) and such Optional Repurchase Date occurs on the Business Day immediately after such Interest Payment Date, then (x) accrued and unpaid interest on Notes to, but excluding, such Interest Payment Date will be paid, in accordance with Section 2.04(C), on the next Business Day to Holders at of the Close of Business on the immediately preceding Regular Record Date; and (y) the Optional Repurchase Price will include interest, if any, on Notes to be repurchased from, and including, such Interest Payment Date. |
Such Optional Repurchase Date Notice must state:
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(i) the procedures that a Holder must follow to require the Company to repurchase its Notes pursuant to this Section 4.03, including the deadline for exercising the Optional Repurchase Right with respect to such Optional Repurchase Date and the procedures for submitting and withdrawing an Optional Repurchase Notice, |
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(ii) such Optional Repurchase Date; |
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(iii) the Optional Repurchase Price and that the Holder of any Note at the Close of Business on the Regular Record Date immediately before such Optional Repurchase Date will be entitled to receive, on the Interest Payment Date falling on such Optional Repurchase Date, the unpaid interest that has accrued on such Note to, but excluding, such Interest Payment Date; |
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(iv) the name and address of the Paying Agent and the Conversion Agent; |
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(v) the current Conversion Rate; |
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(vi) that Notes for which an Optional Repurchase Notice has been duly tendered and not duly withdrawn must be delivered to the Paying Agent for the Holder thereof to be entitled to receive the Optional Repurchase Price; |
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(vii) that Notes (or any portion thereof) that are subject to an Optional Repurchase Notice that has been duly tendered may be converted (if otherwise then convertible pursuant to Article 5) only if such Optional Repurchase Notice is withdrawn |
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in accordance with this Indenture; and |
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(viii) the CUSIP and ISIN numbers, if any, of the Notes. |
Neither the failure to deliver an Optional Repurchase Date Notice nor any defect in an Optional Repurchase Date Notice will limit the Optional Repurchase Right of any Holder or otherwise affect the validity of any proceedings relating to any Optional Repurchase.
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(1) before the Close of Business on the Business Day immediately before such Optional Repurchase Date (or such later time as may be required by law), a duly completed, written Optional Repurchase Notice with respect to such Note; and |
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(2) such Note, duly endorsed for transfer (if such Note is a Physical Note) or by book-entry transfer (if such Note is a Global Note). |
The Paying Agent will promptly deliver to the Company a copy of each Optional Repurchase Notice that it receives.
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(ii) Contents of Optional Repurchase Notices. Each Optional Repurchase Notice with respect to a Note must state: |
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(1) if such Note is a Physical Note, the certificate number of such Note; |
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(2) the principal amount of such Note to be repurchased, which must be an Authorized Denomination; and |
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(3) that such Holder is exercising its Optional Repurchase Right with respect to such principal amount of such Note; |
provided, however, that if such Note is a Global Note, then such Optional Repurchase Notice must comply with the Depositary Procedures (and any such Optional Repurchase Notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.03(E)).
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(iii) Withdrawal of Optional Repurchase Notice. A Holder that has delivered an Optional Repurchase Notice with respect to a Note for an Optional Repurchase Date may withdraw such Optional Repurchase Notice by delivering a written notice of withdrawal to the Paying Agent at any time before the Close of Business on the Business Day immediately before such Optional Repurchase Date. Such withdrawal notice must state: |
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(1) if such Note is a Physical Note, the certificate number of such Note; |
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(2) the principal amount of such Note to be withdrawn, which must be an Authorized Denomination; and |
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(3) the principal amount of such Note, if any, that remains subject to such Optional Repurchase Notice, which must be an Authorized Denomination; |
provided, however, that if such Note is a Global Note, then such withdrawal notice must comply with the Depositary Procedures (and any such withdrawal notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.03(E)).
Upon receipt of any such withdrawal notice with respect to a Note (or any portion thereof), the Paying Agent will (x) promptly deliver a copy of such withdrawal notice to the Company; and (y) if such Note is surrendered to the Paying Agent, cause such Note (or such portion thereof in accordance with Section 2.09, treating such Note as having been then surrendered for partial repurchase in the amount set forth in such withdrawal notice as remaining subject to repurchase) to be returned to the Holder thereof (or, if applicable with respect to any Global Note, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interest in such Note in accordance with the Depositary Procedures).
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(G) Compliance with Applicable Securities Laws. To the extent applicable, the Company will comply with all federal and state securities laws in connection with an Optional Repurchase (including complying with Rules 13e-4 and 14e-1 under the Exchange Act and filing any required Schedule TO, to the extent applicable) so as to permit effecting such Optional Repurchase in the manner set forth in this Indenture. |
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(A) No Right to Redeem Before November 1, 2022. The Company may not redeem the Notes at its option at any time before November 1, 2022. |
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Such Redemption Notice must state:
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(i) that the Notes have been called for Redemption, briefly describing the Company’s Redemption right under this Indenture; |
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(ii) the Redemption Date for such Redemption; |
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(iii) the Redemption Price per $1,000 principal amount of Notes for such Redemption (and, if the Redemption Date is after a Regular Record Date and on or before the next Interest Payment Date, the amount, manner and timing of the interest payment payable pursuant to the proviso to Section 4.04(E)); |
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(iv) the name and address of the Paying Agent and the Conversion Agent; |
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(v) that Notes called for Redemption may be converted at any time before the Close of Business on the Business Day immediately before the Redemption Date (or, if the Company fails to pay the Redemption Price due on such Redemption Date in full, at any time until such time as the Company pays such Redemption Price in full); |
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(vi) the Conversion Rate in effect on the Redemption Notice Date for such Redemption; |
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(vii) that Notes called for Redemption must be delivered to the Paying Agent (in the case of Physical Notes) or the Depositary Procedures must be complied with (in the case of Global Notes) for the Holder thereof to be entitled to receive the Redemption Price; and |
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(viii) the CUSIP and ISIN numbers, if any, of the Notes. |
On or before the Redemption Notice Date, the Company will send a copy of such Redemption Notice to the Trustee and the Paying Agent.
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(G) Selection, Conversion and Transfer of Notes to be Redeemed in Part. If less than all Notes then outstanding are called for Redemption, then: |
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(i) the Notes to be redeemed will be selected by the Company as follows: (1) in the case of Global Notes, in accordance with the Depositary Procedures; and (2) in the case of Physical Notes, pro rata, by lot or by such other method the Company considers fair and appropriate; and |
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(ii) if only a portion of a Note is subject to Redemption and such Note is converted in part, then the converted portion of such Note will be deemed to be from the portion of such Note that was subject to Redemption. |
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is delivered to the Paying Agent (in the case of a Physical Note) or (y) the Depositary Procedures relating to the Redemption, and the delivery to the Paying Agent, of such Holder’s beneficial interest in such Note to be redeemed are complied with (in the case of a Global Note). For the avoidance of doubt, interest payable pursuant to the proviso to Section 4.04(E) on any Note (or portion thereof) subject to Redemption must be paid pursuant to such proviso regardless of whether such Note is delivered or such Depositary Procedures are complied with pursuant to the first sentence of this Section 4.04(H). |
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(A) Generally. Subject to the provisions of this Article 5, each Holder may, at its option, convert such Holder’s Notes into Conversion Consideration. |
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(i) Generally. A Holder may convert its Notes at any time until the Close of Business on the Scheduled Trading Day immediately before the Maturity Date. |
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(ii) Limitations and Closed Periods. Notwithstanding anything to the contrary in this Indenture or the Notes: |
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(1) Notes may be surrendered for conversion only after the Open of Business and before the Close of Business on a day that is a Business Day; |
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(2) in no event may any Note be converted after the Close of Business on the Scheduled Trading Day immediately before the Maturity Date; |
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(3) if the Company calls any Note for Redemption pursuant to Section 4.04, then the Holder of such Note may not convert such Note after the Close of Business on the Business Day immediately before the applicable Redemption Date, except to the extent the Company fails to pay the Redemption Price for such Note in accordance with this Indenture; and |
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(4) if a Fundamental Change Repurchase Notice or Optional Repurchase Notice is validly delivered pursuant to Section 4.02(F) or 4.03(E), respectively, with respect to any Note, then such Note may not be converted, except to the extent (a) such Note is not subject to such notice; (b) such notice is withdrawn in accordance with Section 4.02(F) or 4.03(E), as applicable; or (c) the Company fails to pay the Fundamental Change Repurchase Price or Optional Repurchase Price, as applicable, for such Note in accordance with this Indenture. |
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(i) Global Notes. To convert a beneficial interest in a Global Note, the owner of such beneficial interest must (1) comply with the Depositary Procedures for converting such beneficial interest (at which time such conversion will become irrevocable); and (2) pay any amounts due pursuant to Section 5.02(D). |
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(ii) Physical Notes. To convert all or a portion of a Physical Note, the Holder of such Note must (1) complete, manually sign and deliver to the Conversion Agent the conversion notice attached to such Physical Note or a facsimile of such conversion notice; (2) deliver such Physical Note to the Conversion Agent (at which time such conversion will become irrevocable); (3) furnish any endorsements and transfer documents that the Company or the Conversion Agent may require; and (4) pay any amounts due pursuant to Section 5.02(D). |
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(B) Effect of Converting a Note. At the Close of Business on the Conversion Date for a Note (or any portion thereof), such Note (or such portion thereof) will be deemed to cease to be outstanding (and, for the avoidance of doubt, no Person will be deemed to be a Holder of such Note (or such portion thereof) as of the Close of Business on such Conversion Date), except to the extent provided in Section 5.03(A)(i). |
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(E) Conversion Agent to Notify Company of Conversions. If any Note is submitted for conversion to the Conversion Agent or the Conversion Agent receives any notice of conversion with respect to a Note, then the Conversion Agent will promptly notify the Company and the Trustee of such occurrence, together with any other information reasonably requested by the Company, and will cooperate with the Company to determine the Conversion Date for such Note. |
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$1,000 principal amount of such Note to be converted, equal to the Conversion Rate in effect on the Conversion Date for such conversion; and (b) a cash amount equal to the sum of the following: |
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(2) the Interest Make-Whole for such conversion. |
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Days, whether or not consecutive, during any thirty (30) consecutive VWAP Trading Day period commencing on or after the Issue Date, then the Company will have the right (the “Company Mandatory Conversion Right”), exercisable at the Company’s election, to cause all (and not less than all) Notes then outstanding to be automatically converted (any such conversion, a “Mandatory Conversion”). |
Such Mandatory Conversion Notice must state:
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(i) that the Notes have been called for Mandatory Conversion, briefly describing the Company Mandatory Conversion Right under this Indenture; |
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(ii) the Mandatory Conversion Date; |
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(iii) the current Conversion Rate; |
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(iv) the name and address of the Paying Agent and the Conversion Agent; and |
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(v) the CUSIP and ISIN numbers, if any, of the Notes. |
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(i) either (x) all shares of the Common Stock issuable upon Mandatory Conversion will be eligible for resale, by a person that is not an Affiliate of the Company, without registration under any applicable federal or state securities laws; or (y) a shelf registration statement registering the resale of the shares of Common Stock issuable upon |
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conversion of the Notes is effective under the Securities Act and available for use by the persons to whom such shares are to be issued, and the Company expects such shelf registration statement to remain effective and so available for use from the date the Company sends the Mandatory Conversion Notice through the date that is thirty (30) calendar days following such Mandatory Conversion Date; |
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(ii) the Common Stock is listed on any Eligible Market and has not been suspended from trading on such Eligible Market (other than suspensions of not more than two (2) Trading Days and occurring before the applicable date of determination due to business announcements by the Company); |
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(iii) the delisting or suspension of the Common Stock is not pending and has not been threatened in writing by the applicable Eligible Market, and the Company is not then in violation of the then effective minimum listing maintenance requirements of such Eligible Market; |
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(iv) all shares of Common Stock issuable upon Mandatory Conversion may be issued in full without violating the listing rules of The Nasdaq Global Market or any other applicable Eligible Market on which the Common Stock is then listed or trading; and |
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(v) the Company has not defaulted on its obligation to convert any Note before the date the Company sends the Mandatory Conversion Notice, and no Default or Event of Default has occurred and is continuing. |
If any of the Equity Conditions ceases to be satisfied at any time after the Company sends a Mandatory Conversion Notice, the Company will promptly (and no later than the scheduled Mandatory Conversion Date) notify Holders, the Trustee and the Conversion Agent of the same, specifying that the Mandatory Conversion ceases to apply. Except as set forth in the preceding sentence, the Company’s issuance of a Mandatory Conversion Notice will be irrevocable.
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(A) Stock Reserve. At all times from and after the Issue Date, when any Notes are outstanding, the Company will reserve, out of its authorized but unissued and unreserved shares of Common Stock, a number of shares of Common Stock sufficient to permit the conversion of all then-outstanding Notes, assuming the Conversion Rate is increased by the maximum amount pursuant to which the Conversion Rate may be increased pursuant to Section 5.08. |
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(B) Status of Conversion Shares; Listing. Each Conversion Share delivered upon conversion of any Note will be a newly issued or treasury share and will be duly and validly issued, fully paid, non-assessable, free from preemptive rights and free of any lien or adverse claim (except to the extent of any lien or adverse claim created by the action or inaction of the Holder of such Note or the Person to whom such Conversion Share will be delivered). If the Common Stock is then listed on any securities exchange, or quoted on any inter-dealer quotation system, then the Company will cause each Conversion Share, when delivered upon conversion of any Note, to be admitted for listing on such exchange or quotation on such system. |
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(A) Events Requiring an Adjustment to the Conversion Rate. The Conversion Rate will be adjusted, without duplication, from time to time as follows: |
where:
CR0=the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such dividend or distribution, or immediately before the Open of Business on the effective date of such stock split or stock combination, as applicable;
CR1=the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date or the Open of Business on such effective date, as applicable;
OS0=the number of shares of Common Stock outstanding immediately before the Open of Business on such Ex-Dividend Date or effective date, as applicable, without giving effect to such dividend, distribution, stock split or stock combination; and
OS1=the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, stock split or stock combination.
For the avoidance of doubt, an adjustment made pursuant to this Section 5.06(A)(i) will become effective at the time set forth in the definition of CR1 above. If any dividend, distribution, stock split or stock combination of the type described in this Section 5.06(A)(i) is declared or announced, but not so paid or made, then the Conversion Rate will be readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution or to effect such stock split or stock combination, to the Conversion Rate that would then be in effect had such dividend, distribution, stock split or stock combination not been declared or announced.
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provisions set forth in Sections 5.06(A)(iii)(1) and 5.06(E) will apply) entitling such holders, for a period of not more than forty-five (45) calendar days after the record date of such distribution, to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced, then the Conversion Rate will be increased based on the following formula: |
where:
CR0=the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such distribution;
CR1=the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
OS=the number of shares of Common Stock outstanding immediately before the Open of Business on such Ex-Dividend Date;
X=the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and
Y=a number of shares of Common Stock obtained by dividing (x) the aggregate price payable to exercise such rights, options or warrants by (y) the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced.
For the avoidance of doubt, an adjustment made pursuant to this Section 5.06(A)(ii) will become effective at the time set forth in the definition of CR1 above. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants (including as a result of such rights, options or warrants not being exercised), the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the increase to the Conversion Rate for such distribution been made on the basis of delivery of only the number of shares of Common Stock actually delivered upon exercise of such rights, option or warrants. To the extent such rights, options or warrants are not so distributed, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the Ex-Dividend Date for the distribution of such rights, options or warrants not occurred.
For purposes of this Section 5.06(A)(ii), in determining whether any rights, options or warrants entitle holders of Common Stock to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Last Reported Sale Prices per
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share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date of the distribution of such rights, options or warrants is announced, and in determining the aggregate price payable to exercise such rights, options or warrants, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration, if not cash, to be determined by the Board of Directors.
(v)dividends, distributions, rights, options or warrants for which an adjustment to the Conversion Rate is required pursuant to Section 5.06(A)(i) or 5.06(A)(ii);
(w)dividends or distributions paid exclusively in cash for which an adjustment to the Conversion Rate is required pursuant to Section 5.06(A)(iv);
(x)rights issued or otherwise distributed pursuant to a stockholder rights plan, except to the extent provided in Section 5.06(E);
(y)Spin-Offs for which an adjustment to the Conversion Rate is required pursuant to Section 5.06(A)(iii)(2); and
(z)a distribution solely pursuant to a Common Stock Change Event, as to which Section 5.09 will apply,
then the Conversion Rate will be increased based on the following formula:
where:
CR0=the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such distribution;
CR1=the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
SP=the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and
- 45 -
including, the Trading Day immediately before such Ex-Dividend Date; and
FMV=the fair market value (as determined by the Board of Directors), as of such Ex-Dividend Date, of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed per share of Common Stock pursuant to such distribution;
provided, however, that if FMV is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Conversion Rate, each Holder will receive, for each $1,000 principal amount of Notes held by such Holder on the record date for such distribution, at the same time and on the same terms as holders of Common Stock, the amount and kind of shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants that such Holder would have received if such Holder had owned, on such record date, a number of shares of Common Stock equal to the Conversion Rate in effect on such record date.
For the avoidance of doubt, an adjustment made pursuant to this Section 5.06(A)(iii)(1) will become effective at the time set forth in the definition of CR1 above. To the extent such distribution is not so paid or made, or such rights, options or warrants are not exercised before their expiration (including as a result of being redeemed or terminated), the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the distribution, if any, actually made or paid or on the basis of the distribution of only such rights, options or warrants, if any, that were actually exercised, if at all.
where:
CR0=the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such Spin-Off;
CR1=the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
- 46 -
FMV=the product of (x) the average of the Last Reported Sale Prices per share or unit of the Capital Stock or equity interests distributed in such Spin-Off over the ten (10) consecutive Trading Day period (the “Spin-Off Valuation Period”) beginning on, and including, such Ex-Dividend Date (such average to be determined as if references to Common Stock in the definitions of Last Reported Sale Price and Trading Day were instead references to such Capital Stock or equity interests); and (y) the number of shares or units of such Capital Stock or equity interests distributed per share of Common Stock in such Spin-Off; and
SP=the average of the Last Reported Sale Prices per share of Common Stock for each Trading Day in the Spin-Off Valuation Period.
The adjustment to the Conversion Rate pursuant to this Section 5.06(A)(iii)(2) will be calculated as of the last Trading Day of the Spin-Off Valuation Period but will be given effect immediately after the Open of Business on the Ex-Dividend Date for the Spin-Off, with retroactive effect. If a Note is converted and the Conversion Date occurs during the Spin-Off Valuation Period, then, notwithstanding anything to the contrary in this Indenture or the Notes, the Company will, if necessary, delay the settlement of such conversion until the second (2nd) Business Day after the last day of the Spin-Off Valuation Period.
To the extent any dividend or distribution of the type set forth in this Section 5.06(A)(iii)(2) is declared but not made or paid, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the dividend or distribution, if any, actually made or paid.
where:
CR0=the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such dividend or distribution;
CR1=the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
SP=the Last Reported Sale Price per share of Common Stock on the Trading Day immediately before such Ex-Dividend Date; and
- 47 -
D=the cash amount distributed per share of Common Stock in such dividend or distribution;
provided, however, that if D is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Conversion Rate, each Holder will receive, for each $1,000 principal amount of Notes held by such Holder on the record date for such dividend or distribution, at the same time and on the same terms as holders of Common Stock, the amount of cash that such Holder would have received if such Holder had owned, on such record date, a number of shares of Common Stock equal to the Conversion Rate in effect on such record date. For the avoidance of doubt, an adjustment made pursuant to this Section 5.06(A)(iv) will become effective at the time set forth in the definition of CR1 above.
To the extent such dividend or distribution is declared but not made or paid, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the dividend or distribution, if any, actually made or paid.
where:
CR0=the Conversion Rate in effect immediately before the time (the “Expiration Time”) such tender or exchange offer expires;
CR1=the Conversion Rate in effect immediately after the Expiration Time;
AC=the aggregate value (determined as of the Expiration Time by the Board of Directors) of all cash and other consideration paid or payable for shares of Common Stock purchased in such tender or exchange offer;
OS0=the number of shares of Common Stock outstanding immediately before the Expiration Time (before giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);
- 48 -
OS1=the number of shares of Common Stock outstanding immediately after the Expiration Time (excluding all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and
SP=the average of the Last Reported Sale Prices per of Common Stock over the ten (10) consecutive Trading Day period (the “Tender/Exchange Offer Valuation Period”) beginning on, and including, the Trading Day immediately after the Expiration Date;
provided, however, that the Conversion Rate will in no event be adjusted down pursuant to this Section 5.06(A)(v), except to the extent provided in the immediately following paragraph. The adjustment to the Conversion Rate pursuant to this Section 5.06(A)(v) will be calculated as of the Close of Business on the last Trading Day of the Tender/Exchange Offer Valuation Period but will be given effect immediately after the Expiration Time, with retroactive effect. If a Note is converted and the Conversion Date occurs on the Expiration Date or during the Tender/Exchange Offer Valuation Period, then, notwithstanding anything to the contrary in this Indenture or the Notes, the Company will, if necessary, delay the settlement of such conversion until the second (2nd) Business Day after the last day of the Tender/Exchange Offer Valuation Period.
To the extent such tender or exchange offer is announced but not consummated (including as a result of the Company being precluded from consummating such tender or exchange offer under applicable law), or any purchases or exchanges of shares of Common Stock in such tender or exchange offer are rescinded, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the purchases or exchanges of shares of Common Stock, if any, actually made, and not rescinded, in such tender or exchange offer.
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(B) No Adjustments in Certain Cases. |
- 49 -
the Company will not be obligated to adjust the Conversion Rate on account of: |
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(1) except as otherwise provided in Section 5.06, the sale of shares of Common Stock for a purchase price that is less than the market price per share of Common Stock or less than the Conversion Price; |
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(4) the issuance of any shares of Common Stock pursuant to any option, warrant, right or convertible or exchangeable security of the Company not described in clause (3) above and outstanding as of the Issue Date; |
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(5) solely a change in the par value of the Common Stock; or |
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(6) accrued and unpaid interest on the Notes. |
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(C) Adjustments Not Yet Effective. Notwithstanding anything to the contrary in this Indenture or the Notes, if: |
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(i) a Note is to be converted; |
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(ii) the record date, effective date or Expiration Time for any event that requires an adjustment to the Conversion Rate pursuant to Section 5.06(A) has occurred on or before the Conversion Date for such conversion, but an adjustment to the Conversion Rate for such event has not yet become effective as of such Conversion Date; |
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(iii) the Conversion Consideration due upon such conversion includes any whole shares of Common Stock; and |
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(iv) such shares are not entitled to participate in such event (because they were not held on the related record date or otherwise), |
then, solely for purposes of such conversion, the Company will, without duplication, give effect to such adjustment on such Conversion Date (and, for the avoidance of doubt, the shares issuable upon such conversion will not be entitled to participate in such event). In such case, if the date on which the Company is otherwise required to deliver the consideration due upon such conversion is before the first date on which the amount of such adjustment can be determined, then the Company will delay the settlement of such conversion until the second (2nd) Business Day after such first date.
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(D) Conversion Rate Adjustments where Converting Holders Participate in the Relevant Transaction or Event. Notwithstanding anything to the contrary in this Indenture or the Notes, if: |
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(i) a Conversion Rate adjustment for any dividend or distribution becomes effective on any Ex-Dividend Date pursuant to Section 5.06(A); |
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(ii) a Note is to be converted; |
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(iii) the Conversion Date for such conversion occurs on or after such Ex-Dividend Date and on or before the related record date; |
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(iv) the Conversion Consideration due upon such conversion includes any whole shares of Common Stock based on a Conversion Rate that is adjusted for such dividend or distribution; and |
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(v) such shares would be entitled to participate in such dividend or distribution (including pursuant to Section 5.02(C)), |
then (x) such Conversion Rate adjustment will not be given effect for such conversion; and (y) the shares of Common Stock issuable upon such conversion based on such unadjusted Conversion Rate will be entitled to participate in such dividend or distribution.
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(F) Limitation on Effecting Transactions Resulting in Certain Adjustments. The Company will not engage in or be a party to any transaction or event that would require the Conversion Rate to be adjusted pursuant to Section 5.06(A) or Section 5.08 to an amount that would result in the Conversion Price per share of Common Stock being less than the par value per share of Common Stock. |
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(H) Calculation of Number of Outstanding Shares of Common Stock. For purposes of Section 5.06(A), the number of shares of Common Stock outstanding at any time will (i) include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock; and (ii) exclude shares of Common Stock held in the Company’s treasury (unless the Company pays any dividend or makes any distribution on shares of Common Stock held in its treasury). |
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(I) Calculations. All calculations with respect to the Conversion Rate and adjustments thereto will be made to the nearest 1/10,000th of a share of Common Stock (with 5/100,000ths rounded upward to the nearest 1/10,000th), as applicable. |
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(J) Notice of Conversion Rate Adjustments. Upon the effectiveness of any adjustment to the Conversion Rate pursuant to Section 5.06(A), the Company will promptly send notice to the Holders, the Trustee and the Conversion Agent containing (i) a brief description of the transaction or other event on account of which such adjustment was made; (ii) the Conversion Rate in effect immediately after such adjustment; and (iii) the effective time of such adjustment. |
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(A) Generally. To the extent permitted by law and applicable stock exchange rules, the Company, from time to time, may (but is not required to) increase the Conversion Rate by any amount if (i) the Board of Directors determines that such increase is either (x) in the best interest of the Company; or (y) advisable to avoid or diminish any income tax imposed on holders of Common Stock or rights to purchase Common Stock as a result of any dividend or distribution of shares (or rights to acquire shares) of Common Stock or any similar event; (ii) such increase is in effect for a period of at least twenty (20) Business Days; and (iii) such increase is irrevocable during such period. |
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(B) Notice of Voluntary Increases. If the Board of Directors determines to increase the Conversion Rate pursuant to this Section 5.07, then, at least fifteen (15) Business Days before such increase, the Company will send notice to each Holder, the Trustee and the Conversion Agent of such increase, the amount thereof and the period during which such increase will be in effect. |
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Section 5.08. Adjustments to the Conversion Rate in Connection with a Make-Whole Fundamental Change. |
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|
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Stock Price |
|||||
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Effective Date |
$ 1.08
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$ 1.20
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$ 1.40
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$ 1.65
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$ 1.80
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$ 1.90
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$2.00 |
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November 14, 2019..... |
319.8653 | 227.2727 | 130.3680 | 65.8788 | 48.3838 | 34.8341 | 0.0000 |
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November 1, 2020....... |
319.8653 | 227.2727 | 130.3680 | 62.5455 | 47.4950 | 34.0973 | 0.0000 |
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November 1, 2021....... |
319.8653 | 227.2727 | 123.4394 | 60.4849 | 42.2727 | 30.0447 | 0.0000 |
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November 1, 2022....... |
319.8653 | 227.2727 | 108.2251 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
If such effective date or Stock Price is not set forth in the table above, then:
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(i) if such Stock Price is between two Stock Prices in the table above or the effective date is between two effective dates in the table above, then the number of Additional Shares will be determined by a straight-line interpolation between the numbers of Additional Shares set forth for the higher and lower Stock Prices in the table and the earlier and later effective dates in the table above, as applicable, based on a 365- or 366-day year, as applicable; and |
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(ii) if the Stock Price is greater than $2.00 (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above are adjusted pursuant to Section 5.08(B)), or less than $1.08 (subject to adjustment in the same manner), per share, then no Additional Shares will be added to the Conversion Rate. |
Notwithstanding anything to the contrary in this Indenture or the Notes, in no event will the Conversion Rate be increased to an amount that exceeds 925.9259 shares of Common Stock per $1,000 principal amount of Notes, which amount is subject to adjustment in the same manner as, and at the same time and for the same events for which, the Conversion Rate is required to be adjusted pursuant to Section 5.06(A).
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(D) Settlement of Cash Make-Whole Fundamental Changes. For the avoidance of doubt, if holders of Common Stock receive solely cash in a Make-Whole Fundamental Change, then, pursuant to Section 5.09, conversions of Notes will thereafter be settled no later than the third (3rd) Business Day after the relevant Conversion Date. |
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(i) recapitalization, reclassification or change of the Common Stock (other than (x) changes solely resulting from a subdivision or combination of the Common Stock, (y) a change only in par value or from par value to no par value or no par value to par value or (z) stock splits and stock combinations that do not involve the issuance of any other series or class of securities); |
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(ii) consolidation, merger, combination or binding or statutory share exchange involving the Company; |
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(iii) sale, lease or other transfer of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person; or |
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(iv) other similar event, |
and, as a result of which, the Common Stock is converted into, or is exchanged for, or represents solely the right to receive, other securities, cash or other property, or any combination of the foregoing (such an event, a “Common Stock Change Event,” and such other securities, cash or property, the “Reference Property,” and the amount and kind of Reference Property that a holder of one (1) share of Common Stock would be entitled to receive on account of such Common Stock Change Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property), a “Reference Property Unit”), then, notwithstanding anything to the contrary in this Indenture or the Notes,
(1)from and after the effective time of such Common Stock Change Event, (I) the Conversion Consideration due upon conversion of any Note will be determined in the same manner as if each reference to any number of shares of Common Stock in this Article 5 (or in any related definitions) were instead a reference to the same number of Reference Property Units; (II) for purposes of Section 5.04, each reference to any number of shares of Common Stock in such Section (or in any related definitions) will instead be deemed to be a reference to the same number of Reference Property Units; and (III) for purposes of the definition of “Fundamental Change” and “Make-Whole Fundamental Change,” the terms “Common Stock” and “common equity” will be deemed to mean the common equity, if any, forming part of such Reference Property; and
(2)for these purposes, the Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of a class of securities will be the fair value of such Reference Property Unit or portion thereof, as applicable, determined in good faith by the Company (or, in the case of cash denominated in U.S. dollars, the face amount thereof).
If the Reference Property consists of more than a single type of consideration to be determined based in part upon any form of stockholder election, then the composition of the Reference Property Unit will be deemed to be the weighted average, per share of the Common
- 54 -
Stock, of the types and amounts of consideration actually received, per share of the Common Stock, by the holders of Common Stock. The Company will notify Holders, the Trustee and the Conversion Agent of the weighted average as soon as practicable after such determination is made.
At or before the effective time of such Common Stock Change Event, the Company and the resulting, surviving or transferee Person (if not the Company) of such Common Stock Change Event (the “Successor Person”) will execute and deliver to the Trustee a supplemental indenture pursuant to Section 9.01(G), which supplemental indenture will (x) provide for subsequent conversions of Notes in the manner set forth in this Section 5.09; (y) provide for anti-dilution and other adjustments to the Conversion Rate pursuant to Section 5.08(A) that are as nearly as equivalent as possible to, and in a manner consistent with this Section 5.09; and (z) contain such other provisions as the Company reasonably determines are appropriate to preserve the economic interests of the Holders and to give effect to the provisions of this Section 5.09(A). If the Reference Property includes shares of stock or other securities or assets of a Person other than the Successor Person, then such other Person will also execute such supplemental indenture and such supplemental indenture will contain such additional provisions the Company reasonably determines are appropriate to preserve the economic interests of the Holders, including the right of Holders to require the Company to repurchase their Notes pursuant to Section 4.02 or 4.03, as the Board of Directors, acting in good faith and in a commercially reasonable manner, determines is necessary by reason of the foregoing.
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(B) Notice of Common Stock Change Events. The Company will provide notice of each Common Stock Change Event to Holders, the Trustee and the Conversion Agent no later than the effective date of such Common Stock Change Event. |
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(C) Compliance Covenant. The Company will not become a party to any Common Stock Change Event unless its terms are consistent with this Section 5.09. |
The Trustee and any other Conversion Agent will not at any time be under any duty or responsibility to any Holder to determine the Conversion Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment (including any increase) of the Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent will not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities, property or cash that may at any time be issued or delivered upon the conversion of any Note; and the Trustee and any other Conversion Agent make no representations with respect thereto. Neither the Trustee nor any Conversion Agent will be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or property or cash upon the surrender of any Note for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article. Neither the Trustee nor any other agent acting under this Indenture (other than the Company, if acting in such capacity) will have any obligation to make any calculation or to determine whether the Notes may be surrendered for conversion pursuant to this Indenture, or to notify the Company or the Depositary or any of the Holders if the Notes have become
- 55 -
convertible pursuant to the terms of this Indenture.
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(A) Notwithstanding anything to the contrary herein, no Person will be entitled to receive any shares of Common Stock otherwise deliverable upon conversion of the Notes to the extent, but only to the extent, that such receipt would cause such Person to become, directly or indirectly, a Beneficial Owner of more than 9.99% of the shares of the Common Stock outstanding at such time (such restriction, the “General Beneficial Ownership Limit”). For purposes of this Section 5.11 only, a Person will be deemed the “Beneficial Owner” of and will be deemed to beneficially own any shares of Common Stock that such Person or any of such person’s Affiliates (as defined in Rule 12b-2 under the Exchange Act) or associates (as defined in Rule 12b-2 under the Exchange Act) is deemed to beneficially own, together with any shares of Common Stock beneficially owned by any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act. Subject to the following proviso, for purposes of the this Section 5.11 only, beneficial ownership will be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder as in effect on the Issue Date; provided that the number of shares of Common Stock beneficially owned by such Person and its Affiliates and associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act will include the number of shares of Common Stock issuable upon exercise or conversion of any of the Company’s securities or rights to acquire the Common Stock, whether or not such securities or rights are currently exercisable or convertible or are exercisable or convertible only after the passage of time (including the number of shares of Common Stock issuable upon conversion of the Notes in respect of which the beneficial ownership determination is being made), but will exclude the number of shares of Common Stock that would be issuable upon (A) conversion of the remaining, unconverted portion of any Notes beneficially owned by such Person or any of its Affiliates or associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act and (B) exercise or conversion of the unexercised or unconverted portion of any of the Company’s other securities subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Person or any of its Affiliates or associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act. For the avoidance of doubt, the term “Beneficial Owner” as used in this Section 5.11 will not include (i) with respect to any Global Note, the nominee of the Depositary or any Person having an account with the Depositary or its nominee or (ii) with respect to any certificated Note, the Holder of such certificated Note unless, in each case, such nominee, account holder or Holder will also be a Beneficial Owner of such Note. |
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(B) In addition, a Holder at its option may elect a beneficial ownership limit as to such Holder (but not as to any other Holder) that is less than or equal to the general beneficial ownership limit then applicable to the Holders in general upon written notice delivered to the Company prior to the issuance of the Notes or, if thereafter, at least 61 days prior to the date of effectiveness of such lower beneficial ownership limit, specifying the percentage of shares of Common Stock for the beneficial ownership limit that will apply to such Holder (such beneficial ownership limit, a “Holder Beneficial Ownership Limit” and together with the general beneficial ownership limit, the “Beneficial Ownership Limits”). Written notices sent by Holders electing a Holder Beneficial |
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Ownership Limit pursuant to this Section 5.11(B) received prior to the Issue Date and the issuance of the Notes are listed on Schedule 1 to this Indenture. |
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(C) Any purported delivery of shares of Common Stock upon conversion of the Notes will be void and have no effect to the extent, but only to the extent, that such delivery would result in any Person becoming the Beneficial Owner of shares of Common Stock outstanding at such time in excess of the Beneficial Ownership Limits applicable to such Person. |
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(D) Unless the Company has waived the General Beneficial Ownership Limit as set forth in Section 5.11(F) and there is no Holder Beneficial Ownership Limit applicable to a Holder, when such Holder tenders Notes for conversion, that Holder must provide a certification to the Company as to whether the Person (or Persons) receiving shares of Common Stock upon conversion is, or would, as a result of such conversion, become the beneficial owner of shares of Common Stock outstanding at such time in excess of any beneficial ownership limit then applicable to such Person (or Persons). |
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(E) If any delivery of shares of Common Stock otherwise owed to any Person (or persons) upon conversion of the Notes is not made, in whole or in part, as a result of the applicable Beneficial Ownership Limits, the Company’s obligation to make such delivery will not be extinguished and, such Holder may either: |
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(i) unless such conversion is in connection with the Company’s exercise of the Company Mandatory Conversion Right, request the return of the Notes surrendered by such Holder for conversion, after which the Company will deliver such Notes to such Holder within two Trading Days after receipt of such request; or |
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(ii) certify to the Company that the Person (or persons) receiving shares of Common Stock upon conversion is not, and would not, as a result of such conversion, become the Beneficial Owner of shares of Common Stock outstanding at such time in excess of the applicable Beneficial Ownership Limits, after which the Company will deliver any such shares of Common Stock withheld on account of such applicable Beneficial Ownership Limits by the later of (i) the date such shares were otherwise due to such Person (or persons) and (ii) two Trading Days after receipt of such certification; provided, however, until such time as the affected Holder gives such notice, no Person will be deemed to be the stockholder of record with respect to the shares of Common Stock otherwise deliverable upon conversion in excess of any applicable Beneficial Ownership Limit. Upon delivery of such notice, the provisions under Sections 5.02 and 5.03 will apply to the shares of Common Stock to be delivered pursuant to such notice. |
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(F) The Company may, at their option with the approval of the Board of Directors and subject to the applicable listing standards of The Nasdaq Global Market, waive the General Beneficial Ownership Limit (as to a particular Person or as to all persons). In the event that the Company exercises its right to waive the General Beneficial Ownership Limit to all Persons, the Company or, at the Company’s written request and expense, the Trustee, will deliver or cause to be delivered to each Holder 61 days prior to the effective waiver date an irrevocable notice stating that as of an effective date specified therein, the Company waives any restrictions that limit a Holder from converting its Notes in the event that such Holder is, or would, as a result of a |
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conversion of Notes, become, a restricted converting Holder. Any such waiver of the General Beneficial Ownership Limit would not effect a waiver of any Holder Beneficial Ownership Limit. |
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(i) the resulting, surviving or transferee Person either (x) is the Company or (y) if not the Company, is a corporation (the “Successor Corporation”) duly organized and existing under the laws of the United States of America, any State thereof or the District of Columbia that expressly assumes (by executing and delivering to the Trustee, at or before the effective time of such Business Combination Event, a supplemental indenture pursuant to Section 9.01(F)) all of the Company’s obligations under this Indenture and the Notes, and Successor Corporation will take such action (or agree to take such action) and deliver such agreements, instruments, or documents as may be necessary or appropriate to cause any property or assets that constitute Collateral owned by or transferred to the Successor Corporation to be subject to the Liens of the Collateral Agent in the manner and to the extent required under this Indenture; and |
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(ii) immediately after giving effect to such Business Combination Event, no Default or Event of Default will have occurred and be continuing. |
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(B) Delivery of Officer’s Certificate and Opinion of Counsel to the Trustee and Collateral Agent. Before the effective time of any Business Combination Event, the Company will deliver to the Trustee and the Collateral Agent an Officer’s Certificate and Opinion of Counsel, each stating that (i) such Business Combination Event (and, if applicable, the related supplemental indenture) comply with Section 6.01(A) and Article 11; and (ii) all conditions precedent to such Business Combination Event provided in this Indenture have been satisfied. |
At the effective time of any Business Combination Event that complies with Section 6.01, the Successor Corporation (if not the Company) will succeed to, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Corporation had been named as the Company in this Indenture and the Notes, and, except in the case of a lease, the predecessor Company will be discharged from its obligations under this Indenture and the Notes.
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of the following: |
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(iv) a default in the Company’s obligation to convert a Note in accordance with Article 5 upon the exercise of the conversion right with respect thereto; |
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(vii) a default by the Company or any of its Subsidiaries with respect to any one or more mortgages, agreements or other instruments under which there is outstanding, or by which there is secured or evidenced, any indebtedness for money borrowed of at least five million dollars ($5,000,000) (or its foreign currency equivalent) in the aggregate of the Company or any of its Subsidiaries, whether such indebtedness exists as of the Issue Date or is thereafter created, where such default: |
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(1) constitutes a failure to pay the principal of, or premium or interest on, any of such indebtedness when due and payable at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise; or |
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(2) results in such indebtedness becoming or being declared due and payable before its stated maturity; |
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(viii) one or more final judgments being rendered against the Company or any of its Subsidiaries for the payment of at least five million dollars ($5,000,000) (or its foreign currency equivalent) in the aggregate (excluding any amounts covered by insurance), where such judgment is not discharged or stayed within sixty (60) days after (i) the date on which the right to appeal the same has expired, if no such appeal has commenced; or (ii) the date on which all rights to appeal have been extinguished; |
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(ix) the Company or any of its Significant Subsidiaries, pursuant to or within the meaning of any Bankruptcy Law, either: |
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(1) commences a voluntary case or proceeding; |
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(2) consents to the entry of an order for relief against it in an involuntary case or proceeding; |
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(4) makes a general assignment for the benefit of its creditors; |
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(5) takes any comparable action under any foreign Bankruptcy Law; or |
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(6) generally is not paying its debts as they become due; |
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(x) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that either: |
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(1) is for relief against Company or any of its Significant Subsidiaries in an involuntary case or proceeding; |
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(2) appoints a custodian of the Company or any of its Significant Subsidiaries, or for any substantial part of the property of the Company or any of its Significant Subsidiaries; |
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(3) orders the winding up or liquidation of the Company or any of its Significant Subsidiaries; or |
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(4) grants any similar relief under any foreign Bankruptcy Law, |
and, in each case under this Section 7.01(A)(x), such order or decree remains unstayed and in effect for at least sixty (60) consecutive days, or
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(xi) except as permitted by this Indenture, with respect to any assets or property having a fair market value of at least five million dollars ($5,000,000) (or its foreign currency equivalent), individually or in the aggregate, that constitutes, or under this Indenture is required to constitute, Collateral, (a) this Indenture will for any reason cease to be in full force and effect in all material respects, or the Company will so assert, or (b) any security interest created, or purported to be created, by this Indenture will cease to be enforceable and of the same effect and priority purported to be created thereby, if such default does not result from any unauthorized action by the Collateral Agent in express violation of any provision of this Indenture. |
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(B) Cause Irrelevant. Each of the events set forth in Section 7.01(A) will constitute an Event of Default regardless of the cause thereof or whether voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or |
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regulation of any administrative or governmental body. |
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(C) Rescission of Acceleration. Notwithstanding anything to the contrary in this Indenture or the Notes, the Holders of a majority in aggregate principal amount of the Notes then outstanding, by notice to the Company and the Trustee, may, on behalf of all Holders, rescind any acceleration of the Notes and its consequences if (i) such rescission would not conflict with any judgment or decree of a court of competent jurisdiction; and (ii) all existing Events of Default (except the non-payment of principal of, or interest on, the Notes that has become due solely because of such acceleration) have been cured or waived. No such rescission will affect any subsequent Default or impair any right consequent thereto. |
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(B) Amount and Payment of Special Interest. Any Special Interest that accrues on a Note pursuant to Section 7.03(A) will be payable on the same dates and in the same manner as the Stated Interest on such Note and will accrue at a rate per annum equal to one quarter of one percent (0.25%) of the principal amount thereof for the first ninety (90) days beginning on, and including, |
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the date on which such Reporting Event of Default first occurs and, thereafter, at a rate per annum equal to one half of one percent (0.50%) of the principal amount thereof. For the avoidance of doubt, any Special Interest that accrues on a Note will be in addition to the Stated Interest that accrues on such Note. |
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(C) Notice of Election. To make the election set forth in Section 7.03(A), the Company must send to the Holders, the Trustee and the Paying Agent, before the date on which each Reporting Event of Default first occurs, a notice that (i) briefly describes the report(s) that the Company failed to file with or furnish to the SEC; (ii) states that the Company is electing that the sole remedy for such Reporting Event of Default consist of the accrual of Special Interest; and (iii) briefly describes the periods during which and rate at which Special Interest will accrue and the circumstances under which the Notes will be subject to acceleration on account of such Reporting Event of Default. |
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(D) Notice to Trustee and Paying Agent; Trustee’s Disclaimer. If Special Interest accrues on any Note, then, no later than five (5) Business Days before each date on which such Special Interest is to be paid, the Company will deliver an Officer’s Certificate to the Trustee and the Paying Agent stating (i) that the Company is obligated to pay Special Interest on such Note on such date of payment; and (ii) the amount of such Special Interest that is payable on such date of payment. The Trustee will have no duty to determine whether any Special Interest is payable or the amount thereof. |
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(E) No Effect on Other Events of Default. No election pursuant to this Section 7.03 with respect to a Reporting Event of Default will affect the rights of any Holder with respect to any other Event of Default, including with respect to any other Reporting Event of Default. |
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(A) Trustee or the Collateral Agent May Pursue All Remedies. If an Event of Default occurs and is continuing, then the Trustee or the Collateral Agent may pursue any available remedy to collect the payment of any amounts due with respect to the Notes or to enforce the performance of any provision of this Indenture or the Notes. |
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(B) Procedural Matters. The Trustee or the Collateral Agent may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in such proceeding. A delay or omission by the Trustee, the Collateral Agent or any Holder in exercising any right or remedy following an Event of Default will not impair the right or remedy or constitute a waiver of, or acquiescence in, such Event of Default. All remedies will be cumulative to the extent permitted by law. |
An Event of Default pursuant to clause (i), (ii), (iv) or (vi) of Section 7.01(A) (that, in the case of clause (vi) only, results from a Default under any covenant that cannot be amended without the consent of each affected Holder), and a Default that could lead to such an Event of Default, can be waived only with the consent of each affected Holder. Each other Default or Event of Default may be waived, on behalf of all Holders, by the Holders of a majority in aggregate principal amount of the Notes then outstanding. If an Event of Default is so waived, then it will
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cease to exist. If a Default is so waived, then it will be deemed to be cured and any Event of Default arising therefrom will be deemed not to occur. However, no such waiver will extend to any subsequent or other Default or Event of Default or impair any right arising therefrom.
Holders of a majority in aggregate principal amount of the Notes then outstanding may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or the Collateral Agent or exercising any trust or power conferred on it. However, the Trustee and Collateral Agent, as the case may be, may refuse to follow any direction that conflicts with law, this Indenture or the Notes, or that, subject to Section 8.01, the Trustee determines may be unduly prejudicial to the rights of other Holders or may involve the Trustee or Collateral Agent in liability, unless the Trustee and Collateral Agent, as applicable, are offered, and if requested, provided security and indemnity satisfactory to each of the Trustee and Collateral Agent against any loss, liability or expense to the Trustee and Collateral Agent that may result from the Trustee’s and Collateral Agent’s following such direction.
No Holder may pursue any remedy with respect to this Indenture or the Notes (except to enforce (x) its rights to receive the principal of, or the Redemption Price, Fundamental Change Repurchase Price or Optional Repurchase Price for, or interest on, any Notes; or (y) the Company’s obligations to convert any Notes pursuant to Article 5), unless:
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(A) such Holder has previously delivered to the Trustee notice that an Event of Default is continuing; |
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(B) Holders of at least twenty five percent (25%) in aggregate principal amount of the Notes then outstanding have delivered a request to the Trustee to pursue such remedy; |
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(C) such Holder or Holders have offered and, if requested, provided to the Trustee security and indemnity satisfactory to the Trustee against any loss, liability or expense to the Trustee that may result from the Trustee’s following such request; |
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(D) the Trustee has not complied with such request within sixty (60) calendar days after its receipt of such request and such offer of security or indemnity; and |
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(E) during such sixty (60) calendar day period, Holders of a majority in aggregate principal amount of the Notes then outstanding have not delivered to the Trustee a direction that is inconsistent with such request. |
A Holder of a Note may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder. The Trustee will have no duty to determine whether any Holder’s use of this Indenture complies with the preceding sentence.
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Notwithstanding anything to the contrary in this Indenture or the Notes, the right of each Holder of a Note to receive payment or delivery, as applicable, of the principal of, or the Redemption Price, Fundamental Change Repurchase Price or Optional Repurchase Price for, or any interest on, or the Conversion Consideration due pursuant to Article 5 upon conversion of, such Note on or after the respective due dates therefor provided in this Indenture and the Notes, or to bring suit for the enforcement of any such payment or delivery on or after such respective due dates, will not be impaired or affected without the consent of such Holder.
The Trustee will have the right, upon the occurrence and continuance of an Event of Default pursuant to clause (i), (ii) or (iv) of Section 7.01(A), to recover judgment in its own name and as trustee of an express trust against the Company for the total unpaid or undelivered principal of, or Redemption Price, Fundamental Change Repurchase Price or Optional Repurchase Price for, or interest on, or Conversion Consideration due pursuant to Article 5 upon conversion of, the Notes, as applicable, and, to the extent lawful, any Default Interest on any Defaulted Amounts, and such further amounts sufficient to cover the costs and expenses of collection, including compensation provided for in Section 8.07.
The Trustee has the right to (A) file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee, the Collateral Agent and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes) or its creditors or property and (B) collect, receive and distribute any money or other property payable or deliverable on any such claims. Each Holder authorizes any custodian in such proceeding to make such payments to the Trustee, and, if the Trustee consents to the making of such payments directly to the Holders, to pay to the Trustee any amount due to the Trustee for the reasonable compensation, expenses, disbursements and advances of the Trustee, the Collateral Agent and their agents and counsel, and any other amounts payable to the Trustee and the Collateral Agent pursuant to Section 8.07. To the extent that the payment of any such compensation, expenses, disbursements, advances and other amounts out of the estate in such proceeding, is denied for any reason, payment of the same will be secured by a lien on, and will be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding (whether in liquidation or under any plan of reorganization or arrangement or otherwise). Nothing in this Indenture will be deemed to authorize the Trustee or the Collateral Agent to authorize, consent to, accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee or the Collateral Agent to vote in respect of the claim of any Holder in any such proceeding.
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The Trustee will pay or deliver in the following order any money or other property that it collects pursuant to this Article 7:
First:to the Trustee, the Collateral Agent or any Agent and their agents and attorneys for amounts due under Section 8.07, including payment of all fees, compensation, expenses and liabilities incurred, and all advances made, by the Trustee, the Collateral Agent or such Agent and the costs and expenses of collection;
Second:to Holders for unpaid amounts or other property due on the Notes, including the principal of, or the Redemption Price, Fundamental Change Repurchase Price or Optional Repurchase Price for, or any interest on, or any Conversion Consideration due upon conversion of, the Notes, ratably, and without preference or priority of any kind, according to such amounts or other property due and payable on all of the Notes; and
Third:to the Company or such other Person as a court of competent jurisdiction directs.
The Trustee may fix a record date and payment date for any payment or delivery to the Holders pursuant to this Section 7.11, in which case the Trustee will instruct the Company to, and the Company will, deliver, at least fifteen (15) calendar days before such record date, to each Holder and the Trustee a notice stating such record date, such payment date and the amount of such payment or nature of such delivery, as applicable.
In any suit for the enforcement of any right or remedy under this Indenture or the Notes or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court, in its discretion, may (A) require the filing by any litigant party in such suit of an undertaking to pay the costs of such suit, and (B) assess reasonable costs (including reasonable attorneys’ fees) against any litigant party in such suit, having due regard to the merits and good faith of the claims or defenses made by such litigant party; provided, however, that this Section 7.12 does not apply to any suit by the Trustee, any suit by a Holder pursuant to Section 7.08 or any suit by one or more Holders of more than ten percent (10%) in aggregate principal amount of the Notes then outstanding.
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(i) The Trustee need perform only those duties that are specifically set forth in this Indenture, and no covenants or obligations will be implied in this Indenture against the Trustee. |
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(C) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: |
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(ii) The Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts. |
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(iii) The Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Sections 7.02, 7.05 and 7.06. |
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(E) Whether or not therein expressly so provided, paragraphs (A), (B), (C) and (D) of this Section 8.01 will govern every provision of this Indenture that in any way relates to the Trustee. |
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(A) Subject to Section 8.01: |
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(iii) The Trustee may act through agents and attorneys, and will not be responsible for the misconduct or negligence of any agent appointed by it with due care. |
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(iv) The Trustee will not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers. |
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(ix) The permissive right of the Trustee to act hereunder will not be construed as a duty. |
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(x) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to the Trustee in each of its capacities hereunder (including, without limitation, the Paying Agent, the Registrar, the Conversion Agent and the Collateral Agent. |
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(xi) In no event will 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. |
The Trustee and the Collateral Agent, as applicable, in its individual or any other capacity may become the owner or pledgee of Notes, and may make loans to, accept deposits from, perform services for or otherwise deal with the Company, or any Affiliate thereof, with the same rights it would have if it were not Trustee or the Collateral Agent, as applicable. Any Agent may do the same with like rights. The Trustee, however, will be subject to Sections 8.10 and 8.11.
The Trustee makes no representation as to the validity or adequacy of this Indenture or the Notes (except that the Trustee represents that it is duly authorized to execute and deliver this Indenture and authenticate the Notes and perform its obligations hereunder), and the Trustee will not be accountable for the Company’s use of the proceeds from the sale of Notes or any money paid to the Company pursuant to the terms of this Indenture, and the Trustee will not be responsible for any statement in the Notes other than its certificates of authentication.
If a Default or an Event of Default occurs and is continuing, and if it is actually known to the Trustee, the Trustee will send to each Holder notice of the Default or the Event of Default, as the case may be, within 90 days after it occurs or, if later, as soon as practicable after a Responsible Officer of the Trustee has actual knowledge of such Default or Event of Default (except if such Default or Event of Default has been validly cured or waived before the giving of such notice). Except in the case of a Default or an Event of Default in payment of the principal of, or interest or premium, if any, on, any Note, or an Event of Default arising from the failure to deliver the consideration due upon conversion of any Note, the Trustee may withhold the notice if and so long as the Trustee in good faith determines that withholding the notice is in the interests of the Holders.
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(A) The Company will pay to each of the Trustee and the Collateral Agent from time to time compensation for its services as agreed to from time to time in writing between the Company, the Trustee and the Collateral Agent. The Trustee’s and the Collateral Agent’s compensation will not be limited by any provision of law on compensation of a trustee of an express trust. The Company will reimburse the Trustee and the Collateral Agent within 45 days after receipt of request for all reasonable out-of-pocket disbursements and expenses incurred or made by it in connection with its duties under this Indenture, including the reasonable compensation, disbursements and expenses of the Trustee’s and the Collateral Agent’s agents and |
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counsel. |
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(B) The Company will indemnify the Trustee, the Collateral Agent, their respective officers, directors, employees and agents for, and hold the Trustee and the Collateral Agent harmless against, any and all loss or liability incurred by them in connection with the acceptance or performance of their respective duties under this Indenture and the Intercreditor Agreement, including the reasonable fees, costs and out-of-pocket expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The Trustee or the Collateral Agent, as applicable, will notify the Company promptly of any claim asserted against the Trustee or the Collateral Agent, as applicable, for which it may seek indemnity. |
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(C) The failure by the Trustee or the Collateral Agent to so notify the Company will not however relieve the Company of its obligations. Notwithstanding the foregoing, the Company need not reimburse the Trustee or the Collateral Agent for any expense or indemnify them against any loss or liability incurred by the Trustee or the Collateral Agent through its negligence or willful misconduct. To secure the payment obligations of the Company in this Section 8.07, the Trustee and the Collateral Agent will have a lien prior to the Notes on all money or property held or collected by the Trustee and the Collateral Agent, except such money or property held in trust to pay the principal of, interest and premium, if any, on particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture. |
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(D) When the Trustee or the Collateral Agent incurs expenses or renders services after an Event of Default specified in Section 7.01(A)(ix) or (x) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law. |
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(E) For purposes of this Section 8.07, the term “Trustee” will include any trustee appointed pursuant to this Article 8 and the term “Collateral Agent” will include any collateral agent appointed pursuant to Article 11. |
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(A) The Trustee may resign by so notifying the Company in writing at least 30 days in advance of such resignation. |
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(B) The Holders of a majority in principal amount of the outstanding Notes may remove the Trustee by notifying the Trustee in writing and may appoint a successor Trustee with the consent of the Company, which consent will not be unreasonably withheld. The Company may remove the Trustee at its election if: |
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entered with respect to the Trustee, under any Bankruptcy Law; |
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(C) If the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, the Company will promptly appoint a successor Trustee. |
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(D) If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least 10% in principal amount of the outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee. |
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(E) If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 8.10, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. |
If the Trustee, Collateral Agent or any Note Agent, consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust assets to, another corporation, subject to Section 8.10, the successor corporation without any further act will be the successor Trustee, Collateral Agent or Note Agent, as the case may be.
This Indenture will always have a Trustee who is an entity organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, who is subject to supervision or examination by federal or state authorities and who will have a combined capital and surplus of at least $100,000,000 as set forth in its most recent published annual report of condition.
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(A) The Company will cause each Paying Agent other than the Trustee to execute and deliver to it and the Trustee an instrument in which such agent will agree with the Trustee, subject to the provisions of this Section 8.12: |
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(iii) that it will give the Trustee written notice within three Business Days after any failure of the Company (or by any obligor on the Notes) in the payment of any installment of the principal of, or interest or premium, if any, on, the Notes when the same will be due and payable. |
References to the Trustee in Sections 7.10, 8.02, 8.03, 8.04, 8.07, 8.08 and 8.09 and the protections but not duties of 8.01 will be understood to include the Trustee when acting in other capacities under this Indenture and the Notes, including, without limitation, as Collateral Agent, Paying Agent, Registrar and Conversion Agent. Without limiting the foregoing, and for the avoidance of doubt, such Sections will be read to apply to the Collateral Agent, and any other document to which the Collateral Agent is party, mutatis mutandis, in addition to this Indenture, and the Collateral Agent will be entitled to the same rights, benefits, privileges, powers, protections, indemnities and exculpations (but not duties) afforded to the Trustee by such Sections. The privileges, protections, rights, indemnities and exculpatory provisions contained in this Indenture and the Notes will apply to the Trustee, acting in any capacity under this Indenture and the Notes (and without limiting the foregoing, the Trustee will be entitled to the same privileges, protections, rights, indemnities and exculpations afforded to the Collateral Agent under this Indenture, the Intercreditor Agreement and any other document to which the Collateral Agent is party), which will survive satisfaction and discharge or the termination for any reason of this Indenture or the Notes and the resignation or removal of the Trustee.
Notwithstanding anything to the contrary in Section 9.02, the Company, the Trustee and the Collateral Agent may amend or supplement this Indenture, the Notes or the Intercreditor Agreement without the consent of any Holder to:
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(A) cure any ambiguity or correct any omission, defect or inconsistency in this Indenture, the Notes or the Intercreditor Agreement (as determined in good faith by the Company); |
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(C) add additional assets as Collateral, release Collateral from the Lien pursuant to this Indenture and the Intercreditor Agreement when permitted or required by this Indenture or the |
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Intercreditor Agreement and to modify this Indenture and/or the Intercreditor Agreement to secure additional indebtedness and other obligations and add additional secured creditors; |
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(D) make, complete or confirm any grant of Collateral permitted or required by this Indenture; |
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(E) add to the Company’s covenants or Events of Default for the benefit of the Holders or surrender any right or power conferred on the Company; |
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(F) provide for the assumption of the Company’s obligations under this Indenture or the Notes pursuant to, and in compliance with, Article 6; |
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(G) enter into supplemental indentures pursuant to, and in accordance with, Section 5.09 in connection with a Common Stock Change Event; |
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(H) evidence or provide for the acceptance of the appointment, under this Indenture, of a successor Trustee or Collateral Agent; |
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(I) provide for or confirm the issuance of additional Notes pursuant to Section 2.02; |
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(J) to appropriately include in the Intercreditor Agreement any refinancing indebtedness in respect of the Senior Credit Agreement (including, without limitation, the holders and agents or trustees thereof and the Liens securing the indebtedness evidenced thereby); or |
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(K) make any other change to this Indenture, the Notes or the Intercreditor Agreement that does not, individually or in the aggregate with all other such changes, adversely affect the rights of the Holders, as such, in any material respect (as determined by the Company in good faith). |
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(v) impair the rights of any Holder set forth in Section 7.08 (as such Section is in effect on the Issue Date); |
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(vi) change the ranking of the Notes; |
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(vii) make any note payable in money, or at a place of payment, other than that stated in this Indenture or the Note; |
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(viii) reduce the amount of Notes whose Holders must consent to any amendment, supplement, waiver or other modification; or |
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(ix) make any direct or indirect change to any amendment, supplement, waiver or modification provision of this Indenture or the Notes that requires the consent of each affected Holder. |
For the avoidance of doubt, pursuant to clauses (i), (ii), (iii) and (iv) of this Section 9.02(A), no amendment or supplement to this Indenture or the Notes, or waiver of any provision of this Indenture or the Notes, may change the amount or type of consideration due on any Note (whether on an Interest Payment Date, Redemption Date, Fundamental Change Repurchase Date, Optional Repurchase Date or the Maturity Date or upon conversion, or otherwise), or the date(s) or time(s) such consideration is payable or deliverable, as applicable, without the consent of each affected Holder.
In addition, any amendment to, or waiver of, the provisions of this Indenture relating to the Collateral that has the effect of releasing all or substantially all of the Collateral from the Liens securing the Notes will require the consent of the Holders of at least 66-2/3% in aggregate principal amount of the Notes then outstanding.
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(B) Holders Need Not Approve the Particular Form of any Amendment. A consent of any Holder pursuant to this Section 9.02 need approve only the substance, and not necessarily the particular form, of the proposed amendment, supplement or waiver. |
As soon as reasonably practicable after any amendment, supplement or waiver pursuant to Section 9.01 or 9.02 becomes effective, the Company will send to the Holders notice that (A) describes the substance of such amendment, supplement or waiver in reasonable detail and (B) states the effective date thereof. The failure to send, or the existence of any defect in, such notice will not impair or affect the validity of such amendment, supplement or waiver.
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consenting Holder’s Note, subject to the right of any Holder of a Note to revoke (if not prohibited pursuant to Section 9.04(B)) any such consent with respect to such Note by delivering notice of revocation to the Trustee before the time such amendment, supplement or waiver becomes effective. |
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(C) Solicitation of Consents. For the avoidance of doubt, each reference in this Indenture or the Notes to the consent of a Holder will be deemed to include any such consent obtained in connection with a repurchase of, or tender or exchange offer for, any Notes. |
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(D) Effectiveness and Binding Effect. Each amendment, supplement or waiver pursuant to this Article 9 will become effective in accordance with its terms and, when it becomes effective with respect to any Note (or any portion thereof), will thereafter bind every Holder of such Note (or such portion). |
If any amendment, supplement or waiver changes the terms of a Note, then the Trustee or the Company may, in its discretion, require the Holder of such Note to deliver such Note to the Trustee so that the Trustee may place an appropriate notation prepared by the Company on such Note and return such Note to such Holder. Alternatively, at its discretion, the Company may, in exchange for such Note, issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, a new Note that reflects the changed terms. The failure to make any appropriate notation or issue a new Note pursuant to this Section 9.05 will not impair or affect the validity of such amendment, supplement or waiver.
The Trustee and the Collateral Agent will execute and deliver any amendment or supplemental indenture to this Indenture, the Notes or the Intercreditor Agreement authorized pursuant to this Article 9; provided, however, that the Trustee and the Collateral Agent need not (but may, in its sole and absolute discretion) execute or deliver any such amendment or supplemental indenture that adversely affects the Trustee’s or the Collateral Agent’s rights, duties, liabilities or immunities. In executing any amendment or supplemental indenture, the Trustee and the Collateral Agent will be entitled to receive, and (subject to Sections 8.01 and 8.02) will be fully protected in relying on, an Officer’s Certificate and an Opinion of Counsel stating that (A) the execution and delivery of such amendment or supplemental indenture is authorized or
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permitted by this Indenture; and (B) in the case of the Opinion of Counsel, such amendment or supplemental indenture is valid, binding and enforceable against the Company in accordance with its terms.
This Indenture will be discharged with respect to the Notes, and will cease to be of further effect as to all Notes issued under this Indenture, when:
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(A) all Notes then outstanding (other than Notes replaced pursuant to Section 2.16) have (i) been delivered to the Trustee for cancellation; or (ii) become due and payable (whether on a Redemption Date, a Fundamental Change Repurchase Date, an Optional Repurchase Date, the Maturity Date, upon conversion or otherwise) for an amount of cash or Conversion Consideration, as applicable, that has been fixed; |
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(B) the Company has caused there to be irrevocably deposited with the Trustee, or with the Paying Agent (or, with respect to Conversion Consideration, the Conversion Agent or its designee), in each case for the benefit of the Holders, or has otherwise caused there to be delivered to the Holders, cash (or, with respect to Notes to be converted, Conversion Consideration) sufficient to satisfy all amounts or other property due on all Notes then outstanding (other than Notes replaced pursuant to Section 2.16); |
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(C) the Company has paid all other amounts payable by it under this Indenture; and |
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(D) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that the conditions precedent to the discharge of this Indenture have been satisfied; |
provided, however, that Section 8.07, Section 11.11(H) and Section 12.01 will survive such discharge and, until no Notes remain outstanding, Section 2.15 and the obligations of the Trustee, the Paying Agent and the Conversion Agent with respect to money or other property deposited with them will survive such discharge.
At the Company’s request, the Trustee will acknowledge the satisfaction and discharge of this Indenture.
Subject to applicable unclaimed property law, the Trustee, the Paying Agent and the Conversion Agent will promptly notify the Company if there exists (and, at the Company’s request, promptly deliver to the Company) any cash, Conversion Consideration or other property held by any of them for payment or delivery on the Notes that remain unclaimed two (2) years after the date on which such payment or delivery was due. After such delivery to the Company, the Trustee, the Paying Agent and the Conversion Agent will have no further liability to any Holder with respect to such cash, Conversion Consideration or other property, and Holders entitled to the
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payment or delivery of such cash, Conversion Consideration or other property must look to the Company for payment as a general creditor of the Company.
If the Trustee, the Paying Agent or the Conversion Agent is unable to apply any cash or other property deposited with it pursuant to Section 10.01 or 10.04 hereof because of any legal proceeding or any order or judgment of any court or other governmental authority that enjoins, restrains or otherwise prohibits such application, then the Company’s obligations under this Indenture and the Notes will be revived and reinstated as though no deposit had occurred pursuant to Section 10.01 or 10.04 hereof; provided, however, that if the Company thereafter pays or delivers any cash or other property due on the Notes to the Holders thereof, then the Company will be subrogated to the rights of such Holders to receive such cash or other property from the cash or other property, if any, held by the Trustee, the Paying Agent or the Conversion Agent, as applicable.
If:
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(C) the Company has instructed the Trustee, the Paying Agent or the Conversion Agent, as applicable, to pay or deliver cash or other property due on the Notes from the cash or other property deposited pursuant to clauses (A) and (B) above as the same becomes due; |
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(D) as of the time of the deposits referred to in clauses (A) and (B) above, no Default in the payment or delivery of any amount or property (including Conversion Consideration) on any Note has occurred and is continuing; |
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(E) the Company has delivered to the Trustee an Opinion of Counsel confirming that the Holders of the Notes will not recognize any income, gain or loss for federal income tax |
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purposes as a result of the Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times, as would have been the case if the Covenant Defeasance had not occurred; |
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(F) the Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture, but solely in connection with the incurrence of any indebtedness for borrowed money to finance the Covenant Defeasance) to which the Company is a party or by which the Company is bound; |
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(G) the Company has delivered to the Trustee an Officer’s Certificate stating that the deposits referred to in clauses (A) and (B) above were not made by the Company with the intent of preferring the Holders over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others; and |
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(H) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Covenant Defeasance have been complied with, |
then, notwithstanding anything to the contrary in the Indenture or the Notes:
(i)the Company shall be released from its obligations under the covenant contained in Section 3.07 hereof and Article 11 hereof with respect to the outstanding Notes and, for the avoidance of doubt, any omission to comply with any of such Sections or Articles (whether directly or indirectly, by reason of any reference elsewhere in this Indenture to any of such Sections or Articles or by reason of any reference in any such Section or Article to any other provision of this Indenture or in any other document) will not in itself constitute a Default or Event of Default.
For the avoidance of doubt, the remainder of this Indenture and the Notes will be unaffected by any Covenant Defeasance and will continue to be in full force and effect.
Each of the Trustee, the Paying Agent and the Conversion Agent will return to the Company any cash or other property deposited with it pursuant to clause (A) or (B) above that remains on deposit after (x) all Notes have been paid in full and none remain outstanding; and (y) the Company has paid all other amounts payable by it under this Indenture.
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(B) Each Holder, by its acceptance of a Note, consents and agrees to the terms of this Indenture, as the same may be in effect or may be amended from time to time in accordance with its respective terms, and authorizes and directs the Collateral Agent, on behalf of the Notes Secured Parties, to enter into this Indenture, the Intercreditor Agreement and the other documents to which the Collateral Agent is party and to perform its obligations and exercise its rights thereunder in accordance therewith. The Company will do, at its sole cost and expense, all such actions and things as may be required by the provisions of this Indenture and the Intercreditor Agreement to assure and confirm to the Collateral Agent the security interests in the Collateral contemplated by this Indenture and the Intercreditor Agreement, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Notes secured hereby, according to the intent and purpose herein and therein expressed and subject to the Intercreditor Agreement, if any, including taking all commercially reasonable actions required to cause this Indenture to create and maintain, as security for the Obligations contained in this Indenture valid and enforceable, perfected (to the extent required herein) security interests in and on all the Collateral, in favor of the Collateral Agent, superior to and prior to the rights of all third Persons other than as set forth in the Intercreditor Agreement, if any, and subject to no other Liens, in each case, except as expressly provided herein or therein. If required for the purpose of meeting the legal requirements of any jurisdiction in which any of the Collateral may at the time be located, the Company, the Trustee and the Collateral Agent will have the power to appoint, and will take |
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all reasonable action to appoint, one or more Persons approved by the Trustee and reasonably acceptable to the Company to act as co-Collateral Agent with respect to any such Collateral, with such rights and powers limited to those deemed necessary for the Company, the Trustee or the Collateral Agent to comply with any such legal requirements with respect to such Collateral, and which rights and powers will not be inconsistent with the provisions of this Indenture or the Intercreditor Agreement. The Company will from time to time promptly file or cause the filing of all appropriate UCC financing statements (including any necessary amendments and continuation statements) and pay all reasonable financing and continuation statement recording and/or filing fees, charges and taxes relating to this Indenture and any amendments hereto and any other instruments of further assurance required pursuant hereto |
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(C) The Company will not change its corporate name or legal form or jurisdiction of formation without executing, delivering and filing any necessary financing statements, amendments or continuation statements in connection with any such change in corporate name, legal form or jurisdiction of formation. |
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(A) The Liens on the Collateral will be automatically and unconditionally released with respect to the Notes: |
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(i) in whole, upon payment in full of the principal of, together with accrued and unpaid interest and premium, if any, on, the Notes and all other Obligations under this Indenture and the Notes that are non-contingent and due and payable at or prior to the time such principal, together with accrued and unpaid interest and premium, if any, is paid; |
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(ii) in whole, upon satisfaction and discharge of this Indenture as set forth in Article 10 hereof; |
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(iii) in whole, upon a Covenant Defeasance as set forth in Article 10 hereof; |
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(iv) as to any property or assets constituting Collateral (a) that is sold or otherwise disposed of by the Company in a transaction not prohibited by this Indenture, to the extent of the interest sold or disposed of; or (b) that at any time no longer constitutes Collateral; |
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(v) that is released under the Senior Credit Agreement (including after giving effect to any amendment, waiver or consent, but excluding payment under or the termination or repayment in full of the Senior Credit Agreement (it being understood that, in each case, a release subject to a contingent reinstatement is still a release, and if any such Collateral under the Senior Credit Agreement is so reinstated, such Collateral will also be reinstated with respect to the Notes)); |
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(vi) to the extent required by the terms of the Intercreditor Agreement; and |
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(vii) as described in Article 9 hereof. |
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provided, that, in the case of any release in whole pursuant to clauses (i) and (ii) above, all amounts owing to the Trustee and the Collateral Agent under this Indenture, the Notes, and the Intercreditor Agreement have been paid.
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(B) To the extent applicable, the Company will furnish to the Trustee and the Collateral Agent, prior to each proposed release of Collateral pursuant to the Intercreditor Agreement and this Indenture: |
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(i) an Officer’s Certificate requesting such release, including a statement to the effect that such release is permitted or required by this Indenture and that any requirements for such release have been satisfied; |
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(ii) a form of such release (which release will be in form reasonably satisfactory to the Trustee and will provide that the requested release is without recourse or warranty to the Trustee or the Collateral Agent); and |
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(iii) all documents required by this Indenture and the Intercreditor Agreement. |
Notwithstanding anything to the contrary, an Opinion of Counsel will not be required in connection with the release of any Collateral permitted by this Indenture. Neither the Trustee nor the Collateral Agent will have any liability to any person for releases granted in accordance with
the Officer’s Certificate delivered under this Section.
Upon compliance by the Company with the conditions precedent set forth above, the Collateral Agent will promptly execute and deliver, without recourse or warranty and at the Company’s sole cost and expense, such documents reasonably requested by the Company to evidence the release of the Collateral Agent’s security interest in the released Collateral.
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(C) The release of any Collateral in accordance with the terms of this Indenture will not be deemed to impair the collateral security remaining under this Indenture in contravention of the provisions hereof. |
No purchaser or grantee of any property or rights purporting to be released herefrom will be bound to ascertain the authority of the Trustee or the Collateral Agent to execute the release or to inquire as to the existence of any conditions herein prescribed for the exercise of such authority; nor will any purchaser or grantee of any property or rights permitted by this Indenture to be sold or otherwise disposed of by the Company be under any obligation to ascertain or inquire into the authority of the Company to make such sale or other disposition.
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Wilmington Trust, National Association is hereby appointed Collateral Agent and hereby accepts such appointment. Subject to the provisions of this Indenture, each Holder, by acceptance of its Note(s) agrees that (a) the Collateral Agent will execute and deliver this Indenture and act in accordance with the terms hereof, (b) the Collateral Agent may (but will not be obligated to), in its sole discretion and without the consent of the Trustee or the Holders, take all actions it deems necessary or appropriate in order to (i) enforce any of the terms of this Indenture relating to the Collateral and (ii) collect and receive any and all amounts payable in respect of the Obligations of the Company hereunder and (c) to the extent permitted by this Indenture, the Collateral Agent will have power to institute and to maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Collateral by any act that may be unlawful or in violation of this Indenture, and suits and proceedings as the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Trustee and the Holders in the Collateral (including the power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest thereunder or be prejudicial to the interests of the Collateral Agent, the Holders or the Trustee). Notwithstanding the foregoing, the Collateral Agent may, at the sole expense of the Company, request the direction of the Holders or the Trustee with respect to any such actions and, upon receipt of the written consent of the Holders of at least a majority in aggregate principal amount of the outstanding Notes accompanied by, if requested, indemnity satisfactory to the Collateral Agent, will take such actions; provided that all actions so taken will, at all times, be in conformity with the requirements of the Intercreditor Agreement. Notwithstanding any provision to the contrary in this Indenture, the Collateral Agent will not have any duties or responsibilities except those expressly set forth herein, or any fiduciary relationship with any Holder, and no implied covenants, functions, responsibilities, duties, obligations or liabilities will be read into this Indenture or otherwise exist against the Collateral Agent.
The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed hereunder and to the extent not prohibited under the Intercreditor Agreement for turnover to the Trustee to make further distributions of such funds in accordance with the provisions of Section 7.11 and the other provisions of this Indenture.
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(A) By their acceptance of the Notes, the Holders hereby (i) authorize and direct the Trustee and the Collateral Agent, as the case may be, to execute and deliver the Intercreditor Agreement (on behalf of the Collateral Agent, the Trustee and the Holders), including such changes from the form, if any attached to this Indenture or any other agreement, as may be necessary or desirable in connection with the execution thereof, and including any amendments contemplated by the terms thereof, and (ii) authorize and appoint the Collateral Agent to act as the Notes Collateral Agent (as defined in the Intercreditor Agreement) under the Intercreditor Agreement, and agree that as such it will be deemed to be a party to the Intercreditor Agreement |
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as agent for the Holders, (iii) accept and acknowledge the terms of the Intercreditor Agreement, (iv) appoint and authorize the Collateral Agent, as Collateral Agent for itself, the Trustee and the Holders under the Intercreditor Agreement, to take such action as agent on their behalf and to exercise such powers under the Intercreditor Agreement as are delegated to the Collateral Agent by the terms thereof, and (v) accept and acknowledge the terms of the Intercreditor Agreement applicable to them and agree to be bound by the terms thereof applicable to holders of the Notes with all the rights and obligations of a Notes Secured Party thereunder and bound by all the provisions thereof. |
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(B) It is hereby expressly acknowledged and agreed that, in taking the foregoing actions, the Trustee and the Collateral Agent are not responsible for the terms or contents of such agreements, or for the validity or enforceability thereof, or the sufficiency thereof for any purpose. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under pursuant to, the Intercreditor Agreement, the Trustee and the Collateral Agent each will have all of the rights, immunities, indemnities and other protections granted to them under this Indenture (in addition to those that may be granted to them under the terms of such other agreement or agreements). |
The Company will from time to time execute, deliver and file any UCC financing statements, continuation statements and amendments thereto necessary to perfect the Collateral Agent’s Lien on the Collateral. The Company will from time to time procure any instruments or documents as may be reasonably requested by the Collateral Agent, and take all further action that may be necessary, or that the Collateral Agent may reasonably request, to perfect and protect the Liens granted hereby and thereby. In addition, and for such purposes only, the Company hereby authorizes the Collateral Agent to execute and deliver on behalf of the Company and to file such UCC financing statements (including an indication that the financing statement covers “all assets or all personal property” of the Company in accordance with Section 9-504 of the UCC), continuation statements and amendments thereto without the signature of the Company either in the Collateral Agent’s name or in the name of the Collateral Agent as agent and attorney-in-fact for the Company. Notwithstanding the grant of authority under this Section 11.10, neither the Trustee nor the Collateral Agent will have any duty to file or record any financing statement, continuation statement, collateral assignment, notice, control agreement, security agreement or any other document.
(A)The Collateral Agent will act pursuant to the instructions of the Holders and the Trustee with respect to the Collateral. For the avoidance of doubt, the Collateral Agent will have no discretion under this Indenture or the Intercreditor Agreement and will not be required to make or give any determination, consent, approval, request or direction without the written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes or the Trustee, as applicable. After the occurrence of an Event of Default, subject to the provisions of the Intercreditor Agreement, the Trustee may (but will not be obligated to) direct the Collateral Agent in connection with any action required or permitted by this Indenture.
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(B)None of the Collateral Agent or any of its Affiliates will be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct).
(C)Other than in connection with a release of Collateral permitted under Section 11.02 or as may be required by Section 9.02, in each case that the Collateral Agent may or is required hereunder to take any action (an “Action”), including without limitation to make any determination, to give consents, to exercise rights, powers or remedies, to release or sell Collateral or otherwise to act hereunder, the Collateral Agent may seek direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes. The Collateral Agent will not be liable with respect to any Action taken or omitted to be taken by it in accordance with the direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes. If the Collateral Agent will request direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes with respect to any Action, the Collateral Agent will be entitled to refrain from such Action until the Collateral Agent will have received direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes, and the Collateral Agent will not incur liability to any Person by reason of so refraining.
(D)Beyond the exercise of reasonable care in the custody of the collateral in its possession, the Collateral Agent will have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent will be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property, and the Collateral Agent will not be liable or responsible for any loss or diminution in the value of any of the Collateral by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith.
(E)Neither the Trustee nor the Collateral Agent will be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Collateral Agent, as determined by a court of competent jurisdiction in a final, nonappealable order, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of any grantor to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Trustee and Collateral Agent hereby disclaim any representation or warranty to the present and future Holders of Notes concerning the perfection of the liens granted hereunder or in the value of any of the Collateral.
(F)In the event that the Collateral Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Collateral Agent’s sole discretion may cause the Collateral Agent, as applicable, to be considered an “owner or operator” under any environmental laws or otherwise cause the Collateral Agent to incur, or be exposed to,
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any environmental liability or any liability under any other federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, either to resign as Collateral Agent or to arrange for the transfer of the title or control of the asset to a court appointed receiver. The Collateral Agent will not be liable to any Person for any environmental claims or any environmental liabilities or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any hazardous materials into the environment.
(G)The Collateral Agent will be entitled to all of the protections, immunities, indemnities, rights and privileges of the Trustee set forth in this Indenture.
(H)The Collateral Agent will be entitled to compensation, reimbursement and indemnity as set forth in Section 8.07.
(I)The Collateral Agent will not be deemed to have knowledge of any fact or matter (including, without limitation, a Default or Event of Default) unless such fact or matter is actually
known to a Responsible Officer of the Collateral Agent.
(A)General.Upon and during the continuance of any one or more Events of Default, (i) Collateral Agent may (but will not be obligated to) sign and file in the Company’s name any and all collateral assignments, notices, control agreements, security agreements and other documents with respect to the Collateral that it deems necessary or appropriate to perfect or protect the repayment of the Obligations, and in furtherance thereof, the Company hereby grants Collateral Agent an irrevocable power of attorney coupled with an interest, and (ii) Collateral Agent may (but will not be obligated to) notify any of the Company’s account debtors to make payment directly to Collateral Agent, compromise the amount of any such account on the Company’s behalf and endorse Collateral Agent’s name without recourse on any such payment for deposit directly to Collateral Agent’s account. Upon and during the continuance of any one or more Events of Default, Collateral Agent may (but will not be obligated to), and at the direction of the Trustee acting upon the written direction of the Holders of a majority in aggregate principal amount of the Notes then outstanding, as provided in Section 7.06, will, exercise all rights and remedies with respect to the Collateral under this Indenture or the Intercreditor Agreement, or otherwise available to it under the UCC and other applicable law, including the right to release, hold, sell, lease, liquidate, collect, realize upon, or otherwise dispose of all or any part of the Collateral and the right to occupy, utilize, process and commingle the Collateral. The Collateral Agent will exercise rights and remedies and sell the Collateral in accordance with this Indenture and the Intercreditor Agreement only at the direction of the Trustee acting upon the written direction of the Holders of a majority in aggregate principal amount of the Notes then outstanding, as provided in Section 7.06. All Collateral Agent’s rights and remedies will be cumulative and not exclusive.
(B)Collection; Foreclosure.Upon the occurrence and during the continuance of any Event of Default, Collateral Agent may (but will not be obligated to), and at the direction of the Trustee acting upon the written direction of the Holders of a majority in aggregate principal
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amount of the Notes then outstanding, as provided in Section 7.06, will, at any time or from time to time, apply, collect, liquidate, sell in one or more sales, lease or otherwise dispose of, any or all of the Collateral, in its then condition or following any commercially reasonable preparation or processing. Any such sale may be made either at public or private sale at its place of business or elsewhere. The Company agrees that any such public or private sale may occur upon ten (10) calendar days’ prior written notice to the Company. Upon the occurrence and during the continuance of any Event of Default, Collateral Agent may (but will not be obligated to) require the Company to assemble the Collateral and make it available to Collateral Agent at a place designated by Collateral Agent that is reasonably convenient to Collateral Agent and the Company. The proceeds of any sale, disposition or other realization upon all or any part of the Collateral will be transferred by the Collateral Agent to the Trustee for application in accordance with Section 7.11.
(C)No Waiver. Collateral Agent will be under no obligation to marshal any of the Collateral for the benefit of the Company or any other Person, and the Company expressly waives all rights, if any, to require Collateral Agent to marshal any Collateral.
(D)Cumulative Remedies.The rights, powers and remedies of Collateral Agent hereunder will be in addition to all rights, powers and remedies given by statute or rule of law and are cumulative. The exercise of any one or more of the rights, powers and remedies provided herein will not be construed as a waiver of or election of remedies with respect to any other rights, powers and remedies of Collateral Agent.
Any notice or communication by the Company, the Trustee or the Collateral Agent to any other will be deemed to have been duly given if in writing and delivered in person or by first class mail (registered or certified, return receipt requested), facsimile transmission, electronic transmission or other similar means of unsecured electronic communication or overnight air courier guaranteeing next day delivery, or to the other’s address, which initially is as follows:
If to the Company:
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: General Counsel
with a copy (which will not constitute notice) to:
Ropes & Xxxx LLP
Prudential Tower
000 Xxxxxxxx Xxxxxx
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Xxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
If to the Trustee or the Collateral Agent:
Wilmington Trust, National Association
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Verastem, Inc. Administrator
The Company, the Trustee or the Collateral Agent, by notice to the other, may designate additional or different addresses (including facsimile numbers and electronic addresses) for subsequent notices or communications.
All notices and communications (other than those sent to Holders) will be deemed to have been duly given: (A) at the time delivered by hand, if personally delivered; (B) five (5) Business Days after being deposited in the mail, postage prepaid, if mailed; (C) when receipt acknowledged, if transmitted by facsimile, electronic transmission or other similar means of unsecured electronic communication; and (D) the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
All notices or communications required to be made to a Holder pursuant to this Indenture must be made in writing and will be deemed to be duly sent or given in writing if mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery, to its address shown on the Register; provided, however, that a notice or communication to a Holder of a Global Note may, but need not, instead be sent pursuant to the Depositary Procedures (in which case, such notice will be deemed to be duly sent or given in writing). The failure to send a notice or communication to a Holder, or any defect in such notice or communication, will not affect its sufficiency with respect to any other Holder.
If a notice or communication is mailed or sent in the manner provided above within the time prescribed, it will be deemed to have been duly given, whether or not the addressee receives it.
No past, present or future director, officer, employee, incorporator or stockholder of the Company, as such, will have any liability for any obligations of the Company under this Indenture or the Notes or for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting any Note, each Holder waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes.
THIS INDENTURE AND THE NOTES, AND ANY CLAIM, CONTROVERSY OR
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DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE OR THE NOTES, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY, THE TRUSTEE AND THE COLLATERAL AGENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED BY THIS INDENTURE OR THE NOTES.
Any legal suit, action or proceeding arising out of or based upon this Indenture or the transactions contemplated by this Indenture may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the State of New York, in each case located in the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth in Section 12.01 will be effective service of process for any such suit, action or proceeding brought in any such court. Each of the Company, the Trustee, the Collateral Agent and each Holder (by its acceptance of any Note) irrevocably and unconditionally waives any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waives and agrees not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient forum.
Upon any request or application by the Company to the Trustee or the Collateral Agent to take any action under this Indenture, the Company will furnish to the Trustee or the Collateral Agent, as applicable:
Each certificate and opinion with respect to compliance with a condition or covenant provided for in this Indenture will include:
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covenant or condition; |
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(B) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; |
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(D) a statement as to whether or not, in the opinion of such Person, such covenant or condition has been complied with. |
Neither this Indenture nor the Notes may be used to interpret any other indenture, note, loan or debt agreement of the Company or its Subsidiaries or of any other Person, and no such indenture, note, loan or debt agreement may be used to interpret this Indenture or the Notes.
All agreements of the Company in this Indenture and the Notes will bind its successors. All agreements of the Trustee and the Collateral Agent in this Indenture will bind their respective successors.
The Trustee, the Collateral Agent and each Note Agent will not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility under this Indenture or the Notes by reason of any occurrence beyond its control (including any act or provision of any present or future law or regulation or governmental authority, act of God or war, civil unrest, local or national disturbance or disaster, act of terrorism or unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
The Company acknowledges that, in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions, 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 Company agrees to provide the Trustee with such information as it may request to enable the Trustee to comply with the U.S.A. Patriot Act.
Except as otherwise provided in this Indenture, the Company will be responsible for making all calculations called for under this Indenture or the Notes, including determinations of the Last Reported Sale Price, Daily VWAP, accrued interest (including any Special Interest) on
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the Notes and the Conversion Rate.
The Company will make all calculations in good faith, and, absent manifest error, its calculations will be final and binding on all Holders. The Company will provide a schedule of its calculations to the Trustee and the Conversion Agent, and each of the Trustee and the Conversion Agent may rely conclusively on the accuracy of the Company’s calculations without independent verification. The Trustee will promptly forward a copy of each such schedule to a Holder upon its written request therefor.
If any provision of this Indenture or the Notes is invalid, illegal or unenforceable, then the validity, legality and enforceability of the remaining provisions of this Indenture or the Notes will not in any way be affected or impaired thereby.
The parties may sign any number of copies of this Indenture. Each signed copy will be an original, and all of them together represent the same agreement. Delivery of an executed counterpart of this Indenture by facsimile, electronically in portable document format or in any other format will be effective as delivery of a manually executed counterpart.
The table of contents and the headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions of this Indenture.
Each Holder of a Note agrees that, in the event that it is deemed to have received a distribution that is subject to U.S. federal income tax as a result of an adjustment or the non-occurrence of an adjustment to the Conversion Rate, any resulting withholding taxes (including backup withholding) may be withheld from interest and payments upon conversion, repurchase, redemption, or maturity of the Notes. In addition, each Holder of a Note agrees that if any withholding taxes (including backup withholding) are paid on behalf of such Holder, then those withholding taxes may be set off against payments of cash or the delivery of other Conversion Consideration, if any, in respect of the Notes (or, in some circumstances, any payments on the Common Stock) or sales proceeds received by, or other funds or assets of, such Holder.
This Indenture is subject to the terms, limitations and conditions set forth in the Intercreditor Agreement. Notwithstanding anything herein to the contrary, the Lien and security interest granted to the Collateral Agent pursuant to this Indenture and the exercise of any right or remedy by the Collateral Agent hereunder and thereunder are subject to the provisions of the
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Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor Agreement and this Indenture with respect to lien priority or rights and remedies in connection with any Collateral that also secures the Senior Credit Agreement, the terms of the Intercreditor Agreement will govern.
The Trustee and Collateral Agent may make reasonable rules for action by Holders. The Registrar and Paying Agent and any other Note Agent may make reasonable rules for their functions.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first written above.
By:/s/ Xxxxxx Xxxxxx
Name:Xxxxxx Xxxxxx
Title:Chief Business and Financial Officer
Wilmington Trust, National Association, as Trustee and as Collateral Agent
By:/s/ W. Xxxxxx Xxxxxx II
Name:W. Xxxxxx Xxxxxx II
Title:Vice President
[Signature Page to Indenture]
78507736_11
Schedule 1
HOLDER BENEFICIAL OWNERSHIP LIMIT
Citadel Equity Fund Ltd elects that any Notes issued to it be subject to a Holder Beneficial Ownership Limit equal to 9.8%.
D. E. Shaw Valence Portfolios, L.L.C. elects that any Notes issued to it be subject to a Holder Beneficial Ownership Limit equal to 4.9%.
Highbridge Tactical Credit Master Fund, L.P. elects that any Notes issued to it be subject to a Holder Beneficial Ownership Limit equal to 9.9%.
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78507736_11
EXHIBIT A
FORM OF NOTE
[Insert Global Note Legend, if applicable]
5.00% Convertible Senior Second Lien Note due 2048
CUSIP No.:92337C AB0Certificate No.2048-B1
ISIN No.:US92337CAB00
Verastem, Inc., a Delaware corporation, for value received, promises to pay to Cede & Co., or its registered assigns, the principal sum of SIXTY-TWO MILLION EIGHT HUNDRED SEVENTY-TWO THOUSAND dollars ($62,872,000.00) [(as revised by the attached Schedule of Exchanges of Interests in the Global Note)]* on November 1, 2048 and to pay interest thereon, as provided in the Indenture referred to below, until the principal and all accrued and unpaid interest are paid or duly provided for.
Interest Payment Dates:May 1 and November 1 of each year, commencing on May 1, 2020.
Regular Record Dates:April 15 and October 15.
Additional provisions of this Note are set forth on the other side of this Note.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
* Insert bracketed language for Global Notes only.
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78507736_11
IN WITNESS WHEREOF, Verastem, Inc. has caused this instrument to be duly executed as of the date set forth below.
Date:By:
Name:
Title:
Date:By:
Name:
Title:
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78507736_11
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Wilmington Trust, National Association, as Trustee, certifies that this is one of the Notes referred to in the within-mentioned Indenture.
Date:By:
Authorized Signatory
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78507736_11
5.00% Convertible Senior Second Lien Note due 2048
This Note is one of a duly authorized issue of notes of Verastem, Inc., a Delaware corporation (the “Company”), designated as its 5.00% Convertible Senior Second Lien Notes due 2048 (the “Notes”), all issued or to be issued pursuant to an indenture (as may be amended, supplemented or modified from time to time, the “Indenture”), dated as of November 14, 2019, and between the Company and Wilmington Trust, National Association, as trustee and as collateral agent. Capitalized terms used in this Note without definition have the respective meanings ascribed to them in the Indenture.
The Indenture sets forth the rights and obligations of the Company, the Trustee, the Collateral Agent and the Holders and the terms of the Notes. Notwithstanding anything to the contrary in this Note, to the extent that any provision of this Note conflicts with the provisions of the Indenture, the provisions of the Indenture will control.
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1. Interest. This Note will accrue interest at a rate and in the manner set forth in Section 2.04 of the Indenture. Stated Interest on this Note will begin to accrue from, and including, November 14, 2019. |
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2. Maturity. This Note will mature on November 1, 2048, unless earlier repurchased, redeemed or converted. |
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3. Method of Payment. Cash amounts due on this Note will be paid in the manner set forth in Section 2.03 of the Indenture. |
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4. Persons Deemed Owners. The Holder of this Note will be treated as the owner of this Note for all purposes. |
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5. Denominations; Transfers and Exchanges. All Notes will be in registered form, without coupons, in principal amounts equal to any Authorized Denominations. Subject to the terms of the Indenture, the Holder of this Note may transfer or exchange this Note by presenting it to the Registrar and delivering any required documentation or other materials. |
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6. Right of Holders to Require the Company to Repurchase Notes upon a Fundamental Change. If a Fundamental Change occurs, then each Holder will have the right to require the Company to repurchase such Holder’s Notes (or any portion thereof in an Authorized Denomination) for cash in the manner, and subject to the terms, set forth in Section 4.02 of the Indenture. |
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7. Right of Holders to Require the Company to Repurchase Notes on the Optional Repurchase Dates. Each Holder will have the right to require the Company to repurchase such Holder’s Notes (or any portion thereof in an Authorized Denomination) on each Optional Repurchase Date for cash in the manner, and subject to the terms, set forth in Section 4.03 of the Indenture. |
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78507736_11
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8. Right of the Company to Redeem the Notes. The Company will have the right to redeem the Notes for cash in the manner, and subject to the terms, set forth in Section 4.04 of the Indenture. |
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9. Conversion. The Holder of this Note may convert this Note into Conversion Consideration in the manner, and subject to the terms, set forth in Article 5 of the Indenture. The Company will have the right to cause the automatic conversion of all Notes then outstanding in the manner, and subject to the terms, set forth in Section 5.04 of the Indenture. |
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10. When the Company May Merge, Etc. Article 6 of the Indenture places limited restrictions on the Company’s ability to be a party to a certain transaction. |
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11. Defaults and Remedies. If an Event of Default occurs, then the principal amount of, and all accrued and unpaid interest on, all of the Notes then outstanding may (and, in certain circumstances, will automatically) become due and payable in the manner, and subject to the terms, set forth in Article 7 of the Indenture. |
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12. Amendments, Supplements and Waivers. The Company, the Trustee and the Collateral Agent may amend or supplement the Indenture, the Notes or the Intercreditor Agreement or waive compliance with any provision of the Indenture, the Notes or the Intercreditor Agreement in the manner, and subject to the terms, set forth in Article 9 of the Indenture. |
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13. No Personal Liability of Directors, Officers, Employees and Stockholders. No past, present or future director, officer, employee, incorporator or stockholder of the Company, as such, will have any liability for any obligations of the Company under the Indenture or the Notes or for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting any Note, each Holder waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes. |
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14. Authentication. No Note will be valid until it is authenticated by the Trustee. A Note will be deemed to be duly authenticated only when an authorized signatory of the Trustee (or a duly appointed authenticating agent) manually signs the certificate of authentication of such Note. |
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15. Abbreviations. Customary abbreviations may be used in the name of a Holder or its assignee, such as TEN COM (tenants in common), TEN ENT (tenants by the entireties), JT TEN (joint tenants with right of survivorship and not as tenants in common), CUST (custodian), and U/G/M/A (Uniform Gift to Minors Act). |
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16. Governing Law. THIS NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS NOTE, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. |
* * *
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78507736_11
To request a copy of the Indenture, which the Company will provide to any Holder at no charge, please send a written request to the following address:
Verastem, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
A-6
78507736_11
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
INITIAL PRINCIPAL AMOUNT OF THIS GLOBAL NOTE: $62,872,000.00
The following exchanges, transfers or cancellations of this Global Note have been made:
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Amount of Increase (Decrease) in Principal Amount of this Global Note |
Principal Amount of this Global Note After Such Increase (Decrease) |
Signature of Authorized Signatory of Trustee |
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* Insert for Global Notes only.
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78507736_11
CONVERSION NOTICE
VERASTEM, INC.
5.00% Convertible Senior Second Lien Notes due 2048
Subject to the terms of the Indenture, by executing and delivering this Conversion Notice, the undersigned Holder of the Note identified below directs the Company to convert (check one):
☐the entire principal amount of
☐$ * aggregate principal amount of
the Note identified by CUSIP No. and Certificate No. .
The undersigned acknowledges that if the Conversion Date of a Note to be converted is after a Regular Record Date and before the next Interest Payment Date, then such Note, when surrendered for conversion, must, in certain circumstances, be accompanied with an amount of cash equal to the interest that would have accrued on such Note to, but excluding, such Interest Payment Date.
Date:
(Legal Name of Holder)
By:
Name:
Title:
Signature Guaranteed:
Participant in a Recognized Signature
Guarantee Medallion Program
By:
Authorized Signatory
* Must be an Authorized Denomination.
A-8
78507736_9
78507736_11
FUNDAMENTAL CHANGE REPURCHASE NOTICE
VERASTEM, INC.
5.00% Convertible Senior Second Lien Notes due 2048
Subject to the terms of the Indenture, by executing and delivering this Fundamental Change Repurchase Notice, the undersigned Holder of the Note identified below is exercising its Fundamental Change Repurchase Right with respect to (check one):
☐the entire principal amount of
☐$ * aggregate principal amount of
the Note identified by CUSIP No. and Certificate No. .
The undersigned acknowledges that this Note, duly endorsed for transfer, must be delivered to the Paying Agent before the Fundamental Change Repurchase Price will be paid.
Date:
(Legal Name of Holder)
By:
Name:
Title:
Signature Guaranteed:
Participant in a Recognized Signature
Guarantee Medallion Program
By:
Authorized Signatory
* Must be an Authorized Denomination.
A-9
78507736_11
OPTIONAL REPURCHASE NOTICE
VERASTEM, INC.
5.00% Convertible Senior Second Lien Notes due 2048
Subject to the terms of the Indenture, by executing and delivering this Optional Repurchase Notice, the undersigned Holder of the Note identified below is exercising its Optional Repurchase Right with respect to (check one):
☐the entire principal amount of
☐$ * aggregate principal amount of
the Note identified by CUSIP No. and Certificate No. .
The undersigned directs the Company to purchase the above-referenced principal amount on (check one):
☐ November 1, 2023☐ November 1, 2028☐ November 1, 2033
☐ November 1, 2038☐ November 1, 2043
The undersigned acknowledges that this Note, duly endorsed for transfer, must be delivered to the Paying Agent before the Optional Repurchase Price will be paid.
Date:
(Legal Name of Holder)
By:
Name:
Title:
Signature Guaranteed:
Participant in a Recognized Signature
Guarantee Medallion Program
By:
Authorized Signatory
* Must be an Authorized Denomination.
A-10
78507736_11
ASSIGNMENT FORM
VERASTEM, INC.
5.00% Convertible Senior Second Lien Notes due 2048
Subject to the terms of the Indenture, the undersigned Holder of the within Note assigns to:
Name:
Address:
Social security or
tax identification
number:
the within Note and all rights thereunder irrevocably appoints:
as agent to transfer the within Note on the books of the Company. The agent may substitute another to act for him/her.
Date:
(Legal Name of Holder)
By:
Name:
Title:
Signature Guaranteed:
Participant in a Recognized Signature
Guarantee Medallion Program
By:
Authorized Signatory
A-11
78507736_11
EXHIBIT B
FORM OF GLOBAL NOTE LEGEND
THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS THE OWNER AND HOLDER OF THIS NOTE FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE WILL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE WILL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE 2 OF THE INDENTURE HEREINAFTER REFERRED TO.
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78507736_11
