UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): March 13, 2017

 

 

NUANCE COMMUNICATIONS, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-36056   94-3156479

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

1 Wayside Road

Burlington, Massachusetts 01803

(Address of Principal Executive Offices)

(Zip Code)

(781) 565-5000

Registrant’s telephone number, including area code

 

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

 

 

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

 

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

 

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

 

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

 

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

 

 

 


Item 1.01. Entry into a Material Definitive Agreement

Purchase Agreement

On March 13, 2017, Nuance Communications, Inc. (the “Company”) entered into a purchase agreement (the “Purchase Agreement”) with Morgan Stanley & Co. LLC and Barclays Capital Inc. as representatives of the several initial purchasers listed in Schedule I thereto (the “Initial Purchasers”), to issue and sell $350 million aggregate principal amount of 1.25% Senior Convertible Notes due 2025 (the “Notes”) in a private placement to qualified institutional buyers in the United States pursuant to Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”). The Notes were issued to the Initial Purchasers pursuant to an exemption from the registration requirements of the Securities Act afforded by Section 4(a)(2) of the Securities Act. The Company also granted to the Initial Purchasers an option to purchase up to an additional $60 million principal amount of such Notes to cover over-allotments, if any.

The Purchase Agreement contains customary representations, warranties and covenants by the Company together with customary closing conditions. Under the terms of the Purchase Agreement, the Company has agreed to indemnify the Initial Purchasers against certain liabilities.

The Purchase Agreement is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated by reference herein. The summary of the foregoing transaction is qualified in its entirety by reference to the text of the Purchase Agreement.

Indenture

On March 17, 2017, the Company entered into an indenture (the “Indenture”) with U.S. Bank National Association, as trustee (the “Trustee”), relating to the issuance of and governing the Notes and issued a global note (the “Global Note”) in the aggregate principal amount of $350 million in the name of Cede & Co. as nominee for The Depository Trust Company.

The material terms and conditions of the Indenture and the Notes governed thereby are as follows:

Maturity . April 1, 2025, unless otherwise repurchased or converted.

Interest . The Notes bear interest at a rate of 1.25% per year. Interest is payable in cash semiannually in arrears on April 1 and October 1 of each year, beginning on October 1, 2017.

Conversion Rights . The Notes are convertible at a holder’s option at an initial conversion rate of 45.0106 shares of common stock per $1,000 principal amount of Notes (equivalent to a conversion price of approximately $22.22 per share), subject to adjustment. Holders may convert their Notes at their option at any time prior to the business day immediately preceding the maturity date only under the following circumstances: (1) prior to October 1, 2024, on any date during any fiscal quarter beginning after June 30, 2017 (and only during such fiscal quarter) if the closing sale price of the Company’s common stock was more than 130% of the then current conversion price for at least 20 trading days in the period of the 30 consecutive trading days ending on the last trading day of the previous fiscal quarter, (2) at any time on or after October 1, 2024, (3) during the five consecutive business-day period immediately following any five consecutive trading-day period in which the trading price for $1,000 principal amount of the Notes for each day during such five trading-day period was less than 98% of the closing sale price of the Company’s common stock period multiplied by the then current conversion rate or (4) upon the occurrence of specified corporate events.

Purchase at Option of Holders Upon a Fundamental Change . If a fundamental change (as defined in the Indenture) occurs prior to maturity, holders of the Notes may require the Company to purchase all or a portion of their Notes in cash at a purchase price equal to 100% of the principal amount of the Notes being repurchased, plus accrued and unpaid interest (including additional interest), if any, to, but excluding, the repurchase date.


No Redemption . The Company may not redeem the Notes prior to maturity.

Ranking . The Notes will be the Company’s general senior unsecured obligations and will rank pari passu in right of payment with all of the Company’s other existing and future senior indebtedness, effectively subordinated to the Company’s secured indebtedness, to the extent of the value of such assets securing such indebtedness, and structurally subordinated to any indebtedness and liabilities (including trade payables) of any of the Company’s subsidiaries.

Events of Default . The following constitute events of default under the Indenture that could, subject to certain conditions, cause the principal amount of the Notes plus accrued and unpaid interest (including additional interest), if any, to become due and payable: (1) a default by the Company in the payment when due of any principal on any of the Notes at maturity, or upon repurchase; (2) a default by the Company in the payment of any interest when due on any of the Notes, which default continues for 30 days; (3) a failure by the Company to deliver cash and, if applicable, shares of common stock upon conversion of a Note, which continues for five business days following the scheduled settlement date for such conversion; (4) a default by the Company in its obligation to provide notice of the occurrence of a fundamental change as required by the Indenture; (5) a failure by the Company to perform or observe any other term, covenant or agreement contained in the Notes or the Indenture, and such default continues for 60 days after receipt of notice of such default; (6) a default by the Company or any of its significant subsidiaries under any indebtedness for borrowed money that results in the acceleration of indebtedness, or the failure to pay any such indebtedness at maturity, in each case in an aggregate amount in excess of $50 million, and such indebtedness is not discharged and acceleration is not rescinded, stayed or annulled within 30 days after receipt of notice of such default; (7) a final judgment for the payment of $50 million or more (excluding any amounts covered by insurance or subject to a binding indemnity from a financially responsible third party with resources sufficient to pay such indemnity obligation when due) is rendered against the Company or any of its significant subsidiaries, and such judgment is not discharged or stayed within 90 days; or (8) certain events of bankruptcy, insolvency or reorganization of the Company or any significant subsidiary.

The Company received approximately $343.5 million in net proceeds from the offering, after deducting the Initial Purchasers’ discount and commissions and estimated offering expenses. The Company used $99.1 million of the net proceeds from the offering to fund the repurchase of shares of the Company’s common stock pursuant to transactions negotiated with institutional investors concurrently with the pricing of the offering of the Notes. The Company will use the remaining net proceeds, together with cash on hand, to repurchase, redeem, retire or otherwise repay all of its outstanding 2.75% Senior Convertible Debentures due 2031, including the repurchase of $17.8 million in aggregate principal amount concurrently with the offering of the Notes. Pending those uses, the Company intends to invest the net proceeds from the offering in cash, cash equivalents, investment grade securities or other short-term marketable securities.

To the extent that any shares of common stock are issued upon conversion of the Notes, they will be issued in transactions anticipated to be exempt from registration under the Securities Act by virtue of Section 3(a)(9) thereof, because no commission or other remuneration is expected to be paid in connection with conversion of the Notes and any resulting issuance of shares of common stock.

The Indenture, including the form of Global Note, is attached as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated by reference herein. The foregoing summary description of the Indenture and the Global Note is qualified in its entirety by reference to the full text of the Indenture and the Global Note.

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

The information set forth in Item 1.01 above is incorporated by reference into this Item 2.03.

 

Item 3.02. Unregistered Sales of Equity Securities.

The information set forth in Item 1.01 above is incorporated by reference into this Item 3.02.


Item 8.01. Other Events

On March 13, 2017, the Company issued a press release announcing its offering of senior convertible notes. A copy of the press release is attached as Exhibit 99.1.

On March 13, 2017, the Company issued a press release announcing the pricing of its offering of senior convertible notes. A copy of the press release is attached as Exhibit 99.2.

 

Item 9.01. Financial Statements and Exhibits

(d) Exhibits.

The following exhibits are filed herewith:

 

Exhibit
No.

  

Description

  4.1    Indenture, dated as of March 17, 2017, by and between Nuance Communications, Inc. and U.S. Bank National Association, as trustee, relating to 1.25% Senior Convertible Notes due 2025, including form of Global Note.
10.1    Purchase Agreement, dated as of March 13, 2017, by and among Nuance Communications, Inc. and Morgan Stanley & Co. LLC and Barclays Capital Inc. as representatives of the several Initial Purchasers listed in Schedule I thereto.
99.1    Press Release, dated March 13, 2017.
99.2    Press Release, dated March 13, 2017.


SIGNATURE

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

 

  NUANCE COMMUNICATIONS, INC.
Date: March 17, 2017   By:  

/s/ Daniel D. Tempesta

    Name:   Daniel D. Tempesta
    Title:  

Executive Vice President

and Chief Financial Officer


EXHIBIT INDEX

 

Exhibit
No.

  

Description

  4.1    Indenture, dated as of March 17, 2017, by and between Nuance Communications, Inc. and U.S. Bank National Association, as trustee, relating to 1.25% Senior Convertible Notes due 2025, including form of Global Note.
10.1    Purchase Agreement, dated as of March 13, 2017, by and among Nuance Communications, Inc. and Morgan Stanley & Co. LLC and Barclays Capital Inc. as representatives of the several Initial Purchasers listed in Schedule I thereto.
99.1    Press Release, dated March 13, 2017.
99.2    Press Release, dated March 13, 2017.

Exhibit 4.1

 

 

 

NUANCE COMMUNICATIONS, INC.

1.25% Senior Convertible Notes Due 2025

INDENTURE

Dated as of March 17, 2017

U.S. Bank National Association,

as Trustee

 

 

 


TABLE OF CONTENTS

 

         Page  

ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE

     1  

Section 1.01.

 

Definitions

     1  

Section 1.02.

 

Incorporation by Reference of Trust Indenture Act

     12  

Section 1.03.

 

Rules of Construction

     12  

Section 1.04.

 

References to Interest

     13  

ARTICLE 2 THE SECURITIES

     13  

Section 2.01.

 

Designation, Amount and Issuance of Securities

     13  

Section 2.02.

 

Form of the Securities

     13  

Section 2.03.

 

Date and Denomination of Securities; Payment at Maturity; Payment of Interest

     14  

Section 2.04.

 

Execution and Authentication

     16  

Section 2.05.

 

Registrar, Paying Agent and Conversion Agent

     16  

Section 2.06.

 

Paying Agent to Hold Money in Trust

     17  

Section 2.07.

 

Securityholder Lists

     17  

Section 2.08.

 

Exchange and Registration of Transfer of Securities

     18  

Section 2.09.

 

Global Securities

     19  

Section 2.10.

 

Transfer Restrictions

     20  

Section 2.11.

 

Responsibilities and Obligations of the Trustee

     25  

Section 2.12.

 

Replacement Securities

     25  

Section 2.13.

 

Outstanding Securities

     26  

Section 2.14.

 

Temporary Securities

     27  

Section 2.15.

 

Cancellation

     27  

Section 2.16.

 

CUSIP and ISIN Numbers

     27  

Section 2.17.

 

Additional Securities; Repurchases

     28  

ARTICLE 3 REDEMPTION AND REPURCHASE OF SECURITIES

     28  

Section 3.01.

 

No Redemption of Securities

     28  

Section 3.02.

 

[Reserved]

     28  

Section 3.03.

 

[Reserved]

     28  

Section 3.04.

 

Repurchase at Option of Holders Upon a Fundamental Change

     29  

Section 3.05.

 

[Reserved]

     30  

Section 3.06.

 

Company Repurchase Notice; Tender Offer Compliance

     30  

Section 3.07.

 

Effect of Repurchase Notice; Withdrawal

     32  

Section 3.08.

 

Deposit of Fundamental Change Repurchase Price

     33  

Section 3.09.

 

Securities Repurchased in Part

     33  

ARTICLE 4 COVENANTS

     33  

Section 4.01.

 

Payment of Securities

     33  

Section 4.02.

 

Maintenance of Office or Agency

     34  

 

-i-


Section 4.03.

 

Rule 144A Information Requirement and Annual Reports

     34  

Section 4.04.

 

Existence

     36  

Section 4.05.

 

Payment of Taxes and Other Claims

     36  

Section 4.06.

 

Compliance Certificate

     36  

Section 4.07.

 

Additional Interest Notice

     37  

ARTICLE 5 SUCCESSOR COMPANY

     37  

Section 5.01.

 

When Company May Merge or Transfer Assets

     37  

Section 5.02.

 

Successor to be Substituted

     38  

Section 5.03.

 

Opinion of Counsel to be Given to Trustee

     38  

ARTICLE 6 DEFAULTS AND REMEDIES

     39  

Section 6.01.

 

Events of Default

     39  

Section 6.02.

 

Acceleration

     41  

Section 6.03.

 

Other Remedies

     42  

Section 6.04.

 

Waiver of Defaults and Events of Default

     42  

Section 6.05.

 

Control by Majority

     42  

Section 6.06.

 

Limitation on Suits

     43  

Section 6.07.

 

Rights of Securityholders to Receive Payment

     43  

Section 6.08.

 

Collection Suit by Trustee

     44  

Section 6.09.

 

Trustee May File Proofs of Claim

     44  

Section 6.10.

 

Priorities

     44  

Section 6.11.

 

Undertaking for Costs

     44  

Section 6.12.

 

Waiver of Stay, Extension or Usury Laws

     45  

Section 6.13.

 

Alternative Remedy for Failure to Comply with Reporting Obligations in the Indenture and TIA

     45  

ARTICLE 7 TRUSTEE

     46  

Section 7.01.

 

Duties of Trustee

     46  

Section 7.02.

 

Rights of Trustee

     47  

Section 7.03.

 

Individual Rights of Trustee

     48  

Section 7.04.

 

Trustee’s Disclaimer

     48  

Section 7.05.

 

Notice of Defaults

     49  

Section 7.06.

 

Reports by Trustee to Securityholders

     49  

Section 7.07.

 

Compensation and Indemnity

     49  

Section 7.08.

 

Replacement of Trustee

     50  

Section 7.09.

 

Successor Trustee by Merger

     51  

Section 7.10.

 

Eligibility; Disqualification

     52  

Section 7.11.

 

Preferential Collection of Claims Against Company

     52  

ARTICLE 8 DISCHARGE OF INDENTURE

     52  

Section 8.01.

 

Discharge of Liability on Securities

     52  

Section 8.02.

 

Application of Trust Money

     53  

Section 8.03.

 

Repayment to Company

     53  

Section 8.04.

 

Reinstatement

     53  

 

-ii-


ARTICLE 9 AMENDMENTS

     53  

Section 9.01.

 

Without Consent of Securityholders

     53  

Section 9.02.

 

With Consent of Securityholders

     55  

Section 9.03.

 

Compliance with Trust Indenture Act

     56  

Section 9.04.

 

Revocation and Effect of Consents and Waivers

     56  

Section 9.05.

 

Notation on or Exchange of Securities

     56  

Section 9.06.

 

Trustee to Sign Amendments

     57  

ARTICLE 10 CONVERSION OF SECURITIES

     57  

Section 10.01.

 

Right to Convert

     57  

Section 10.02.

 

Exercise of Conversion Right; Issuance of Common Stock on Conversion; No Adjustment for Interest or Dividends

     60  

Section 10.03.

 

Cash Payments in Lieu of Fractional Shares

     61  

Section 10.04.

 

Conversion Rate

     62  

Section 10.05.

 

Adjustment to Conversion Rate upon a Non-Stock Change of Control

     62  

Section 10.06.

 

Adjustment of Conversion Rate

     63  

Section 10.07.

 

Effect of Reclassification, Consolidation, Merger or Sale

     73  

Section 10.08.

 

Taxes on Shares Issued

     74  

Section 10.09.

 

Reservation of Shares, Shares to be Fully Paid; Compliance with Governmental Requirements; Listing of Common Stock

     75  

Section 10.10.

 

Responsibility of Trustee

     76  

Section 10.11.

 

Notice to Holders Prior to Certain Actions

     76  

Section 10.12.

 

Stockholder Rights Plans

     77  

Section 10.13.

 

Settlement Upon Conversion; Cash Percentage Election

     78  

ARTICLE 11 MISCELLANEOUS

     78  

Section 11.01.

 

Trust Indenture Act Controls

     78  

Section 11.02.

 

Notices

     79  

Section 11.03.

 

Communication by Securityholders with Other Securityholders

     80  

Section 11.04.

 

Certificate and Opinion as to Conditions Precedent

     80  

Section 11.05.

 

Statements Required in Certificate or Opinion

     80  

Section 11.06.

 

When Securities Disregarded

     81  

Section 11.07.

 

Rules by Trustee, Paying Agent and Registrar

     81  

Section 11.08.

 

Legal Holidays

     81  

Section 11.09.

 

Governing Law

     81  

Section 11.10.

 

No Recourse Against Others

     81  

Section 11.11.

 

Successors

     82  

Section 11.12.

 

Multiple Originals

     82  

Section 11.13.

 

Table of Contents; Headings

     82  

Section 11.14.

 

Calculations in Respect of the Securities

     82  

Section 11.15.

 

USA Patriot Act

     82  

Exhibit A – Form of Security

  

 

-iii-


INDENTURE dated as of March 17, 2017 between NUANCE COMMUNICATIONS, INC., a Delaware corporation (the “ Company ”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (the “ Trustee ”).

WHEREAS, the Company has duly authorized the creation of an issue of its 1.25% Senior Convertible Notes Due 2025 (the “ Securities ”), having the terms, tenor, amount and other provisions hereinafter set forth, and, to provide therefor, the Company has duly authorized the execution and delivery of this Indenture; and

WHEREAS, all things necessary to make the Securities, when the Securities are duly executed by the Company and authenticated and delivered hereunder and duly issued by the Company, the valid obligations of the Company, and to make this Indenture a valid and binding agreement of the Company, in accordance with their and its terms, have been done and performed, and the execution of this Indenture and the issue hereunder of the Securities have in all respects been duly authorized,

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows:

ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.01.     Definitions .

Additional Interest ” means all amounts, if any, payable pursuant to Section 4.03(d), Section 4.03(e) and Default Additional Interest pursuant to Section 6.13, as applicable.

Additional Interest Notice ” has the meaning specified in Section 4.07.

Additional Shares ” has the meaning specified in Section 10.05.

Additional Securities ” has the meaning specified in Section 2.17.

Affiliate ” of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “ control ” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “ controlling ” and “ controlled ” have meanings correlative to the foregoing.


Agent Members ” has the meaning specified in Section 2.09.

Applicable Consideration ” has the meaning specified in Section 10.07.

Bankruptcy Law ” has the meaning specified in Section 6.01.

Bid Solicitation Agent ” shall initially be the Company, or an agent of the Company.

Board of Directors ” means the Board of Directors of the Company or any committee thereof duly authorized to act on behalf of such board.

Business Day ” means each day which is not a Legal Holiday.

Capital Stock ” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock, but excluding any debt securities convertible into such equity.

Cash Percentage ” has the meaning specified in Section 10.13(b).

Closing Date ” means the date of this Indenture.

Closing Sale Price ” of any share of Common Stock or any other security on any Trading Day means the closing sale price of such security (or, if no closing sale price is reported, the average of the closing bid and closing ask prices or, if more than one in either case, the average of the average closing bid and the average closing ask prices) on such date as reported in composite transactions for the principal U.S. securities exchange on which the shares of Common Stock are traded or, if the shares of Common Stock are not listed on a U.S. national or regional securities exchange, as reported in the over-the-counter market by OTC Markets Group or other similar organization. In the absence of such a quotation, the Closing Sale Price shall be determined by a nationally recognized securities dealer retained by the Company for that purpose. The Closing Sale Price shall be determined without reference to extended or after hours trading.

Code ” means the Internal Revenue Code of 1986, as amended.

Common Stock ” means the common stock, par value $0.001 of the Company, subject to Section 10.07.

 

-2-


Company ” means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor and, for purposes of any provision contained herein and required by the TIA, each other obligor on the indenture securities.

Company Repurchase Notice ” has the meaning specified in Section 3.06.

Conversion Agent ” has the meaning specified in Section 2.05.

Conversion Date ” has the meaning specified in Section 10.02.

Conversion Notice ” has the meaning specified in Section 10.02.

Conversion Observation Period ” means, with respect to any Securities, the 20 consecutive VWAP Trading Day period beginning: (1) with respect to a Conversion Date occurring after the 22nd Scheduled VWAP Trading Day immediately preceding the Maturity Date, beginning on such 22nd Scheduled VWAP Trading Day; and (2) in all other cases, on the third Scheduled VWAP Trading Day following the related Conversion Date.

Conversion Price ” on any day will equal $1,000 divided by the Conversion Rate in effect on that day.

Conversion Rate ” means initially 45.0106 shares of Common Stock per $1,000 principal amount of Securities, subject to adjustments as set forth herein.

Corporate Trust Office ” or other similar term, means the designated office of the Trustee at which at any particular time its corporate trust business as it relates to this Indenture shall be administered, which office is, at the date as of which this Indenture is dated, located at 225 Asylum Street, Hartford, CT 06103, Attention: Arthur L. Blakeslee, or at any other time at such other address as the Trustee may designate from time to time by notice to the Company.

Custodian ” has the meaning specified in Section 6.01.

Daily Conversion Value ” means, for any VWAP Trading Day during the Conversion Observation Period, one-twentieth (1/20) of (1) the applicable Conversion Rate multiplied by (2) the VWAP Price of the Common Stock (or the consideration into which the Common Stock has been converted in connection with transactions to which Section 10.07 is applicable) on that day. For the purposes of determining the Daily Conversion Value the following provisions shall apply: (i) if the Applicable Consideration includes securities for which the price can be determined in a manner contemplated by the definition of “VWAP Price,” then the value of such securities on such VWAP Trading Day shall be determined in accordance with the principles set forth in such definition; (ii) if

 

-3-


the Applicable Consideration includes other property (other than securities as to which clause (i) applies or cash), then the value of such property on such VWAP Trading Day shall be the fair market value of such property as determined by the Board of Directors in good faith; and (iii) if the Applicable Consideration includes cash, then the value of such cash shall be the amount thereof.

Daily Settlement Amount ,” for each $1,000 principal amount of Securities, for each of the 20 VWAP Trading Days during the Conversion Observation Period, shall consist of:

(i)    cash equal to the lesser of $50 and the Daily Conversion Value; and

(ii)    to the extent the Daily Conversion Value exceeds $50, a number of shares of Common Stock (the “ Daily Share Amount ”) equal to, (A) the difference between the Daily Conversion Value and $50, divided by (B)  the VWAP Price of the Common Stock for such day, appropriately adjusted to reflect stock splits, stock dividends, combinations or similar events occurring during the Conversion Observation Period, subject to the Company’s right to deliver a percentage of the Daily Share Amount in cash in accordance with Section 10.13(b).

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

Default Additional Interest ” has the meaning specified in Section 6.13.

Depositary ” means the clearing agency registered under the Exchange Act that is designated to act as the depositary for the Global Securities. DTC shall be the initial Depositary, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter, “ Depositary ” shall mean or include such successor.

Determination Date ” has the meaning specified in Section 10.06(k).

Distributed Assets ” has the meaning specified in Section 10.06(d).

Distribution Notice ” has the meaning specified in Section 10.01(c).

DTC ” means The Depository Trust Company.

Effective Date ” means the first date on which the shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, reflecting the relevant share split or share combination, as applicable.

Event of Default ” has the meaning specified in Section 6.01.

 

-4-


Ex-Date ,” when used with respect to any issuance or distribution, means the first date on which the shares of Common Stock, trade regular way on the relevant exchange or in the relevant market from which the Closing Sale Price was obtained without the right to receive such issuance or distribution.

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

Exchange Act ” means the Securities Exchange Act of 1934, as amended.

Fair Market Value ” means the amount which a willing buyer would pay a willing seller in an arm’s-length transaction.

Fiscal Quarter ” means, with respect to the Company, a fiscal quarter of the Company. The Company shall confirm the ending dates of its fiscal quarters for the current fiscal year to the Trustee upon the Trustee’s request.

Free Trade Date ” means the one-year anniversary of the Last Original Issuance Date of the Securities.

Fundamental Change ” means the occurrence of any of the following after the original issuance of the Securities:

(a)    the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” becomes the “beneficial owner” (as these terms are defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Company’s Capital Stock that is at the time entitled to vote by the holders thereof in the election of the Board of Directors (or comparable body); or

(b)    the adoption of a plan relating to the liquidation or dissolution of the Company; or

(c)    (X) the consolidation or merger of the Company with or into any Person (other than a subsidiary of the Company), or (Y) the sale, lease, transfer, conveyance or other disposition, in one or a series of related transactions, of all or substantially all of the Company’s assets and those of its subsidiaries taken as a whole to any “person” (as this term is used in

 

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Section 13(d)(3) of the Exchange Act) (other than to one or more of the Company’s Subsidiaries), other than:

(i)    any transaction:

(A)    that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of the Company’s Capital Stock; and

(B)    in the case of clause (c)(X), pursuant to which the holders of 50% or more of the total voting power of all shares of the Company’s Capital Stock entitled to vote generally in elections of the Board of Directors immediately prior to such transaction have the right to exercise, directly or indirectly, 50% or more of the total voting power of all shares of the Capital Stock entitled to vote generally in elections of the directors of the continuing or surviving Person (or any parent thereof) immediately after giving effect to such transaction; or

(ii)    any merger primarily for the purpose of changing the Company’s jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity; or

(d)    the Common Stock or other common stock underlying the Securities ceases to be listed or quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or, in each case, any of their respective successors).

However, a Fundamental Change will be deemed not to have occurred if at least 90% of the consideration in the transaction or transactions (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) which otherwise would constitute a Fundamental Change under clauses (a) or (c) above consists of shares of common stock traded or to be traded immediately following such transaction on The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or, in each case, any of their respective successors) and, as a result of the transaction or transactions, the Applicable Consideration for the Securities consists of such common stock.

Fundamental Change Repurchase Date ” has the meaning specified in Section 3.04(a).

Fundamental Change Repurchase Notice ” has the meaning specified in Section 3.04(c).

Fundamental Change Repurchase Price ” has the meaning specified in Section 3.04(a).

GAAP ” means generally accepted accounting principles in the United States of America as in effect on the Closing Date, including those set forth in (i) the opinions and pronouncements of the

 

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Accounting Principles Board of the American Institute of Certified Public Accountants, (ii) statements and pronouncements of the Financial Accounting Standards Board, (iii) such other statements by such other entity as approved by a significant segment of the accounting profession, and (iv) the rules and regulations of the SEC governing the inclusion of financial statements (including pro forma financial statements) in periodic reports required to be filed pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in staff accounting bulletins and similar written statements from the accounting staff of the SEC.

Global Securities ” has the meaning specified in Section 2.02.

Indebtedness ” means, with respect to any Person all indebtedness of such Person for borrowed money.

Indenture ” means this Indenture as amended or supplemented from time to time.

Initial Purchasers ” means Morgan Stanley & Co. LLC and Barclays Capital Inc.

Interest ” and “ interest ” means, when used with reference to the Securities, any interest payable under the terms of the Securities, including ordinary interest, defaulted interest, if any, and Additional Interest, if any.

Interest Record Dates ” means the dates specified as such in the form of Security set forth as Exhibit A hereto. The Interest Record Date for any interest payment date for the Securities shall be the Interest Record Date immediately preceding the applicable interest payment date.

Last Original Issuance Date ” means the last date of original issuance of the Securities issued pursuant to Section 2.01.

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

 

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Legal Holiday ” has the meaning specified in Section 11.08.

Market Disruption Event ” means the occurrence or existence during the one-half hour period ending on the scheduled close of trading on any VWAP Trading Day for the Common Stock of any material suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by The NASDAQ Global Select Market or otherwise) in the Common Stock or in any options, contracts or future contracts relating to the Common Stock.

Maturity Date ” means April 1, 2025.

Non-Stock Change of Control ” means a transaction described under clause (a), clause (c) (without regard to clause (c)(i)(B)) or clause (d) in the definition of Fundamental Change that becomes effective on or prior to the Maturity Date and, in the case of clause (a) or clause (c), other than pursuant to any transaction in which at least 90% of the consideration for the Common Stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) consists of shares of common stock traded or to be traded immediately following such transaction on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or, in each case, any of their respective successors) and, as a result of such transaction of transactions, the Applicable Consideration for the Securities consists of such common stock.

Non-Stock Change of Control Effective Date ” has the meaning specified in Section 10.05.

Non-Stock Change of Control Period ” has the meaning specified in Section 10.05.

Notice of Default ” shall have the meaning specified in Section 6.01.

Officer ” means the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company.

Officers’ Certificate ” means a certificate signed by two Officers.

Opinion of Counsel ” means a written opinion from legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company or the Trustee.

Paying Agent ” has the meaning specified in Section 2.05.

 

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

Physical Securities ” means permanent certificated Securities in registered form issued in denominations of $1,000 principal amount and multiples thereof.

Preferred Stock ,” as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated) that is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person.

Principal ” of a Security means the principal of the Security plus the premium, if any, payable on the Security that is due or overdue or is to become due at the relevant time.

Protected Purchaser ” has the meaning specified in Section 2.12.

Purchase Agreement ” means the Purchase Agreement dated March 13, 2017, among the Company and the Initial Purchasers relating to the offering and sale of the Securities.

Purchased Shares ” has the meaning specified in Section 10.06(f).

Reference Period ” has the meaning specified in Section 10.06(d).

Register ” has the meaning specified in Section 2.05.

Registrar ” has the meaning specified in Section 2.05.

Resale Restriction Termination Date ” has the meaning specified in Section 2.10(a).

Restricted Securities ” has the meaning specified in Section 2.10.

Rule  144A ” means Rule 144A as promulgated under the Securities Act as it may be amended from time to time hereafter.

Scheduled VWAP Trading Day ” means a day that is scheduled to be a VWAP Trading Day on the primary U.S. national or regional securities exchange or market on which the Common Stock is listed or, if the Common Stock is not listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded.

SEC ” means the Securities and Exchange Commission.

 

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Securities ” means any security issued, authenticated and delivered under this Indenture, including any Global Securities.

Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time.

Securityholder ” or “ Holder ” means the Person in whose name a Security is registered on the Registrar’s books.

Significant Subsidiary ” means any Subsidiary of a Person that would be a “Significant Subsidiary” of the Person within the meaning of Rule 1-02(w) under Regulation S-X promulgated by the SEC.

Spin-Off ” has the meaning specified in Section 10.06(c).

Stock Price ” has the meaning specified in Section 10.05.

Subsidiary ” of any Person means any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of such Person or (iii) one or more Subsidiaries of such Person.

TIA ” or “ Trust Indenture Act ” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb), as amended, as in effect on the date of this Indenture.

Trading Day ” means a day on which (i) trading in the Common Stock (or other security for which a Closing Sale Price must be determined) generally occurs on The NASDAQ Global Select Market or, if the Common Stock (or such other security) is not then listed on The NASDAQ Global Select Market, on the principal other U.S. national or regional securities exchange on which the Common Stock (or such other security) is then listed or, if the Common Stock (or such other security) is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock (or such other security) is then traded, and (ii) a last reported sale price for the Common Stock (or closing sale price for such other security) is available on such securities exchange or market. If the Common Stock (or such other security) is not so listed or traded, “Trading Day” means a “Business Day.”

Trading Price ” means, with respect to a Security on any date of determination, the average of the secondary market bid quotations per $1,000 principal amount of the Securities obtained by the Bid Solicitation Agent for $5,000,000 principal amount of the Securities at approximately 3:30 p.m.,

 

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New York City time, on such determination date from two independent nationally recognized securities dealers selected by the Company, which may include one or more of the Initial Purchasers; provided that if at least two such bids cannot reasonably be obtained, but one such bid can be reasonably obtained, this one bid will be used. If the Bid Solicitation Agent cannot reasonably obtain at least one bid for $5,000,000 principal amount of the Securities from a nationally recognized securities dealer or in the Company’s reasonable judgment, the bid quotations are not indicative of the secondary market value of the Securities, then, for purposes of Section 10.01(a)(viii), the Trading Price of $1,000 principal amount of the Securities will be deemed to be less than 98% of the applicable Conversion Rate of the Securities multiplied by the Closing Sale Price of Common Stock on such determination date.

Trigger Event ” has the meaning specified in Section 10.06(d).

Trust Officer ” means any officer within the corporate trust department of the Trustee (or any successor group of the Trustee) with direct responsibility for the administration of this Indenture 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 or her knowledge of and familiarity with the particular subject, and who shall have direct responsibility for the administration of this Indenture.

Trustee ” means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor.

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

VWAP Price ” per share of the Common Stock on any VWAP Trading Day means the per share-volume-weighted average price as displayed on Bloomberg (or any successor service) under the heading “Bloomberg VWAP” on page “NUAN <Equity> AQR” in respect of the period from 9:30 a.m. to 4:00 p.m., New York City time, on such VWAP Trading Day; or, if such price is not available, the “ VWAP Price ” means the market value per share of the Common Stock on such day on a volume weighted basis, if possible, as determined by a nationally recognized investment banking firm retained for this purpose by the Company. The “ VWAP Price ” shall be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.

VWAP Trading Day ” means a day during which (i) trading in the Common Stock generally occurs, (ii) there is no Market Disruption Event and (iii) a Closing Sale Price for the Common Stock is provided 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 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 (or other security for which a Closing Sale Price must be determined) is not listed or traded, “ VWAP Trading Day ” means a “ Business Day .”

 

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Wholly Owned Subsidiary ” of any Person means a Subsidiary of such Person, all the Capital Stock of which (other than directors’ qualifying shares) is owned by such Person or another Wholly Owned Subsidiary of such Person.

Section 1.02.     Incorporation by Reference of Trust Indenture Act . This Indenture is subject to the mandatory provisions of the TIA, which are incorporated by reference in and made a part of this Indenture. The following TIA terms have the following meanings:

Commission ” means the SEC.

indenture securities ” means the Securities.

indenture security holder ” means a Securityholder.

indenture to be qualified ” means this Indenture.

indenture trustee ” or “institutional trustee” means the Trustee.

obligor ” on the indenture securities means the Company and any other obligor on the indenture securities.

All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule have the meanings assigned to them by such definitions.

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

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

(2)    an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

(3)    “or” is not exclusive;

(4)    “including” means including without limitation; and

 

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(5)    words in the singular include the plural and words in the plural include the singular.

Section 1.04.     References to Interest. Unless the context otherwise requires, any reference to interest on, or in respect of, any Security in this Indenture shall be deemed to include Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to any of Section 4.03(d), Section 4.03(e) and Section 6.13. Unless the context otherwise requires, any express mention of Additional Interest in any provision hereof shall not be construed as excluding Additional Interest, as the case may be, in those provisions hereof where such express mention is not made.

ARTICLE 2

THE SECURITIES

Section 2.01.     Designation, Amount and Issuance of Securities. The Securities shall be designated as “1.25% Senior Convertible Notes Due 2025.” The Securities will initially be issued in the aggregate principal amount of $350,000,000 (as increased by an amount of up to $60,000,000 aggregate principal amount of any additional Securities purchased by the Initial Purchasers pursuant to the exercise of their over-allotment option as set forth in the Purchase Agreement). The Company may issue additional securities in accordance with Section 2.17. Upon the execution of this Indenture, or from time to time thereafter, Securities may be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver Securities upon a written order of the Company, such order signed by an Officer of the Company, without any further action by the Company hereunder.

Section 2.02.     Form of the Securities. The Securities and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially in the form set forth in Exhibit A hereto. The terms and provisions contained in the form of Securities attached as Exhibit A hereto shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.

Any of the Securities may have such letters, numbers or other marks of identification and such notations, legends, endorsements or changes as the officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required by the custodian for the Global Securities, the Depositary or as may be required to comply with any applicable law or any regulation thereunder or

 

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with the rules and regulations of any securities exchange or automated quotation system upon which the Securities may be listed or traded or designated for issuance or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Securities are subject.

So long as the Securities are eligible for book-entry settlement with the Depositary, or unless otherwise required by law, subject to Section 2.09, all of the Securities will be represented by one or more Securities in global form registered in the name of the Depositary or the nominee of the Depositary (“ Global Securities ”). The transfer and exchange of beneficial interests in any such Global Securities shall be effected through the Depositary in accordance with this Indenture and the applicable procedures of the Depositary. Except as provided in Section 2.09, beneficial owners of a Global Security shall not be entitled to have certificates registered in their names, will not receive or be entitled to receive physical delivery of certificates in definitive form and will not be considered Holders of such Global Security.

Any Global Securities shall represent such of the outstanding Securities as shall be specified therein and shall provide that it shall represent the aggregate amount of outstanding Securities from time to time endorsed thereon and that the aggregate amount of outstanding Securities represented thereby may from time to time be increased or reduced to reflect issuances, repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of a Global Security to reflect the amount of any increase or decrease in the amount of outstanding Securities represented thereby shall be made by the Trustee or the custodian for the Global Security, at the direction of the Trustee, in such manner and upon instructions given by the Holder of such Securities in accordance with this Indenture. Payment of principal of, and interest on, any Global Securities shall be made to the Depositary in immediately available funds.

Section 2.03.     Date and Denomination of Securities; Payment at Maturity; Payment of Interest . The Securities shall be issuable in registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof. Each Security shall be dated the date of its authentication and shall bear interest from the date specified on the face of the form of Securities attached as Exhibit A hereto. Interest on the Securities shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

On the Maturity Date, each Holder shall be entitled to receive on such date the principal amount of the Securities held and accrued and unpaid interest to, but not including, the Maturity Date. With respect to Global Securities, principal and interest will be paid to the Depositary in immediately available funds. With respect to any certificated Securities, principal and interest will be payable at the Company’s office or agency maintained for that purpose, which initially will be the Trustee’s office at 100 Wall Street, Suite 1600, New York, NY 10005.

 

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The Person in whose name any Security is registered on the Register at 5:00 p.m., New York City time, on any Interest Record Date with respect to any interest payment date shall be entitled to receive the interest payable on such interest payment date.

Notwithstanding the foregoing, any Securities or portion thereof surrendered for conversion during the period after the Interest Record Date for any interest payment date and ending prior to the corresponding interest payment date shall be accompanied by payment, in immediately available funds or other funds acceptable to the Company, of an amount equal to the interest otherwise payable on such interest payment date on the principal amount being converted; provided that no such payment need be made (1) if a Holder converts its Securities following a Fundamental Change and the Company has specified a Fundamental Change Repurchase Date that is after an Interest Record Date and on or prior to the Business Day immediately succeeding the corresponding interest payment date, (2) for any conversion following the Interest Record Date immediately preceding the Maturity Date, or (3) to the extent of any overdue interest, if overdue interest exists at the time of conversion with respect to such Securities.

Except as provided above, the Company shall pay interest (i) on any Global Securities by wire transfer of immediately available funds to the account of the Depositary or its nominee, (ii) on any Securities in certificated form having a principal amount of less than $2,000,000, by check mailed to the address of the Person entitled thereto as it appears in the Register, provided that at maturity, interest will be payable at the office of the Company maintained by the Company for such purposes, which shall initially be an office or agency of the Trustee located at 100 Wall Street, Suite 1600, New York, NY 10005 and (iii) on any Securities in certificated form having a principal amount of $2,000,000 or more, by wire transfer in immediately available funds at the election of the Holder of such Securities who has duly delivered notice of such election and applicable wire instructions to the Trustee at least five Business Days prior to the relevant interest payment date, provided that at maturity, interest will be payable at the office of the Company maintained by the Company for such purposes, which shall initially be an office or agency of the Trustee located at 100 Wall Street, Suite 1600, New York, NY 10005. If a payment date is not a Business Day, payment shall be made on the next succeeding Business Day, and no interest will be payable on such interest payment in respect of the delay.

Upon the conversion of any Securities, the accrued but unpaid interest attributable to the period from the issue date of the Securities to the Conversion Date, with respect to the converted Securities, shall not be cancelled, extinguished or forfeited, but rather shall be deemed to be paid in full to the Holder thereof through delivery of the cash (including a cash payment in lieu of fractional shares, if any) and shares of Common Stock, if any, in exchange for the Securities being converted pursuant to the provisions hereof.

 

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Section 2.04.     Execution and Authentication . One or more Officers shall sign the Securities for the Company by manual or facsimile signature.

If an Officer whose signature is on a Security no longer holds that office at the time the Trustee authenticates the Security, the Security shall be valid nevertheless.

A Security shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Security. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.

The Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate the Securities. Any such appointment shall be evidenced by an instrument signed by a Trust Officer, a copy of which shall be furnished to the Company. Unless limited by the terms of such appointment, an authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as any Registrar, Paying Agent or agent for service of notices and demands.

Section 2.05.     Registrar, Paying Agent and Conversion Agent . The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (the “ Registrar ”), an office or agency where Securities may be presented for payment (the “ Paying Agent ”) and an office or agency where Securities may be presented for conversion (the “ Conversion Agent ”). The Corporate Trust Office shall be considered as one such office or agency of the Company for each of the aforesaid purposes. The Registrar shall keep a register of the Securities (the “ Register ”) and of their transfer and exchange. The Company may have one or more co-registrars and one or more additional paying agents. The term “Paying Agent” includes any additional paying agent, and the term “Registrar” includes any co-registrars. The Company initially appoints the Trustee as (i) Registrar and Paying Agent in connection with the Securities, (ii) the custodian with respect to the Global Securities and (iii) Conversion Agent.

The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent or Conversion Agent not a party to this Indenture, which shall incorporate the terms of the TIA if required by the TIA. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of any such

 

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agent. If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07. The Company or any of its domestically organized Wholly Owned Subsidiaries may act as Paying Agent, Conversion Agent or Registrar.

The Company may remove any Registrar, Paying Agent or Conversion Agent upon written notice to such Registrar, Paying Agent or Conversion Agent and to the Trustee; provided that no such removal shall become effective until (1) acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Company and such successor Registrar, Paying Agent or Conversion Agent, as the case may be, and delivered to the Trustee or (2) notification to the Trustee that the Trustee shall serve as Registrar, Paying Agent or Conversion Agent until the appointment of a successor in accordance with clause (1) above. The Registrar, Paying Agent or Conversion Agent may resign at any time upon written notice; provided that the Trustee may resign as Paying Agent, Conversion Agent or Registrar only if the Trustee also resigns as Trustee in accordance with Section 7.08.

Section 2.06.     Paying Agent to Hold Money in Trust . On or prior to each due date of the principal and interest on any Security, the Company shall deposit with the Paying Agent (or if the Company or a Wholly Owned Subsidiary of the Company is acting as Paying Agent, segregate and hold in trust for the benefit of the Persons entitled thereto) a sum sufficient to pay such principal and interest when so becoming due. The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Securityholders or the Trustee all money held by the Paying Agent for the payment of principal of or interest on the Securities and shall notify the Trustee of any default by the Company in making any such payment. If the Company or a Wholly Owned Subsidiary of the Company acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by the Paying Agent. Upon complying with this Section, the Paying Agent shall have no further liability for the money delivered to the Trustee.

Section 2.07.     Securityholder Lists . The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders. If the Trustee is not the Registrar, the Company shall 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 Securityholders.

 

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Section 2.08.     Exchange and Registration of Transfer of Securities . The Company shall cause to be kept at the Corporate Trust Office the Register in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Register shall be in written form or in any form capable of being converted into written form within a reasonably prompt period of time.

Upon surrender for registration of transfer of any Securities to the Registrar or any co-registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.08 and in Section 2.10, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture.

Securities may be exchanged for other Securities of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture, upon surrender of the Securities to be exchanged at any such office or agency maintained by the Company pursuant to Section 4.02. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities that the Holder making the exchange is entitled to receive bearing registration numbers not contemporaneously outstanding.

All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

All Securities presented or surrendered for registration of transfer or for exchange, repurchase or conversion shall (if so required by the Company or the Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company, duly executed by the Holder thereof or his attorney duly authorized in writing.

No service charge shall be made to any Holder for any registration of, transfer or exchange of Securities, but the Company may require payment by the Holder of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities.

Neither the Company nor the Trustee nor any Registrar shall be required to exchange, issue or register a transfer of (a) any Securities or portions thereof surrendered for conversion pursuant to Article 10 or (b) any Securities or portions thereof tendered for repurchase (and not withdrawn) pursuant to Section 3.04.

 

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Section 2.09.     Global Securities . The following provisions shall apply to Global Securities:

(a)    Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary or a nominee thereof and delivered to the Depositary or a nominee thereof or custodian for the Global Securities therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.

(b)    Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Physical Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary or a nominee thereof unless (A) the Depositary (x) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or (y) has ceased to be a clearing agency registered under the Exchange Act, and a successor depositary has not been appointed by the Company within 90 calendar days, or (B) the Company, in its sole discretion, notifies the Trustee in writing that it no longer wishes to have all the Securities represented by Global Securities. Any Global Securities exchanged pursuant to this Section 2.09(b) shall be so exchanged in whole and not in part.

(c)    In addition, Physical Securities will be issued in exchange for beneficial interests in a Global Security upon request by or on behalf of the Depositary in accordance with customary procedures following the request of a beneficial owner seeking to enforce its rights under the Securities or this Indenture upon the occurrence and during the continuance of an Event of Default.

(d)    Physical Securities issued in exchange for a Global Security or any portion thereof pursuant to Section 2.09(b) or Section 2.09(c) shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Securities or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear any legends required hereunder. Any Global Securities to be exchanged shall be surrendered by the Depositary to the Trustee, as Registrar, provided that pending completion of the exchange of a Global Security, the Trustee acting as custodian for the Global Securities for the Depositary or its nominee with respect to such Global Securities, shall reduce the principal amount thereof, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and make available for delivery the Physical Securities issuable on such exchange to or upon the written order of the Depositary or an authorized representative thereof.

 

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(e)    In the event of the occurrence of any of the events specified in Section 2.09(b) above or upon any request described in Section 2.09(c), the Company will promptly make available to the Trustee a sufficient supply of Physical Securities in definitive, fully registered form, without interest coupons.

(f)    Neither any members of, or participants in, the Depositary (“ Agent Members ”) nor any other Persons on whose behalf Agent Members may act shall have any rights under this Indenture with respect to any Global Securities registered in the name of the Depositary or any nominee thereof, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and Holder of such Global Securities for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Securities.

(g)    At such time as all interests in a Global Security have been repurchased, converted, cancelled or exchanged for Securities in certificated form, such Global Security shall, upon receipt thereof, be canceled by the Trustee in accordance with standing procedures and instructions existing between the Depositary and the custodian for the Global Security. At any time prior to such cancellation, if any interest in a Global Security is repurchased, converted, cancelled or exchanged for Securities in certificated form, the principal amount of such Global Security shall, in accordance with the standing procedures and instructions existing between the Depositary and the custodian for the Global Security, be appropriately reduced, and an endorsement shall be made on such Global Security, by the Trustee or the custodian for the Global Security, at the direction of the Trustee, to reflect such reduction.

Section 2.10.     Transfer Restrictions .

(a)    Every Security that bears or is required under this Section 2.10(a) to bear the legend set forth in this Section 2.10(a) (together with any Common Stock issued upon conversion of the Securities and required to bear the legend set forth in Section 2.10(b), collectively, the “ Restricted Securities ”) shall be subject to the restrictions on transfer set forth in this Section 2.10(a) (including the legend set forth below), unless such restrictions on transfer shall be eliminated or otherwise waived by written consent of the Company, and the Holder of each such Restricted Security, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in this Section 2.10(a) and Section 2.10(b), the term “transfer” encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.

 

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Until the date (the “ Resale Restriction Termination Date ”) that is the later of (1) the date that is one year after the Last Date of Original Issuance, or such shorter period of time as permitted by Rule 144 under the Securities Act or any successor provision thereto, and (2) such later date, if any, as may be required by applicable law, any certificate evidencing such Security (and all securities issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued upon conversion thereof which shall bear the legend set forth in Section 2.10(b), if applicable) shall bear a legend in substantially the following form (unless such Securities have been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or sold pursuant to the exemption from registration provided by Rule 144 under the Securities Act or any similar provision then in force under the Securities Act, or unless otherwise agreed by the Company in writing, with notice thereof to the Trustee):

THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

(1)    REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND

(2)    AGREES FOR THE BENEFIT OF NUANCE COMMUNICATIONS, INC. (THE “ COMPANY ”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:

(A)    TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR

 

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(B)    PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR

(C)    TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR

(D)    PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

No transfer of any Security prior to the Resale Restriction Termination Date will be registered by the Registrar unless the applicable box on the Form of Assignment has been checked.

Any Security (or security issued in exchange or substitution therefor) as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of such Security for exchange to the Registrar in accordance with the provisions of this Article 2, be exchanged for a new Security or Securities, of like tenor and aggregate principal amount, which shall not bear the restrictive legend required by this Section 2.10(a) and shall not be assigned a restricted CUSIP number. The Company shall be entitled to instruct the custodian in writing to so surrender any Global Security as to which such restrictions on transfer shall have expired in accordance with their terms for exchange, and, upon such instruction, the custodian shall so surrender such Global Security for exchange; and any new Global Security so exchanged therefor shall not bear the restrictive legend specified in this Section 2.10(a) and shall not be assigned a restricted CUSIP number. The Company shall promptly notify the Trustee upon the occurrence of the Resale Restriction Termination Date and promptly after a registration statement, if any, with respect to the Securities or any Common Stock issued upon conversion of the Securities has been declared effective under the Securities Act.

Notwithstanding any other provisions of this Indenture (other than the provisions set forth in this Section 2.10(a)), a Global Security may not be transferred as a whole or in part except (i) by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or

 

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another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary and (ii) for transfers of portions of a Global Security in certificated form made upon request of a member of, or a participant in, the Depositary (for itself or on behalf of a beneficial owner) by written notice given to the Trustee by or on behalf of the Depositary in accordance with customary procedures of the Depositary and in compliance with this Section 2.10(a).

The Depositary shall be a clearing agency registered under the Exchange Act. The Company initially appoints The Depository Trust Company to act as Depositary with respect to each Global Security. Initially, each Global Security shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the Depositary, and deposited with the Trustee as custodian for Cede & Co.

Physical Securities issued in exchange for all or a part of the Global Securities pursuant to this Section 2.10(a) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such Physical Securities to the Persons in whose names such Physical Securities are so registered.

(b)    Until the Resale Restriction Termination Date, any stock certificate representing Common Stock issued upon conversion of such Security, if any, shall bear a legend in substantially the following form (unless the Security or such Common Stock has been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or pursuant to the exemption from registration provided by Rule 144 under the Securities Act or any similar provision then in force under the Securities Act, or such Common Stock has been issued upon conversion of Securities that have been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or pursuant to the exemption from registration provided by Rule 144 under the Securities Act or any similar provision then in force under the Securities Act, or unless otherwise agreed by the Company with written notice thereof to the Trustee and any transfer agent for the Common Stock):

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

(1)    REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND

 

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(2)    AGREES FOR THE BENEFIT OF NUANCE COMMUNICATIONS, INC. (THE “ COMPANY ”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:

(A)    TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR

(B)    PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR

(C)    TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR

(D)    PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

Any such Common Stock as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of the certificates representing such shares of Common Stock for exchange in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of Common Stock, which shall not bear the restrictive legend required by this Section 2.10(b).

 

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(c)    Any Security or Common Stock issued upon the conversion or exchange of a Security that is repurchased or owned by the Company or any Affiliate thereof may not be resold by the Company or such Affiliate unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such Securities or Common Stock, as the case may be, no longer being “restricted securities” (as defined under Rule 144 under the Securities Act).

Section 2.11.     Responsibilities and Obligations of the Trustee . The Trustee shall have no responsibility or obligation to any Agent Members or any other Person with respect to the accuracy of the books or records, or the acts or omissions, of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Securities or with respect to the delivery to any Agent Member or other Person (other than the Depositary) of any notice or the payment of any amount, under or with respect to such Securities. All notices and communications to be given to the Holders of Securities and all payments to be made to Holders of Securities under the Securities shall be given or made only to or upon the order of the registered Holders of Securities (which shall be the Depositary or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Securities shall be exercised only through the Depositary subject to the customary procedures of the Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its Agent Members.

The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Securities (including any transfers between or among Agent Members) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

Section 2.12.     Replacement Securities . If a mutilated Security is surrendered to the Registrar or if the Securityholder of a Security claims that the Security has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Security if the requirements of Section 8-405 of the Uniform Commercial Code are met, such that the Securityholder (i) notifies the Company or the Trustee within a reasonable time after he has notice of such loss, destruction or wrongful taking and the Registrar does not register a transfer prior to receiving such notification, (ii) makes such request to the Company or the Trustee prior to the Security being acquired by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a “ Protected Purchaser ”) and

 

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(iii) satisfies any other reasonable requirements of the Trustee and the Company. If required by the Trustee or the Company, such Securityholder shall furnish an indemnity bond sufficient in the judgment of the Trustee to protect the Trustee, the Paying Agent, the Conversion Agent, the Registrar or any of its agents, and sufficient in the judgment of the Company to protect the Company, the Trustee, the Paying Agent, the Conversion Agent, the Registrar or any of the Trustee’s agents from any loss that any of them may suffer if a Security is replaced. The Company and the Trustee may charge the Securityholder for their expenses in replacing a Security. In case any Security which has matured or is about to mature or has been properly tendered for repurchase on a Fundamental Change Repurchase Date (and not withdrawn), as the case may be, or is to be converted into Common Stock, shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment of or convert or authorize the conversion of the same (without surrender thereof except in the case of a mutilated Securities), as the case may be, if the applicant for such payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of them harmless for any loss, liability, cost or expense caused by or in connection with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent evidence to their satisfaction of the destruction, loss or theft of such Securities and of the ownership thereof.

Every replacement Security is an additional obligation of the Company.

The provisions of this Section 2.12 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, lost, destroyed or wrongfully taken Securities.

Section 2.13.     Outstanding Securities . Securities outstanding at any time are all Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation and those described in this Section as not outstanding. A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.

If a Security is replaced pursuant to Section 2.12, it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a Protected Purchaser.

If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a Fundamental Change Repurchase Date or Maturity Date money sufficient to pay all principal and interest payable on that date with respect to the Securities (or portions thereof) to be repurchased or

 

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maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the Securityholders on that date pursuant to the terms of this Indenture, then on and after that date such Securities (or portions thereof) cease to be outstanding and interest on them ceases to accrue.

Section 2.14.     Temporary Securities . Pending the preparation of Securities in certificated form, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon the written request of the Company, authenticate and deliver temporary Securities (printed or lithographed). Temporary Securities shall be issuable in any authorized denomination, and substantially in the form of the Securities in certificated form, but with such omissions, insertions and variations as may be appropriate for temporary Security, all as may be determined by the Company. Every such temporary Security shall be executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially the same manner, and with the same effect, as the Securities in certificated form. Without unreasonable delay, the Company will execute and deliver to the Trustee or such authenticating agent Securities in certificated form and thereupon any or all temporary Securities may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 4.02 and the Trustee or such authenticating agent shall authenticate and make available for delivery in exchange for such temporary Securities an equal aggregate principal amount of Securities in certificated form. Such exchange shall be made by the Company at its own expense and without any charge therefor. Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Securities in certificated form authenticated and delivered hereunder.

Section 2.15.     Cancellation . The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Securities surrendered for registration of transfer, exchange, payment or cancellation and deliver canceled Securities to the Company pursuant to written direction by an Officer. The Company may not issue new Securities to replace Securities it has paid or delivered to the Trustee for cancellation. The Trustee shall not authenticate Securities in place of canceled Securities other than pursuant to the terms of this Indenture.

Section 2.16.     CUSIP and ISIN Numbers . The Company in issuing the Securities may use “CUSIP” and “ISIN” numbers (if then generally in use) and, if so, the Trustee shall use “CUSIP” and “ISIN” numbers in notices of

 

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repurchase as a convenience to Securityholders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a repurchase and that reliance may be placed only on the other identification numbers printed on the Securities, and any such repurchase shall not be affected by any defect in or omission of such numbers.

Section 2.17.     Additional Securities; Repurchases . The Company may, from time to time without the consent of the Holders of outstanding Securities, increase the principal amount of the Securities by issuing additional Securities in the future pursuant to this Indenture (“ Additional Securities ”) having terms and conditions identical to those of the other outstanding Securities, except that Additional Securities may have a different initial date from which interest begins to accrue thereon so that the Additional Securities are fungible with outstanding Securities; provided that if the Additional Securities are not fungible with the Securities for U.S. federal income tax and securities laws purposes, the Additional Securities will have a separate CUSIP number from the Securities. The Securities originally issued pursuant to the Purchase Agreement and any Additional Securities shall be treated as a single class for all purposes under this Indenture, including waivers, amendments, repurchases, offers to purchase and United States federal tax purposes. No Additional Securities may be issued if on the issue date therefor any Event of Default has occurred and is continuing. The Company may, to the extent permitted by law, repurchase any Security in the open market or by tender offer at any price or by private agreement. Any Security repurchased by the Company may, at the Company’s option, be surrendered to the Trustee for cancellation, but may not be reissued or resold by the Company. Any Security surrendered for cancellation may not be reissued or resold and will be promptly cancelled.

ARTICLE 3

REDEMPTION AND REPURCHASE OF SECURITIES

Section 3.01.     No Redemption of Securities . The Company may not redeem the Notes prior to the Maturity Date.

Section 3.02.     [Reserved] .

Section 3.03.     [Reserved] .

 

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Section 3.04.     Repurchase at Option of Holders Upon a Fundamental Change . (a) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Holder of Securities shall have the right, at such Holder’s option, to require the Company to repurchase, at the Fundamental Change Repurchase Price (as defined below), all of such Holder’s Securities, or any portion thereof that is a multiple of $1,000 principal amount, on a date (the “ Fundamental Change Repurchase Date ”) specified by the Company, that is not less than 20 Business Days nor more than 35 Business Days after the date of the Company Repurchase Notice related to such Fundamental Change at a cash repurchase price equal to 100% of the principal amount of the Securities being repurchased, plus accrued and unpaid interest to, but excluding, the Fundamental Change Repurchase Date (the “ Fundamental Change Repurchase Price ”), subject to the satisfaction by the Holder of the requirements set forth in Section 3.04(c); provided that if such Fundamental Change Repurchase Date falls after an Interest Record Date and on or prior to the corresponding interest payment date, then the interest payable on the Fundamental Change Repurchase Date shall be paid on the Fundamental Change Repurchase Date to the Holders of record of the Securities on the applicable Interest Record Date instead of the Holders surrendering the Securities for repurchase on such date.

(b)    On or before the 15th calendar day after the occurrence of a Fundamental Change, the Company will provide to the Trustee, the Paying Agent and all Holders of record of the Securities on the date of the Fundamental Change at their addresses shown in the Register of the Registrar and to beneficial owners of the Securities to the extent required by applicable law, the Company Repurchase Notice as set forth in Section 3.06 with respect to such Fundamental Change.

No failure of the Company to give the foregoing notices and no defect therein shall limit the repurchase rights of Holders of Securities or affect the validity of the proceedings for the repurchase of the Securities pursuant to this Section 3.04.

(c)    For Securities to be repurchased at the option of the Holder, the Holder must deliver to the Paying Agent, prior to 5:00 p.m., New York City time, on the Business Day preceding the Fundamental Change Repurchase Date, (i) a written notice to the Paying Agent of exercise of repurchase (the “ Fundamental Change Repurchase Notice ”) in the form set forth on the reverse of the Securities duly completed (if the Securities are certificated) or comply with applicable Depositary procedures (if the Securities are represented by a Global Security), together with (ii) such Securities duly endorsed for transfer (if the Securities are certificated) or book-entry transfer of such Securities (if the Securities are represented by a Global Security). The delivery of such Securities to the Paying Agent with, or at any time after delivery of, the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent shall be a condition to payment by the Company to the Holder of the Fundamental Change

 

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Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 3.04 only if the Securities so delivered to the Paying Agent shall conform in all respects to the description thereof in the Fundamental Change Repurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Securities for repurchase shall be determined by the Company, whose determination shall be final and binding absent manifest error.

(d)    The Company shall repurchase from the Holder thereof, pursuant to this Section 3.04, a portion of a Security, if the principal amount of such portion is $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Security also apply to the repurchase of such portion of such Security.

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

Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.04 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Fundamental Change Repurchase Date and the time of the book-entry transfer or delivery of the Securities.

Section 3.05.     [Reserved] .

Section 3.06.     Company Repurchase Notice; Tender Offer Compliance . (a) In connection with any repurchase of Securities, the Company shall, on or before the 15th calendar day after the occurrence of a Fundamental Change, give notice to Holders (with a copy to the Trustee) setting forth information specified in this Section 3.06 (the “ Company Repurchase Notice ”).

Each Company Repurchase Notice shall:

(1)    state the Fundamental Change Repurchase Price and the Fundamental Change Repurchase Date to which the Company Repurchase Notice relates;

(2)    state the circumstances constituting the Fundamental Change;

(3)    state that the Fundamental Change Repurchase Price will be paid in cash;

 

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(4)    state that Holders must exercise their right to elect repurchase by 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date;

(5)    include a form of Fundamental Change Repurchase Notice;

(6)    state the name and address of the Paying Agent;

(7)    state that Securities must be surrendered to the Paying Agent to collect the repurchase price;

(8)    state that a Holder may withdraw its Fundamental Change Repurchase Notice at any time prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivering a valid written notice of withdrawal in accordance with Section 3.07;

(9)    state whether the Securities are then convertible, the then applicable Conversion Rate, including expected changes, if any, in the Conversion Rate resulting from the Fundamental Change transaction and expected changes in the cash, shares or other property deliverable upon conversion of the Securities as a result of the occurrence of the Fundamental Change;

(10)    that Securities as to which a Fundamental Change Repurchase Notice has been given may be converted only if the Fundamental Change Repurchase Notice is withdrawn in accordance with the terms of this Indenture;

(11)    state the amount of interest accrued and unpaid per $1,000 principal amount of Securities to, but excluding, the Fundamental Change Repurchase Date; and

(12)    state the CUSIP number of the Securities.

A Company Repurchase Notice may be given by the Company or, at the Company’s request, the Trustee shall give such Company Repurchase Notice in the Company’s name and at the Company’s expense; provided that the text of the Company Repurchase Notice shall be prepared by the Company.

(b)    The Company will, to the extent applicable: (i) comply with the provisions of Rule 13e-4 and Rule 14e-1 (or any successor provision) under the Exchange Act that may be applicable at the time of the repurchase of the Securities, (ii) file the related Schedule TO (or any successor schedule, form or report) under the Exchange Act or any other schedule required in connection with any offer by the Company to repurchase the Securities and (iii) comply with all other federal and state securities laws in connection with any offer by the Company to repurchase the Securities.

 

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Section 3.07.     Effect of Repurchase Notice; Withdrawal . Upon receipt by the Paying Agent of the Fundamental Change Repurchase Notice specified in Section 3.04, the Holder of the Securities in respect of which such Fundamental Change Repurchase Notice, was given shall (unless such Fundamental Change Repurchase Notice is validly withdrawn in accordance with the following paragraph) thereafter be entitled to receive solely the repurchase price with respect to such Securities. Such repurchase price shall be paid to such Holder, subject to receipt of funds and/or the Securities by the Paying Agent, promptly following the later of (x) the Fundamental Change Repurchase Date with respect to such Securities (provided the Holder has satisfied the conditions in Section 3.04) and (y) the time of book-entry transfer or delivery of such Securities to the Paying Agent by the Holder thereof in the manner required by Section 3.04. The Securities in respect of which a Fundamental Change Repurchase Notice has been given by the Holder thereof may not be converted pursuant to Article 10 hereof on or after the date of the delivery of such Fundamental Change Repurchase Notice unless such Fundamental Change Repurchase Notice has first been validly withdrawn.

A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the office of the Paying Agent in accordance with the Fundamental Change Repurchase Notice, at any time prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:

(a)    the certificate number, if any, of the Securities in respect of which such notice of withdrawal is being submitted if they are in certificated form, or the appropriate Depositary information, in accordance with appropriate Depositary procedures, if the Securities in respect of which such notice of withdrawal is being submitted is represented by a Global Security,

(b)    the principal amount of the Securities with respect to which such notice of withdrawal is being submitted, and

(c)    the principal amount, if any, of such Securities which remains subject to the original Fundamental Change Repurchase Notice, which shall be $1,000 or a whole multiple of $1,000.

If a Fundamental Change Repurchase Notice is properly withdrawn, the Company shall not be obligated to repurchase the Securities listed in such Fundamental Change Repurchase Notice.

 

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Section 3.08.     Deposit of Fundamental Change Repurchase Price . Prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date, the Company shall deposit with the Paying Agent or, if the Company is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.06, an amount of cash (in immediately available funds if deposited on the Fundamental Change Repurchase Date), sufficient to pay the aggregate repurchase price of all the Securities or portions thereof that are to be repurchased as of the Fundamental Change Repurchase Date.

If on the Fundamental Change Repurchase Date the Paying Agent holds cash sufficient to pay the repurchase price and related accrued interest of the Securities that Holders have elected to require the Company to repurchase in accordance with Section 3.04, then, on the Fundamental Change Repurchase Date, such Securities will cease to be outstanding, and interest will cease to accrue (whether or not book entry transfer or delivery of the Securities has been made to the Paying Agent) and all other rights of the Holders of such Securities will terminate, other than the right to receive the repurchase price and any accrued interest upon delivery or book-entry transfer of the Securities. This will be the case whether or not book-entry transfer of the Securities has been made or the Securities has been delivered to the Paying Agent.

No Securities may be repurchased on any date at the option of Holders upon a Fundamental Change if the principal amount of the Securities has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Securities).

Section 3.09.     Securities Repurchased in Part . Upon presentation of any Securities repurchased only in part, the Company shall execute and the Trustee shall authenticate and make available for delivery to the Holder thereof, at the expense of the Company, a new Security or Securities, of any authorized denomination, in aggregate principal amount equal to the unrepurchased portion of the Securities presented.

ARTICLE 4

COVENANTS

Section 4.01.     Payment of Securities . The Company shall promptly pay the principal of and interest on the Securities on the dates and in the manner provided in the Securities and in this Indenture in each such case, prior to 11:00 a.m., New York City time. Principal and interest shall be considered paid on the date due if on such date the Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all principal and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Securityholders on that date pursuant to the terms of this Indenture.

 

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Section 4.02.     Maintenance of Office or Agency . The Company will maintain an office or agency in the United States where the Securities may be surrendered for registration of transfer or exchange or for presentation for payment or for conversion or repurchase and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. As of the date of this Indenture, such office is located at the office of the Trustee located at 100 Wall Street, Suite 1600, New York, NY 10005 and, at any other time, at such other address as the Trustee may designate from time to time by notice to the Company. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency not designated or appointed by the Trustee. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office.

The Company may also from time to time designate co-registrars and one or more offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

Section 4.03.     Rule  144A Information Requirement and Annual Reports .

(a)    The Company covenants and agrees that it shall, during any period in which it is not subject to Section 13 or 15(d) under the Exchange Act, make available to any holder or beneficial holder of Securities or any Common Stock issued upon conversion thereof which continue to be Restricted Securities and any prospective purchaser of Securities or such Common Stock designated by such holder or beneficial holder, the information required pursuant to Rule 144A(d)(4) under the Securities Act upon the request of any holder or beneficial holder of the Securities or such Common Stock, all to the extent required to enable such holder or beneficial holder to sell its Securities or Common Stock without registration under the Securities Act within the limitation of the exemption provided by Rule 144A. The Company shall take such further action as any holder or beneficial holder of Securities or such Common Stock may reasonably request to the extent required from time to time to enable such holder or beneficial owner to sell such Securities or shares of Common Stock in accordance with Rule 144A under the Securities Act, as such rule may be amended from time to time.

 

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(b)    The Company shall file with the Trustee within 15 days after the same are required to be filed with the Commission, copies of any documents or reports that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act). Any such document or report that the Company files with the Commission via the Commission’s EDGAR system shall be deemed to be filed with the Trustee for purposes of this Section 4.03(b) at the time such documents are filed via the EDGAR system.

(c)    Delivery of the reports and documents listed in subsection (b) above to the Trustee is for informational purposes only, and the Trustee’s receipt of such reports and documents shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely on an Officers’ Certificate).

(d)    If, at any time during the six-month period beginning on, and including, the date that is six months after the Last Original Issuance Date, the Company fails to timely file any document or report that it is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods thereunder and other than reports on Form 8-K), or the Securities are not otherwise freely tradable by Holders other than the Company’s Affiliates or Holders that were the Company’s Affiliates during the preceding three months (as a result of restrictions pursuant to U.S. securities law or the terms of this Indenture or the Securities), the Company shall pay Additional Interest on the Securities. Such Additional Interest shall accrue on the Securities initially at a rate of 0.25% per annum and, beginning on the 91st day immediately following the first day the Company fails to file such information or such Securities are not otherwise freely tradable, at a rate of 0.50% per annum, in each case of the principal amount of Securities outstanding on each day during such periods for which the Company’s failure to file has occurred and is continuing or the Securities are not freely tradable. As used in this Section 4.03(d), documents or reports that the Company is required to “file” with the Commission pursuant to Section 13 or 15(d) of the Exchange Act does not include documents or reports that the Company furnishes to the Commission pursuant to Section 13 or 15(d) of the Exchange Act.

(e)    If, and for so long as, the restrictive legend on the Securities specified in Section 2.10(a) has not been removed, the Securities are assigned a restricted CUSIP or the Securities are not otherwise freely tradable by Holders other than the Company’s Affiliates or Holders that were the Company’s Affiliates during the preceding three months (without restrictions pursuant to U.S. securities law or the terms of this Indenture or the Securities) as of the fifth Business Day following the Free Trade Date, the Company shall pay Additional Interest on the Securities at a rate equal to 0.50% per annum of the principal amount of Securities outstanding until

 

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the restrictive legend on the Securities has been removed in accordance with Section 2.10(a) and the Securities are freely tradable by Holders other than the Company’s Affiliates (without restrictions pursuant to U.S. securities law or the terms of this Indenture or the Securities).

(f)    Additional Interest will be payable in arrears on each Interest Payment Date following accrual in the same manner as interest on the Securities.

(g)    The Additional Interest that is payable in accordance with Section 4.03(d) and Section 4.03(e) shall be in addition to, and not in lieu of, any Additional Interest that may be payable as a result of the Company’s election pursuant to Section 6.13.

Section 4.04.     Existence . Subject to Article 5, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence and rights (charter and statutory); provided that the Company shall not be required to preserve any such right if the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders of Securities.

Section 4.05.     Payment of Taxes and Other Claims . The Company will pay or discharge, or cause to be paid or discharged, before the same may become delinquent, (i) all taxes, assessments and governmental charges levied or imposed upon the Company or any Significant Subsidiary or upon the income, profits or property of the Company or any Significant Subsidiary, (ii) all claims for labor, materials and supplies which, if unpaid, might by law become a lien or charge upon the property of the Company or any Significant Subsidiary and (iii) all stamp taxes and other duties, if any, which may be imposed by the United States or any political subdivision thereof or therein in connection with the issuance, transfer, exchange, conversion or repurchase of any Securities or with respect to this Indenture; provided that, in the case of clauses (i) and (ii), the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim (A) if the failure to do so will not, in the aggregate, have a material adverse impact on the Company, or (B) if the amount, applicability or validity is being contested in good faith by appropriate proceedings.

Section 4.06.     Compliance Certificate . The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company an Officers’ Certificate stating, as to each such Officer signing such certificate, whether to such Officer’s knowledge the Company during such preceding fiscal year has kept, observed, performed and fulfilled the covenants contained in this Indenture and, if the Company

 

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shall be in Default, the certificate shall describe the Default, its status and what action the Company is taking or proposes to take with respect thereto. The Company also shall comply with Section 314(a)(4) of the TIA.

Section 4.07.     Additional Interest Notice . If the Company is required to pay Additional Interest to Holders of Securities pursuant to Section 4.03(d), Section 4.03(e) or Section 6.13, the Company will provide written notice (“ Additional Interest Notice ”) to the Trustee of its obligation to pay Additional Interest no later than two Business Days prior to the proposed payment date for Additional Interest, and the Additional Interest Notice shall set forth the amount of Additional Interest to be paid by the Company on such payment date. The Trustee shall not at any time be under any duty or responsibility to any Holder of Securities to determine the Additional Interest, or with respect to the nature, extent or calculation of the amount of Additional Interest when made, or with respect to the method employed in such calculation of the Additional Interest.

ARTICLE 5

SUCCESSOR COMPANY

Section 5.01.     When Company May  Merge or Transfer Assets . The Company shall not in a single transaction or a series of related transactions consolidate with or merge with or into any other Person (other than a Subsidiary of the Company), or sell, convey, transfer or lease its property and assets substantially as an entirety to any Person (other than to one or more of the Subsidiaries of the Company as an entirety or substantially as an entirety), unless:

(a)    either (i) the Company is the continuing corporation, or (ii) the resulting, surviving or transferee person (if other than the Company) is a corporation or limited liability company organized and existing under the laws of the United States, any state thereof or the District of Columbia and such person assumes, by a supplemental indenture in a form reasonably satisfactory to the Trustee, all of the Company’s obligations under the Securities and this Indenture;

(b)    immediately after giving effect to the transaction described above, no Default or Event of Default, has occurred and is continuing;

(c)    if as a result of such transaction the Securities become convertible into common stock or other securities issued by a third party, such third party fully and unconditionally guarantees all obligations of the Company or such successor under the Securities and this Indenture; and

 

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(d)    the Company has delivered to the Trustee the Officers’ Certificate and Opinion of Counsel, if any, requested by the Trustee pursuant to this Indenture.

Section 5.02.     Successor to be Substituted . In case of any such consolidation, merger, sale, conveyance, transfer or lease in which the Company is not the continuing corporation and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and reasonably satisfactory in form and substance to the Trustee, of the due and punctual payment of the principal of, and interest on all of the Securities, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed or satisfied by the Company, such successor Person shall succeed to and be substituted for the Company, with the same effect as if it had been named herein as a party hereto, and the Company (except in the case of a lease) shall be discharged from its obligations under the Securities and this Indenture. Such successor Person thereupon may cause to be signed, and may issue the Securities either in its own name or in the name of the Company.

Upon the order of such successor Person instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered, any Securities that previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Securities that such successor Person thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof. In the event of any such consolidation, merger, sale, conveyance, transfer or lease, upon compliance with this Article 5 the Person named as the “Company” in the first paragraph of this Indenture or any successor that shall thereafter have become such in the manner prescribed in this Article 5 may be dissolved, wound up and liquidated at any time thereafter and such Person shall be discharged from its liabilities as obligor and maker of the Securities and from its obligations under this Indenture.

Section 5.03.     Opinion of Counsel to be Given to Trustee . Prior to execution of any supplemental indenture pursuant to this Article 5, the Trustee shall receive an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance, transfer or lease and any such assumption complies with the provisions of this Article 5.

 

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ARTICLE 6

DEFAULTS AND REMEDIES

Section 6.01.     Events of Default . An “ Event of Default ” occurs if:

(a)    the Company defaults in any payment of interest on any Security when the same becomes due and payable and such default continues for a period of 30 calendar days;

(b)    the Company defaults in the payment of the principal of any Security when the same becomes due and payable at maturity, or the Company defaults in the payment of the Fundamental Change Repurchase Price when due;

(c)    the Company fails to deliver cash and, if applicable, shares of Common Stock (including any Additional Shares), or a combination of the foregoing, as required pursuant to Article 10 upon the conversion of any Securities and such failure continues for five Business Days following the scheduled settlement date for such conversion;

(d)    the Company fails to provide notice of the anticipated effective date or actual effective date of a Fundamental Change on a timely basis as required in this Indenture;

(e)    the Company fails to perform or observe any other term, covenant or agreement contained in the Securities or this Indenture (other than those referred to in (a), (b), (c) or (d) above) and such failure continues for 60 days after receipt by the Company of a Notice of Default;

(f)    a failure to pay when due (whether at stated maturity or otherwise) by the Company or any Significant Subsidiary of the Company, after the expiration of any applicable grace period, of principal of or interest on indebtedness for borrowed money, where the amount of such unpaid principal and/or interest is in an aggregate amount in excess of $50 million (or a foreign currency equivalent), or a default that results in the acceleration of maturity, of any indebtedness for borrowed money of the Company or any Significant Subsidiary of the Company in an aggregate amount in excess of $50 million (or its foreign currency equivalent at the time), in each case, if both (i) such Indebtedness is not discharged and (ii) such acceleration is not rescinded, stayed or annulled, within a period of 30 calendar days after receipt by the Company of a Notice of Default;

(g)    a final judgment for the payment of $50 million or more (excluding any amounts covered by insurance or subject to a binding indemnity from a financially responsible third

 

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party with resources sufficient to pay such indemnity obligation when due) rendered against the Company or any Significant Subsidiary of the Company, which judgment is not discharged or stayed within 90 days after (i) the date on which the right to appeal thereof has expired if no such appeal has commenced, or (ii) the date on which all rights to appeal have been extinguished;

(h)    the Company or any Significant Subsidiary of the Company pursuant to or within the meaning of any Bankruptcy Law:

(i)    commences a voluntary case;

(ii)    consents to the entry of an order for relief against it in an involuntary case;

(iii)    consents to the appointment of a Custodian of it or for any substantial part of its property; or

(iv)    makes a general assignment for the benefit of its creditors;

or takes any comparable action under any foreign laws relating to insolvency;

(i)    a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

(i)    is for relief against the Company or any Significant Subsidiary of the Company in an involuntary case;

(ii)    appoints a Custodian of the Company or any Significant Subsidiary of the Company or for any substantial part of its property; or

(iii)    orders the winding up or liquidation of the Company or any Significant Subsidiary of the Company;

or any similar relief is granted under any foreign laws, and, in each such case, the order or decree remains unstayed and in effect for 60 consecutive days.

The foregoing shall constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.

 

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The term “ Bankruptcy Law ” means Title 11, United States Code , or any similar Federal or state law for the relief of debtors. The term “ Custodian ” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.

A Default under clause (e) or (f) above is not an Event of Default until the Trustee or the Securityholders of at least 25% in aggregate principal amount of the outstanding Securities notify the Company or the Company and the Trustee, respectively, of the Default and the Company does not cure such Default within the time specified after receipt of such notice. Such notice must specify the Default, demand that it be remedied and state that such notice is a “ Notice of Default .” When any Default under this Section 6.01 is cured in accordance herewith, it shall cease to be a Default.

The Company shall deliver to the Trustee, promptly upon becoming aware of any Default, written notice in the form of an Officers’ Certificate of any Default known to the party, its status and what action the Company is taking or proposes to take with respect thereto.

Section 6.02.     Acceleration . If an Event of Default (other than an Event of Default specified in Section 6.01(h) or Section 6.01(i) with respect to the Company) occurs and is continuing, the Trustee by written notice to the Company, or the Securityholders of at least 25% in principal amount of the outstanding Securities by written notice to the Company and the Trustee, may declare the principal of and accrued but unpaid interest on all the Securities to be due and payable. Upon such a declaration, such principal and interest shall be due and payable immediately. If an Event of Default specified in Section 6.01(h) or Section 6.01(i) with respect to the Company occurs, the principal of and interest on all the Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Securityholders. The Securityholders of a majority in principal amount of the Securities by notice to the Trustee may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if (i) the Company has paid (or deposited with the Trustee) all overdue interest on all the Securities and the principal amount of the Securities that has become due otherwise than by such acceleration or declaration, as well as paid interest upon overdue interest to the extent that payment of such interest is lawful and paid to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and (ii) all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of acceleration. No such rescission shall affect any subsequent Default or impair any right consequent thereto.

 

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Section 6.03.     Other Remedies . If an Event of Default occurs and is continuing, and the principal of and accrued but unpaid interest on the Securities has been declared due and payable as provided in Section 6.02 the Trustee may pursue any available remedy to collect the payment of principal of or interest on the Securities or to enforce the performance of any provision of the Securities or this Indenture.

The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative.

Section 6.04.     Waiver of Defaults and Events of Default . The Holders of a majority in principal amount of the Securities outstanding by notice to the Trustee may on behalf of the Holders of all the Securities, waive any Default or Event of Default and its consequences except (i) a default in the payment of the principal of or interest on a Security when due, (ii) an Event of Default arising from the failure to repurchase any Security when required pursuant to the terms of this Indenture, (iii) an Event of Default arising from the failure of the Company to deliver, cash and, if applicable, shares of Common Stock upon the conversion of any Securities pursuant to the terms of this Indenture or (iv) a default in respect of a provision that under Section 9.02 cannot be amended without the consent of each Securityholder affected. When an Event of Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Event of Default or impair any consequent right.

Section 6.05.     Control by Majority . The Securityholders of a majority in aggregate principal amount of the outstanding Securities may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or, subject to Section 7.01, that the Trustee determines is unduly prejudicial to the rights of other Securityholders or would involve the Trustee in personal liability; provided that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. Prior to taking any action hereunder, the Trustee shall be entitled to indemnification satisfactory to it in its sole discretion against all losses and expenses caused by taking or not taking such action.

 

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Section 6.06.     Limitation on Suits . Except to enforce the right to receive payment of principal or interest when due or the conversion of the Securities in accordance with the Indenture, no Securityholder may pursue any remedy with respect to this Indenture or the Securities unless:

(a)    the Securityholder gives to the Trustee written notice stating that an Event of Default is continuing;

(b)    the Securityholders of at least 25% in principal amount of the Securities make a written request to the Trustee to pursue the remedy;

(c)    such Securityholder or Securityholders offer to the Trustee security or indemnity reasonably satisfactory to the Trustee against any loss, liability or expense of the Trustee;

(d)    the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and

(e)    the Securityholders of a majority in principal amount of the Securities do not give the Trustee a direction inconsistent with the request.

A Securityholder may not use this Indenture to prejudice the rights of another Securityholder or to obtain a preference or priority over another Securityholder.

Anything contained in this Indenture or the Securities to the contrary notwithstanding, the Holder of any Securities, without the consent of either the Trustee or the Holder of any other Securities, on its own behalf and for its own benefit, may enforce, and may institute and maintain any proceeding suitable to enforce, its rights of conversion as provided herein.

Section 6.07.     Rights of Securityholders to Receive Payment . Notwithstanding any other provision of this Indenture, the right of any Securityholder to receive payment of the principal of (including the Fundamental Change Repurchase Price) and accrued interest on the Securities held by such Securityholder, or delivery of the cash and, if applicable, shares of Common Stock issuable upon conversion of the Securities, on or after the respective due dates expressed in the Securities, or to bring suit for the enforcement of any such payment or delivery on or after such respective dates, shall not be impaired or affected without the consent of such Securityholder.

 

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Section 6.08.     Collection Suit by Trustee . If an Event of Default specified in Section 6.01(a) or 6.01(b) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount then due and owing (together with interest on any unpaid interest to the extent lawful) and the amounts provided for in Section 7.07.

Section 6.09.     Trustee May  File Proofs of Claim . The Trustee may 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 and the Securityholders allowed in any judicial proceedings relative to the Company, their creditors or their property and, unless prohibited by law or applicable regulations, may vote on behalf of the Securityholders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Securityholder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Securityholders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 7.07.

Section 6.10.     Priorities . If the Trustee collects any money or property pursuant to this Article 6, it shall pay out the money or property in the following order:

FIRST: to the Trustee for amounts due under Section 7.07;

SECOND: to Securityholders for amounts due and unpaid on the Securities for principal and interest, ratably without preference or priority of any kind, according to the amounts due and payable on the Securities for principal and interest, respectively; and

THIRD: to the Company.

The Trustee may fix a record date and payment date for any payment to Securityholders pursuant to this Section. At least 15 days before such record date, the Trustee shall mail to each Securityholder and the Company a notice that states the record date, the payment date and amount to be paid.

Section 6.11.     Undertaking for Costs . In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and

 

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the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by the Trustee, a suit by a Securityholder pursuant to Section 6.07 or a suit by Securityholders of more than 10% in principal amount of the Securities or to any suit instituted by any Holder of Securities for the enforcement of the payment of the principal of or interest on any Securities on or after the due date expressed in such Securities or to any suit for the enforcement of the right to convert any Securities in accordance with the provisions of Article 10.

Section 6.12.     Waiver of Stay, Extension or Usury Laws . The Company (to the extent it may lawfully do so) shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.

Section 6.13.     Alternative Remedy for Failure to Comply with Reporting Obligations in the Indenture and TIA . Notwithstanding any other provision of this Article 6, if the Company so elects, the sole remedy for an Event of Default relating to the failure to comply with Section 4.03 of this Indenture will consist exclusively of the right to receive additional interest (the “ Default Additional Interest ”) on the Securities at a rate equal to (x) 0.25% per annum of the principal amount of the Securities outstanding for each day during the 90-day period on which such Event of Default is continuing beginning on, and including, the date on which such Event of Default first occurs and (y) 0.50% per annum of the principal amount of the Securities outstanding for each day during the 275-day period beginning on, and including, the 91st day on which such Event of Default is continuing (in addition to any Additional Interest that may accrue pursuant to Section 4.03(d) or Section 4.03(e)). In the event the Company does not elect to pay the Default Additional Interest upon an Event of Default in accordance with this Section 6.13 or does not pay such additional interest when due, the Securities will be subject to acceleration as provided above. The Default Additional Interest will accrue on all outstanding Securities from and including the date on which an Event of Default relating to a failure to comply with Section 4.03 of this Indenture first occurs to, but not including, the 365th day thereafter (or such earlier date on which the Event of Default relating to such failure shall have been cured or waived prior to such 365th day) and will be payable in the same manner as interest on the Securities. On such 365th day (or earlier, if the Event of Default

 

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relating to such failure is cured or waived prior to such 365th day) such Default Additional Interest will cease to accrue and the Securities will be subject to acceleration as provided above if the Event of Default is continuing. In no event will Default Additional Interest accrue at a rate in excess of 0.50% per annum pursuant to this Indenture, regardless of the number of events or circumstances giving rise to the requirement to pay the Default Additional Interest. This provision will not affect the rights of holders of Securities in the event of the occurrence of any other Event of Default.

ARTICLE 7

TRUSTEE

Section 7.01.     Duties of Trustee . (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.

(b)    Except during the continuance of an Event of Default:

(i)    the Trustee need only perform such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

(ii)    in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.

(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:

(i)    this paragraph does not limit the effect of paragraph (b) of this Section;

(ii)    the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and

(iii)    the Trustee shall 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 Section 6.05.

 

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(d)    Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.

(e)    The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.

(f)    Money or property held in trust by the Trustee need not be segregated from other funds or property except to the extent required by law.

(g)    No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

(h)    Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section and to the provisions of the TIA.

Section 7.02.     Rights of Trustee . (a) The Trustee may conclusively rely on any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.

(b)    Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on the Officers’ Certificate or Opinion of Counsel.

(c)    The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.

(d)    The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers.

(e)    The Trustee may consult with counsel, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Securities shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.

 

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(f)    The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, note, debenture, other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit.

(g)    The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities which may be incurred therein or thereby.

(h)    The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Trust Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default is received by a Trust Officer of the Trustee at the Corporate Trust Office of the Trustee from the Company or the Holders of at least 25% in aggregate principal amount of the outstanding Notes, and such notice references the specific Default or Event of Default, the Securities and this Indenture.

(i)    In no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

(j)    The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder by or on behalf of the Trustee.

Section 7.03.     Individual Rights of Trustee . The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee. Any Conversion Agent, Paying Agent, Registrar or co-paying agent may do the same with like rights. However, the Trustee must comply with Sections 7.10 and 7.11.

Section 7.04.     Trustee s Disclaimer . The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s use of the

 

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proceeds from the Securities, and it shall not be responsible for any statement of the Company in this Indenture or in any document issued in connection with the sale of the Securities or in the Securities other than the Trustee’s certificate of authentication.

Section 7.05.     Notice of Defaults . (a) The Trustee shall not be deemed to have notice of any Default, other than a payment default, unless a Trust Officer shall have been advised in writing that a Default has occurred. No duty imposed upon the Trustee in this Indenture shall be applicable with respect to any Default of which the Trustee is not deemed to have such notice.

(b)    If a default occurs and is continuing and if it is known to the Trustee, the Trustee shall mail to each Securityholder notice of the default within the earlier of 90 days after it occurs or 30 days after it is known to a Trust Officer or written notice of it is received by the Trustee. Except in the case of a default in payment of principal or interest on any Security (including payments pursuant to the repurchase provisions of such Security), the Trustee may withhold notice if and so long as a committee of its Trust Officers in good faith determines that withholding notice is in the interests of the Securityholders.

Section 7.06.     Reports by Trustee to Securityholders . As promptly as practicable, beginning with the May 15 following the first anniversary of the date of this Indenture, and in any event prior to May 15 in each subsequent year, the Trustee shall, to the extent that any of the events described in TIA § 313(a) occurred within the previous twelve months, but not otherwise, mail to each Securityholder a brief report dated as of May 15 that complies with Section 313(a) of the TIA. The Trustee shall also comply with Section 313(b) of the TIA.

A copy of each report at the time of its mailing to Securityholders shall be filed with the SEC and each stock exchange (if any) on which the Securities are listed. The Company agrees to promptly notify the Trustee whenever the Securities become listed on any stock exchange and of any delisting thereof.

Section 7.07.     Compensation and Indemnity . The Company shall pay to the Trustee from time to time such compensation as the Company and the Trustee shall from time to time agree in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall

 

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include the reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts. The Company shall indemnify the Trustee, and hold it harmless, against any and all loss, liability or expense (including reasonable attorneys’ fees) incurred by or in connection with the offer and sale of the Securities or the administration of this trust and the performance of its duties hereunder. The Trustee shall notify the Company of any claim for which it may seek indemnity promptly upon obtaining actual knowledge thereof; provided that any failure so to notify the Company shall not relieve the Company of its indemnity obligations hereunder. The Company shall defend the claim and the indemnified party shall provide reasonable cooperation at the Company’s expense in the defense. Such indemnified parties may have separate counsel and the Company shall pay the fees and expenses of such counsel; provided that the Company shall not be required to pay such fees and expenses if it assumes such indemnified parties’ defense and, in such indemnified parties’ reasonable judgment, there is no conflict of interest between the Company and such parties in connection with such defense. The Company need not reimburse any expense or indemnify against any loss, liability or expense incurred by an indemnified party through such party’s own willful misconduct and gross negligence, as determined by a final non-appealable order of a court of competent jurisdiction not subject to appeals.

To secure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest and any liquidated damages on particular Securities.

The Company’s payment obligations pursuant to this Section shall survive the satisfaction or discharge of this Indenture, any rejection or termination of this Indenture under any bankruptcy law or the resignation or removal of the Trustee. When the Trustee incurs expenses after the occurrence of an Event of Default specified in Section 6.01(h) or 6.01(i) with respect to the Company, the expenses are intended to constitute expenses of administration under the Bankruptcy Law.

Section 7.08.     Replacement of Trustee . The Trustee may resign at any time by so notifying the Company. The Holders of a majority in principal amount of the Securities may remove the Trustee by so notifying the Trustee and may appoint a successor Trustee. The Company shall remove the Trustee if:

(a)    the Trustee fails to comply with Section 7.10;

(b)    the Trustee is adjudged bankrupt or insolvent;

(c)    a receiver or other public officer takes charge of the Trustee or its property; or

 

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(d)    the Trustee otherwise becomes incapable of acting.

If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal amount of the Securities and such Securityholders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee.

A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Securityholders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07.

If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 10% in principal amount of the Securities may petition any court of competent jurisdiction for the appointment of a successor Trustee.

If the Trustee fails to comply with Section 7.10, any Securityholder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

Notwithstanding the replacement of the Trustee pursuant to this Section, the Company’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.

Section 7.09.     Successor Trustee by Merger . If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee.

In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture any of the Securities shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have.

 

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Section 7.10.     Eligibility; Disqualification . The Trustee shall at all times satisfy the requirements of TIA § 310(a). The Trustee shall have a combined capital and surplus of at least $100,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA § 310(b); provided that there shall be excluded from the operation of TIA § 310(b)(1) any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Company are outstanding if the requirements for such exclusion set forth in TIA § 310(b)(1) are met.

Section 7.11.     Preferential Collection of Claims Against Company . The Trustee shall comply with TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.

ARTICLE 8

DISCHARGE OF INDENTURE

Section 8.01.     Discharge of Liability on Securities . (a) At any time after all outstanding Securities have become due and payable, whether at Maturity Date or upon a repurchase pursuant to Article 3 hereof, and any pending conversions have been completed (including delivery of all cash and shares of Common Stock, if any, deliverable pursuant to such conversions in accordance with Section 10.13) then this Indenture shall, subject to Section 8.01(b), cease to be of further effect when (i) the Company delivers to the Trustee all outstanding Securities (other than Securities replaced pursuant to Section 2.12) for cancellation or (ii) the Company irrevocably deposits with the Trustee money sufficient to pay at maturity or upon repurchase all outstanding Securities, including interest thereon to but excluding, maturity or such repurchase date (other than Securities replaced pursuant to Section 2.12), and if in each such case the Company pays all other sums payable hereunder by the Company. The Trustee shall acknowledge satisfaction and discharge of this Indenture on demand of the Company accompanied by an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Company.

(b)    Notwithstanding clause (a) above, the Company’s obligations in Sections 2.05, 2.06, 2.07, 2.08, 2.09, 2.10, 2.12, 2.13, 7.07, 7.08 and in this Article 8 shall survive until the Securities have been paid in full. Thereafter, the Company’s obligations in Sections 7.07, 8.03 and 8.04 shall survive.

 

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Section 8.02.     Application of Trust Money . The Trustee shall hold in trust money deposited with it pursuant to this Article 8. It shall apply the deposited money through the Paying Agent and in accordance with this Indenture to the payment of principal of and interest on the Securities in accordance with this Indenture.

Section 8.03.     Repayment to Company . The Trustee and the Paying Agent shall promptly turn over to the Company upon request any excess money or securities held by them at any time.

Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company upon written request any money held by them for the payment of principal or interest that remains unclaimed for two years, and, thereafter, Securityholders entitled to the money and/or securities must look to the Company for payment as general creditors.

Section 8.04.     Reinstatement . If the Trustee or Paying Agent is unable to apply any money in accordance with this Article 8 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to this Article 8 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with this Article 8; provided that, if the Company has made any payment of interest on or principal of any Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Securityholders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.

ARTICLE 9

AMENDMENTS

Section 9.01.     Without Consent of Securityholders . The Company and the Trustee may amend this Indenture or the Securities without notice to or consent of any Securityholder:

(a)    to provide for conversion rights of Holders of the Securities and the Company’s repurchase obligations in connection with a Fundamental Change in the event of any reclassification of Common Stock, merger or consolidation, or sale, conveyance, transfer or lease of the Company’s property and assets substantially as an entirety;

 

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(b)    to secure the Securities including provisions regarding the circumstances under which collateral may be released or substituted;

(c)    evidence the succession of another Person to the Company under the terms of this Indenture or successive successions, and provide for the assumption of the Company’s obligations to the Holders in the event of a merger or consolidation, or sale, conveyance, transfer or lease of the Company’s property and assets substantially as an entirety;

(d)    to surrender any right or power conferred upon the Company;

(e)    to add to the covenants of the Company for the benefit of the Securityholders;

(f)    to cure any ambiguity or correct or supplement any inconsistency or defective provision contained in this Indenture; provided that such modification or amendment does not adversely affect the interests of the Holders of the Securities in any material respect; provided , further , that any amendment made solely to conform the provisions of this Indenture to the description of the Securities contained in the Offering Memorandum prepared by the Company dated as of March 13, 2017 will not be deemed to adversely affect the interests of the Holders of the Securities;

(g)    to make any provision with respect to matters or questions arising under this Indenture that the Company may deem necessary or desirable and that shall not be inconsistent with provisions of this Indenture; provided that such change or modification does not, in the good faith opinion of the Board of Directors, adversely affect the interests of the Holders of the Securities in any material respect;

(h)    to increase the Conversion Rate in accordance with this Indenture;

(i)    to comply with any requirements of the SEC in connection with qualifying, or maintaining the qualification of, this Indenture under the TIA;

(j)    to add or provide for the guarantee of obligations under the Securities or additional obligors on the Securities; or

(k)    to provide for a successor Trustee.

After an amendment under this Section becomes effective, the Company shall mail to Securityholders a notice briefly describing such amendment. The failure to give such notice to all Securityholders, or any defect therein, shall not impair or affect the validity of an amendment under this Section.

 

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Section 9.02.     With Consent of Securityholders . The Company and the Trustee may amend this Indenture or the Securities with the written consent or affirmative vote of the Holders of at least a majority in principal amount of the Securities then outstanding (including consents obtained in connection with a tender offer or exchange offer for the Securities), without notice to any other Securityholder. However, without the consent of each Holder of an outstanding Security affected, an amendment may not:

(a)    extend the Maturity Date;

(b)    reduce the rate of or extend the time for payment of interest on any Security;

(c)    reduce the principal amount of any Security;

(d)    reduce any amount payable upon repurchase of any Security;

(e)    impair the right of a Holder to institute suit for payment of any Securities;

(f)    make any Security payable in a currency other than that stated in the Security;

(g)    change the obligation of the Company to repurchase any Security upon a Fundamental Change in a manner adverse to the Holders;

(h)    except as required by this Indenture, adversely affect the right of a Holder to convert any Securities into cash and, if applicable, shares of Common Stock (or to the extent otherwise applicable, other property, including cash, receivable upon conversion pursuant to the terms of this Indenture) or reduce the Conversion Rate, except as otherwise permitted pursuant to this Indenture; or

(i)    make any changes in Section 6.04 or 6.07, the first sentence of this Section 9.02 regarding the percentage of the Securities required for consent or any modification of this Indenture that does not require the consent of each affected Holder or the second sentence of this Section 9.02.

It shall not be necessary for the consent of the Securityholders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent approves the substance thereof.

After an amendment under this Section becomes effective, the Company shall mail to Securityholders a notice briefly describing such amendment. The failure to give such notice to all Securityholders, or any defect therein, shall not impair or affect the validity of an amendment under this Section.

 

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Section 9.03.     Compliance with Trust Indenture Act . Every amendment to this Indenture or the Securities shall comply with the TIA as then in effect if required to so comply.

Section 9.04.     Revocation and Effect of Consents and Waivers . A consent to an amendment or a waiver by a Securityholder of a Security shall bind the Securityholder and every subsequent Securityholder of that Security or portion of the Security that evidences the same debt as the consenting Securityholder’s Security, even if notation of the consent or waiver is not made on the Security. However, any such Securityholder or subsequent Securityholder may revoke the consent or waiver as to such Securityholder’s Security or portion of the Security if the Trustee receives the notice of revocation before the date the amendment or waiver becomes effective. After an amendment or waiver becomes effective, it shall bind every Securityholder. An amendment or waiver becomes effective once (i) the requisite number of consents have been received by the Company or the Trustee and (ii) in the case of an amendment, such amendment has been executed by the Company and the Trustee.

The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Securityholders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Securityholders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Securityholders after such record date. No consent shall be valid or effective for more than 120 days after such record date unless consents from holders of the principal amount of Securities required hereunder to give such consent or take such action shall have also been given and not revoked within such 120-day period.

Section 9.05.     Notation on or Exchange of Securities . If an amendment changes the terms of a Security, the Trustee may require the Securityholder of the Security to deliver it to the Trustee. The Trustee may place an appropriate notation on the Security regarding the changed terms and return it to the Securityholder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security that reflects the changed terms. Failure to make the appropriate notation or to issue a new Security shall not affect the validity of such amendment.

 

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Section 9.06.     Trustee to Sign Amendments . The Trustee shall sign any amendment authorized pursuant to this Article 9 if the amendment does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign it. In signing such amendment the Trustee shall be entitled to receive indemnity reasonably satisfactory to it and to receive, and (subject to Section 7.01) shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that such amendment is authorized or permitted by this Indenture and that such amendment is the legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to customary exceptions, and complies with the provisions hereof (including Section 9.03).

ARTICLE 10

CONVERSION OF SECURITIES

Section 10.01.     Right to Convert . (a) Subject to and upon compliance with the provisions of this Indenture, on or prior to the close of business on the Business Day immediately preceding Maturity Date, the Holder of any Securities not previously repurchased shall have the right, at such Holder’s option, to convert the principal amount of the Securities held by such Holder, or any portion of such principal amount which is an integral multiple of $1,000, into cash and, if applicable, fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) as described in Section 10.13, at the Conversion Rate in effect at such time, by surrender of the Securities so to be converted in whole or in part, together with any required funds, under the circumstances described in this Section 10.01 and in the manner provided in Section 10.02. The Securities shall be convertible only upon the occurrence of one of the following events:

(i)    prior to October 1, 2024, on any date during any Fiscal Quarter beginning after June 30, 2017 (and only during such Fiscal Quarter), if the Closing Sale Price of a share of Common Stock was more than 130% of the then current Conversion Price for at least 20 Trading Days in the period of 30 consecutive Trading Days ending on the last Trading Day of the previous Fiscal Quarter;

(ii)    at any time on or after October 1, 2024;

(iii)    [Reserved];

 

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(iv)    if the Company distributes to all or substantially all holders of Common Stock, rights or warrants entitling them to purchase, for a period of 45 calendar days or less, Common Stock at a price less than the average Closing Sale Price per share of the Common Stock for the ten Trading Days preceding the declaration date for such distribution;

(v)    if the Company distributes to all or substantially all holders of Common Stock, cash or other assets, debt securities or rights to purchase the Company’s securities, which distribution has a per share value exceeding 10% of the Closing Sale Price per share of the Common Stock on the Trading Day preceding the declaration date for such distribution;

(vi)    if the Company reclassifies or changes the Common Stock (other than changes resulting from a subdivision or combination) or consolidates with or merges with or into another Person or is a party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets in each case in a transaction not constituting a Fundamental Change or a Non-Stock Change of Control, pursuant to which the Common Stock would be converted into cash, securities and/or other property, at any time beginning 15 calendar days prior to the date announced by the Company as the anticipated effective date of the transaction and until and including the date which is 15 calendar days after the date that is the actual effective date of such transaction;

(vii)    if a Fundamental Change or a Non-Stock Change of Control occurs, at any time beginning on the 25th Scheduled VWAP Trading Day prior to the anticipated effective date of the Fundamental Change or Non-Stock Change of Control until 5:00 p.m., New York City time, on the Business Day preceding the Fundamental Change Repurchase Date relating to such Fundamental Change or, in the case of a Non-Stock Change of Control, until 5:00 p.m., New York City time, on the last day of the Non-Stock Change of Control Period; or

(viii)    during the five consecutive Business Day period immediately following any five consecutive Trading Day period in which the Trading Price for $1,000 principal amount of the Securities for each day during such five Trading Day period was less than 98% of the Closing Sale Price of a share of Common Stock and multiplied by the then applicable Conversion Rate on each such day.

(b)    (i) The Company shall notify the Trustee in writing on or prior to the fifth Business Day following the first day of each Fiscal Quarter (commencing prior to October 1, 2024, beginning with the Fiscal Quarter ending June 30, 2017) if the condition to conversion set forth in Section 10.01(a) above shall have been satisfied with respect to such Fiscal Quarter.

(ii)    The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price of the Securities and whether the Securities are convertible

 

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pursuant to clause (viii) of Section 10.01(a) unless the Company has requested in writing such determination; and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, it shall have no obligation to determine the Trading Price) unless a Holder of the Securities provides the Company with reasonable written evidence that the Trading Price of $1,000 principal amount of the Securities would be less than 98% of the product of the Closing Sale Price of the Common Stock and the then current Conversion Rate and requests such determination. At such time, the Company shall instruct the Bid Solicitation Agent (if other than the Company) to, and the Bid Solicitation Agent shall, determine, or if the Company is acting as the Bid Solicitation Agent, it shall determine, the Trading Price of the Securities beginning on the next Trading Day and for each following Trading Day until the minimum Trading Price threshold is exceeded. If (A) the Company is not acting as the Bid Solicitation Agent and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price of the Securities when required or (B) the Company is acting as the Bid Solicitation Agent and it fails to make such determination, then, in either case, the Trading Price for each day the Company fails to do so will be deemed to be less than 98% of the product of the Closing Sale Price of the Company’s Common Stock and the then current Conversion Rate.

The Bid Solicitation Agent shall be entitled at its sole discretion to consult with the Company and to request the assistance of the Company in connection with the Bid Solicitation Agent’s duties and obligations pursuant to this Section 10.01(b)(ii) (including without limitation the calculation or determination of the Closing Sale Price and the Trading Price), and the Company shall, if requested by the Bid Solicitation Agent other than the Company, cooperate with, and provide assistance to, the Bid Solicitation Agent in carrying out its duties under this Section 10.01(b)(ii). Upon determination of the Closing Sale Price and the Trading Price, the Bid Solicitation Agent shall notify the Company in writing of such determination.

(c)    In the case of a distribution contemplated by clauses (iv) or (v) of Section 10.01(a), the Company shall notify Holders of Securities at least 25 Scheduled VWAP Trading Days prior to the Ex-Date for such distribution (the “ Distribution Notice ”). Once the Company has given the Distribution Notice, Holders may surrender their Securities for conversion at any time until the earlier of (i) 5:00 p.m., New York City time, on the Business Day immediately preceding the Ex-Date or (ii) the Company’s announcement that such distribution will not take place. In the event of a distribution contemplated by clauses (iv) or (v) of Section 10.01(a), Holders may not convert the Securities if the Holders may otherwise participate in such distribution without converting their Securities at the same time that holders of Common Stock participate as if the Holder had held a number of shares of Common Stock equal to the Conversion Rate multiplied by the principal amount (expressed in thousands) of the Securities held by the Holder.

 

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(d)    Whenever the Securities shall become convertible pursuant to this Section 10.01, the Company or, at the Company’s request, the Trustee in the name and at the expense of the Company, shall notify the Holders of the event triggering such convertibility in the manner provided in Section 11.02, and the Company shall also publicly announce such information and publish it on the Company’s website or through another public medium that the Company may use. Any notice so given shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. The Company shall notify Holders as promptly as practicable after the Company publicly announces such transaction, which shall be at least 25 Scheduled VWAP Trading Days prior to the anticipated effective date of any Fundamental Change or Non-Stock Change of Control in the case of a transaction to which the Company is a party.

(e)    Securities in respect of which a Holder has delivered a Fundamental Change Repurchase Notice exercising such Holder’s right to require the Company to repurchase such Securities pursuant to Section 3.04, may be converted only if such Fundamental Change Repurchase Notice is withdrawn in accordance with Section 3.07 prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date.

(f)    A Holder of Securities is not entitled to any rights of a Holder of Common Stock until such holder has converted his Securities to Common Stock, and only to the extent such Securities are deemed to have been converted to Common Stock under this Article 10.

Section 10.02.     Exercise of Conversion Right; Issuance of Common Stock on Conversion; No Adjustment for Interest or Dividends . In order to exercise the conversion right with respect to any Securities in certificated form, the Company must receive at the office or agency of the Company, which will initially be the office or agency of the Trustee maintained for that purpose in The City of New York, such Securities with the original or facsimile of the form entitled “ Conversion Notice ” on the reverse thereof, duly completed and manually signed, together with such Securities duly endorsed for transfer, together with any other required transfer documents, accompanied by the funds, if any, required by this Section 10.02. Such notice shall also state the name or names (with address or addresses) in which the certificate or certificates for shares of Common Stock which shall be issuable on such conversion shall be issued, and shall be accompanied by transfer or similar taxes, if required pursuant to Section 10.08.

In order to exercise the conversion right with respect to any interest in a Global Security, the Holder must complete, or cause to be completed, the appropriate instruction form for conversion pursuant to the Depositary’s book-entry conversion program; deliver, or cause to be delivered, by book-entry delivery an interest in such Global Security; furnish appropriate endorsements and transfer documents if required by the Company or the Trustee or Conversion Agent; and pay the funds, if any, required by this Section 10.02 and any transfer or similar taxes if required pursuant to Section 10.08.

 

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After satisfaction of the requirements for conversion set forth above, the Company will deliver cash and Common Stock, if any, in accordance with Section 10.13. In case any Securities of a denomination greater than $1,000 shall be surrendered for partial conversion, and subject to Section 2.03, the Company shall execute and the Trustee shall authenticate and deliver to the Holder of the Securities so surrendered, without charge to the Holder, a new Security or Securities in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Securities.

Each conversion shall be deemed to have been effected as to any such Securities (or portion thereof) on the date on which the requirements set forth above in this Section 10.02 have been satisfied as to such Securities (or portion thereof) (the “ Conversion Date ”) and such Securities will be deemed to have been converted immediately prior to 5:00 p.m., New York City time, on the Conversion Date. The Person in whose name the certificate or certificates for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the last VWAP Trading Day of the related Conversion Observation Period.

Upon the conversion of an interest in a Global Security, the Trustee (or other Conversion Agent appointed by the Company), or the custodian for the Global Security at the direction of the Trustee (or other Conversion Agent appointed by the Company), shall make a notation on such Global Security as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversions of Securities effected through any Conversion Agent other than the Trustee.

Section 10.03.     Cash Payments in Lieu of Fractional Shares . No fractional shares of Common Stock or scrip certificates representing fractional shares shall be issued upon conversion of Securities. If more than one Security shall be surrendered for conversion at one time by the same Holder, the number of full shares that shall be issuable upon conversion shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to the extent permitted hereby) so surrendered. If any fractional share of stock would be issuable upon the conversion of any Security or Securities, the Company shall make an adjustment and payment therefor in cash to the Holder of Securities at a price equal to the Closing Sale Price on the last VWAP Trading Day of the Conversion Observation Period.

 

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Section 10.04.     Conversion Rate . Each $1,000 principal amount of the Securities shall be convertible into cash and/or the number of shares of Common Stock, if any, based upon the Conversion Rate, subject to adjustment as provided in Section 10.05 and Section 10.06. The Company shall settle its obligation to convert the Securities as provided in Section 10.13.

Section 10.05.     Adjustment to Conversion Rate upon a Non-Stock Change of Control . (a) If and only to the extent a Holder elects to convert Securities at any time following the date on which a Non-Stock Change of Control becomes effective (the “ Non-Stock Change of Control Effective Date ”) but before 5:00 p.m., New York City time, on the Business Day immediately preceding the related Fundamental Change Repurchase Date or if such Non-Stock Change of Control is not also a Fundamental Change, on the 35 th Business Day following the Non-Stock Change of Control Effective Date (such period, the “ Non-Stock Change of Control Period ”), the Company shall increase the Conversion Rate applicable to such converted Securities by a number of additional shares of Common Stock (the “ Additional Shares ”) as set forth below. The number of Additional Shares of Common Stock shall be determined by reference to the table below, based on the Non-Stock Change of Control Effective Date and the price (the “ Stock Price ”) paid per share for the Common Stock in the Non-Stock Change of Control. If holders of Common Stock receive only cash in the Non-Stock Change of Control, the Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock on the five Trading Days prior to but not including the Non-Stock Change of Control Effective Date.

The following table sets forth the number of Additional Shares per $1,000 principal amount of Securities by which the Conversion Rate shall be increased for conversions of Securities in connection with a Non-Stock Change of Control pursuant to Section 10.01(a)(vii) based on the Non-Stock Change of Control Effective Date and Stock Price for the Non-Stock Change of Control:

 

     Stock Price  

Effective Date

   $17.09      $20.00      $22.22      $25.00      $30.00      $40.00      $55.00      $75.00      $100.00      $125.00      $160.00  

March 17, 2017

     13.5032        10.1055        8.2673        6.5616        4.5323        2.4503        1.1735        0.5167        0.1936        0.0612        0.0000  

April 1, 2018

     13.5032        9.8265        7.9455        6.2196        4.2023        2.1953        1.0165        0.4343        0.1561        0.0459        0.0000  

April 1, 2019

     13.5032        9.5875        7.6427        5.8824        3.8677        1.9375        0.8638        0.3581        0.1232        0.0326        0.0000  

April 1, 2020

     13.5032        9.3500        7.3200        5.5128        3.4983        1.6625        0.7105        0.2869        0.0950        0.0221        0.0000  

April 1, 2021

     13.5032        9.0485        6.9131        5.0528        3.0543        1.3543        0.5531        0.2193        0.0701        0.0144        0.0000  

April 1, 2022

     13.5032        8.6340        6.3690        4.4560        2.5070        1.0100        0.3951        0.1563        0.0476        0.0064        0.0000  

April 1, 2023

     13.5032        8.0010        5.5666        3.6132        1.8010        0.6340        0.2447        0.1000        0.0290        0.0010        0.0000  

April 1, 2024

     13.5032        6.9230        4.2160        2.2952        0.8873        0.2675        0.1135        0.0497        0.0138        0.0000        0.0000  

April 1, 2025

     13.5032        4.9895        0.0000        0.0000        0.0000        0.0000        0.0000        0.0000        0.0000        0.0000        0.0000  

 

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(b)    If the Stock Price for a Non-Stock Change of Control or Non-Stock Change of Control Effective Date are not set forth in the table above, then:

(1)    if the Stock Price is between two Stock Price amounts on the table or the Non-Stock Change of Control Effective Date is between two Non-Stock Change of Control Effective Dates on the table, the number of Additional Shares of Common Stock will be determined by straight-line interpolation between the number of Additional Shares of Common Stock set forth for the higher and lower Stock Price amounts and the two dates, as applicable, based on a 365-day year;

(2)    if the Stock Price is in excess of $160.00 per share (subject to adjustment), no Additional Shares of Common Stock shall be issued upon conversion as set forth in Section 10.05(c); or

(3)    if the Stock Price is less than $17.09 per share (subject to adjustment), no Additional Shares of Common Stock shall be issued upon conversion as set forth in Section 10.05(c).

Notwithstanding the foregoing, in no event will the Conversion Rate as adjusted pursuant to this Section 10.05 exceed 58.5137 per $1,000 principal amount of the Securities.

(c)    The numbers of Additional Shares of Common Stock set forth in the table in Section 10.05(a) shall be adjusted as of any date on which the Conversion Rate is adjusted in the same manner in which the Conversion Rate is adjusted. The Stock Prices set forth in the table in Section 10.05(a) shall be adjusted, as of any date on which the Conversion Rate is adjusted, to equal the Stock Price applicable immediately prior to such adjustment multiplied by a fraction, of which:

(1)    the numerator shall be the Conversion Rate immediately prior to the adjustment; and

(2)    the denominator shall be the Conversion Rate as so adjusted.

(d)    The Company shall provide written notice to all Holders and to the Trustee as promptly as practicable after the Company publicly announces such Non-Stock Change of Control, which shall be at least 20 calendar days prior to the anticipated Non-Stock Change of Control Effective Date.

Section 10.06.     Adjustment of Conversion Rate . The Conversion Rate shall be adjusted from time to time by the Company, without duplication, as follows, except that the Company will not make any adjustments to the Conversion Rate if Holders participate (other than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of Common Stock

 

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and solely as a result of holding the Securities, in any of the transactions described below without having to convert such Holder’s Securities as if they held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder:

(a)    If the Company exclusively issues shares of Common Stock as a dividend or distribution on shares of Common Stock, or if the Company effects a share split or share combination, the Conversion Rate will be adjusted based on the following formula:

 

CR 1

  =   CR 0   ×     OS 1  
        OS 0  

where,

 

CR 0    =    the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable;
CR 1    =    the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or Effective Date;
OS 0    =    the number of shares of the Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date; and
OS 1    =    the number of shares of the Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination.

Any adjustment made under this Section 10.06(a) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open of business on the Effective Date for such share split or share combination, as applicable. If any dividend or distribution of the type described in this Section 10.06(a) is declared but not so paid or made, or any share split or combination of the type described in this Section 10.06(a) is announced but the outstanding shares of Common Stock are not split or combined, as the case may be, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, or not to split or combine the outstanding shares of Common Stock, as the case may be, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared or such share split or combination had not been announced.

(b)    If the Company issues to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance,

 

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to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, the Conversion Rate will be increased based on the following formula:

 

CR 1

 

=

  CR 0   ×     OS 0  + X  
        OS 0  + Y  

where,

 

CR 0   =    the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance;
CR 1   =    the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
OS 0   =    the number of shares of the Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date;
X   =    the total number of shares of the Common Stock issuable pursuant to such rights, options or warrants; and
Y   =    the number of shares of the Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants.

Any increase made under this Section 10.06(b) will be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred.

For the purpose of this Section 10.06(b) and Section 10.01(a)(iv), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of the Common Stock at less than such average of the Last Reported Sale Prices for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.

 

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(c)    If the Company distributes shares of its capital stock, evidences of its indebtedness, other assets or property of the Company or rights, options or warrants to acquire the Company’s capital stock or other securities, to all or substantially all holders of the Common Stock, excluding (i) dividends, distributions or issuances as to which an adjustment was effected pursuant to Section 10.06(a) or Section 10.06(b); (ii) except as otherwise described below, rights issued pursuant to a stockholder rights plan of the Company; (iii) dividends or distributions paid exclusively in cash as to which the provisions set forth in Section 10.06(d) shall apply; and (iv) Spin-Offs as to which the provisions set forth in this Section 10.06(c) shall apply; then the Conversion Rate will be increased based on the following formula:

 

CR 1  = CR 0  ×    SP 0  
  SP 0 – FMV  

where,

 

CR 0    =    the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;
CR 1    =    the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
SP 0    =    the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and
FMV    =    the fair market value (as determined by the Board of Directors) of the shares of capital stock, evidences of indebtedness, assets, property, rights, options or warrants distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution.

Any increase made under the portion of this Section 10.06(c) will become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP 0 ” (as defined above), in lieu of the foregoing increase, each Holder of the Securities shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Stock, the amount and kind of the Company’s capital stock, evidences of indebtedness, other assets or property of the Company’s or rights, options or warrants to acquire the Company’s capital stock or other securities that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the Ex-Dividend Date for the distribution.

 

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With respect to an adjustment pursuant to this Section 10.06(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (the “ Spin-Off ”), the Conversion Rate will be increased based on the following formula:

 

CR 1  = CR 0  ×    FMV 0  + MP 0  
  MP 0  

where,

 

CR 0    =    the Conversion Rate in effect immediately prior to the end of the Valuation Period;
CR1    =    the Conversion Rate in effect immediately after the end of the Valuation Period;
FMV 0    =    the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of the Common Stock (determined by reference to the definition of Last Reported Sale Price as set forth in Section 1.01 as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “ Valuation Period ”); provided that if there is no Last Reported Sale Price of the Capital Stock or similar equity interest distributed to holders of the Common Stock on such Ex-Dividend Date, the Valuation Period shall be the first ten consecutive Trading Day period after, and including, the first date such Last Reported Sale Price is available; and
MP 0    =    the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.

The increase to the Conversion Rate under the preceding paragraph will occur on the last Trading Day of the Valuation Period; provided that in respect of any conversion of the Securities, for any Trading Day that falls within the relevant Conversion Observation Period for such conversion and within the Valuation Period, the reference to “10” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date for such Spin-Off and such Trading Day in determining the Conversion Rate as of such Trading Day. In addition, if the Ex-Dividend Date for such Spin-Off is after the 10th VWAP Trading Day immediately preceding, and including, the end of any Conversion Observation Period in respect of a conversion of the Securities, references to “10” or “10th” in the preceding paragraph and this paragraph shall be deemed to be replaced, solely in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, the last VWAP Trading Day of such Observation Period. If the distribution constituting the Spin-Off is not so paid or made, the Conversion Rate shall be decreased to the Conversation Rate that would be in effect if such distribution had not been declared.

 

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(d)    If any cash dividend or distribution is made to all or substantially all holders of Common Stock, the Conversion Rate will be increased based on the following formula:

 

CR 1

  =   CR 0   ×    SP 0      
        SP 0  – C      

where,

 

CR 0

   =    the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution;

CR 1

   =    the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution;

SP 0

   =    the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and

C

   =    the amount in cash per share the Company distributes to all or substantially all holders of the Common Stock.

Any increase made under this Section 10.06(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP 0 ” (as defined above), in lieu of the foregoing increase, each Holder of the Securities shall receive, for each $1,000 principal amount of the Securities, at the same time and upon the same terms as Holders of shares of the Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of the Common Stock equal to the Conversion Rate on the Ex-Dividend date for such cash dividend or distribution.

(e)    If the Company or any of its subsidiaries make a payment in respect of a tender or exchange offer for the Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or

 

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exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate will be increased based on the following formula:

 

CR 1

  =   CR 0   ×    AC + (SP 1  × OS 1 )   
        OS 0  × SP 1   

 

CR 0

   =    the Conversion Rate in effect immediately prior to the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires;

CR 1

   =    the Conversion Rate in effect immediately after the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires;

AC

   =    the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares purchased in such tender or exchange offer;

OS 0

   =    the number of shares of the Common Stock outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer);

OS 1

   =    the number of shares of the Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); and

SP 1

   =    the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the date such tender or exchange offer expires.

The increase to the Conversion Rate under the preceding paragraph will occur at the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that in respect of any conversion of the Securities, for any Trading Day that falls within the relevant Conversion Observation Period for such conversion and within the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references to “10” or “10th” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed between the expiration date of such tender or exchange offer and such Trading Day in determining the Conversion Rate as of such Trading Day. In addition, if the Trading Day next succeeding the date such tender or exchange offer expires is after the 10th VWAP Trading Day immediately preceding, and including, the end of any Conversion Observation Period in respect of a conversion of the Securities, references to “10” or “10th” in the preceding paragraph and this paragraph shall be deemed to be replaced, solely in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the date such tender or exchange offer expires to, and including, the last VWAP Trading Day of such Conversion Observation Period.

 

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(f)    Subject to Section 6.09, the Company may in its sole discretion make such increases in the Conversion Rate, in addition to those required by Sections 10.06(a)-(e), as the Board of Directors considers to be advisable to avoid or diminish any U.S. federal income tax to holders of Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes; provided that such increase in the Conversion Rate shall not adversely affect the interests of the Holders of Securities (after taking into account U.S. federal income tax and other consequences of such increase).

(g)    Subject to Section 6.09, to the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least 20 Business Days, the increase is irrevocable during the period and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall mail to Holders of record of the Securities a notice of the increase, which notice will be given at least 15 days prior to the effectiveness of any such increase, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.

(h)    No adjustment in the Conversion Rate shall be required unless such adjustment would require an increase or decrease of at least one percent (1%) in such rate; provided that any adjustments that by reason of this Section 10.06(h) are not required to be made shall be carried forward and the Company shall make such carry forward adjustments, regardless of whether the aggregate adjustment is less than 1%, (x) annually on the anniversary of the first date of the issue of the Securities and otherwise (y)(1) on each day from and after the 25th Scheduled VWAP Trading Day prior to the maturity of the Securities (whether its Maturity Date or otherwise) and (2) in connection with a Fundamental Change or Non-Stock Change of Control on each day from and including the 10th calendar day prior to the anticipated Effective Date of the Fundamental Change or Non-Stock Change of Control to the Fundamental Change Repurchase Date or, in the case of a Non-Stock Change of Control, to the end of the Non-Stock Change of Control Period. All calculations under this Article 10 shall be made by the Company and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000th) of a share, as the case may be. No adjustment need be made for rights to purchase Common Stock pursuant to a Company plan for reinvestment of dividends or interest or for any issuance of Common Stock or convertible or exchangeable securities or rights to purchase Common Stock or convertible or exchangeable securities. Interest will not accrue on any cash into which the Securities are convertible.

(i)    Whenever the Conversion Rate is adjusted as herein provided, the Company will issue a press release through Business Wire containing the relevant information and make this information available on the Company’s website or through another public medium as the

 

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Company may use at that time. In addition, the Company shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officers’ Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a Trust Officer of the Trustee shall have received such Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has actual knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to each Holder of the Securities at his last address appearing on the Register, within 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.

(j)    In any case in which this Section 10.06 provides that an adjustment shall become effective (1) upon the opening of business on an Ex-Date, (2) immediately after the record date for an event, or (3) after the Expiration Time for any tender or exchange offer pursuant to Section 10.06(e), (each a “ Determination Date ”), the Company may elect to defer until the occurrence of the applicable distribution, issuance of Common Stock or payment (an “ Adjustment Event ”) triggering a Conversion Rate adjustment (x) issuing to the Holder of any Securities converted after such Determination Date and before the occurrence of such Adjustment Event, the additional cash, shares of Common Stock, if any, or other securities or property issuable upon such conversion by reason of the adjustment required by such Adjustment Event over and above the cash, the Common Stock, or combination of cash and Common Stock, issuable upon such conversion before giving effect to such adjustment and (y) paying to such Holder any amount in cash in lieu of any fractional share.

(k)    For purposes of this Section 10.06, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.

(l)    No adjustment to the Conversion Rate shall be made pursuant to Section 10.06 on account of a distribution on Common Stock, if the Holders of the Securities will otherwise participate for each $1,000 principal amount of Securities in such distribution without conversion as a result of holding the Securities at the same time and on the same terms as a holder of a number of shares of Common Stock equal to the Conversion Rate.

 

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(m)    Notwithstanding the foregoing, no adjustment to the Conversion Rate need be made for:

(i)    open market share repurchases or other buy-back transactions that are not tender offers referred to in Section 10.06(e), including, without limitation, structured or derivative transactions, or

(ii)    the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Company’s securities and the investment of additional optional amounts in shares of Common Stock under any plan, or

(iii)    the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of its Subsidiaries, or

(iv)    the issuance of any shares of Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security not described in clause (iii) above and outstanding as of the date of the Securities were first issued, or

(v)    solely for a change in the par value of the Common Stock, or

(vi)    for accrued and unpaid Interest, if any.

(n)    Notwithstanding anything to the contrary in this Indenture, if an event occurs that would result in an increase in the Conversion Rate by an amount in excess of limitations imposed by any shareholder approval rules or listing standards of any national securities exchange that are applicable to the Company, the Company will, at its option, either obtain stockholder approval of any issuance of Common Stock upon conversion of the Securities in excess of such limitations or deliver cash in lieu of any shares of Common Stock otherwise deliverable upon conversions in excess of such limitations based on the VWAP Price on each VWAP Trading Day of the relevant Conversion Observation Period in respect of which, in lieu of delivering shares of Common Stock, the Company delivers cash pursuant to this Section 10.06(n).

(o)    Notwithstanding this Section 10.06 and the other provisions of Article 10, if any Conversion Rate adjustment becomes effective, or any Ex-Date (relating to a required Conversion Rate adjustment) occurs, during the period beginning on a Conversion Date and ending on close of business on the last VWAP Trading Day of the corresponding Conversion Observation Period, the Board of Directors may make adjustments to the Conversion Rate or the amount of cash or number of shares of Common Stock issuable upon conversion of the Securities, as may be necessary or appropriate to effect the intent of this Section 10.06 and the other provisions of Article 10 and to avoid unjust or inequitable results, as determined in good faith by the Board of Directors. Any adjustment made pursuant to this Section 10.06(o) shall apply in lieu of the adjustment or other term that would otherwise be applicable.

 

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Section 10.07.     Effect of Reclassification, Consolidation, Merger or Sale . If any of the following events occur, namely:

(a)    any reclassification or change of the outstanding Common Stock (other than as a result of a subdivision or combination),

(b)    any consolidation or merger of the Company with or into another Person or

(c)    any sale, lease, transfer, conveyance or other disposition of all or substantially all of the Company’s assets and those of its Subsidiaries taken as a whole to any other Person or Persons,

as a result of which holders of Common Stock shall be entitled to receive stock, other securities or other property or assets (including cash or any combination thereof) with respect to or in exchange for such Common Stock, in each case, at the effective time of such transaction, the Company or the successor, purchasing corporation or transferee, as the case may be, shall execute with, and deliver to, the Trustee a supplemental indenture (which shall comply with the Trust Indenture Act as in force at the date of execution of such supplemental indenture, if such supplemental indenture is then required to so comply) providing that such Securities shall, without the consent of any Holders of Securities, become convertible into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) (the “ Applicable Consideration ”) that such Holder would have been entitled to receive upon such reclassification, change, consolidation, merger, sale, lease, transfer, conveyance or other disposition, had each $1,000 principal amount of Securities held by such Holder been converted into a number of shares of Common Stock equal to the Conversion Rate immediately prior to such reclassification, change, consolidation, merger, sale, lease, transfer, conveyance or other disposition, except that at and after the effective time of the transaction (w) the amount otherwise payable in cash upon conversion of the Securities will continue to be payable in cash, (x) the Company will continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, in respect of the remainder, if any, of the Company’s conversion obligation in excess of the aggregate principal amount of the Securities being converted, (y) the number of shares of the Common Stock otherwise deliverable upon conversion of the Securities will instead be deliverable in the amount and type of Applicable Consideration that a holder of that number of shares of the Common Stock would have received in such transaction and (z) the VWAP Price will be calculated based on the value of a unit of Applicable Consideration that a holder of one share of the Common Stock would have received in such transaction; provided that any increase in the Conversion Rate in connection with a Non-Stock

 

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Change of Control under Section 10.05 shall be in effect under this Section 10.07 only during the Non-Stock Change of Control Period. If the transaction causes the Common Stock to be converted into, or exchanged for, or constitute solely the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), the Applicable Consideration into which the Securities will be convertible or used to calculate the VWAP Price, as the case may be, will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election. The Company shall notify holders, the Trustee and the Conversion Agent of that weighted average as soon as practicable after such determination is made. The Company shall not become a party to any such transaction unless its terms are consistent with the foregoing. If, in the case of any such reclassification, change, consolidation, merger, sale, lease, transfer, conveyance or other disposition, the stock or other securities and assets receivable thereupon by a holder of Common Stock includes shares of stock or other securities and assets of a corporation other than the successor or purchasing corporation, as the case may be, in such reclassification, change, consolidation, merger, sale, lease, transfer, conveyance or other disposition, then such supplemental indenture shall also be executed by such other corporation and shall contain such additional provisions to protect the interests of the Holders of the Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including to the extent practicable the provisions providing for the conversion rights set forth in this Article 10.

The Company shall cause notice of the execution of such supplemental indenture to be mailed to each Holder, at the address of such Holder as it appears on the register of the Securities maintained by the Registrar, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.

The above provisions of this Section 10.07 shall similarly apply to successive reclassifications, changes, consolidations, mergers, sales, leases, transfers, conveyances or other dispositions.

If this Section 10.07 applies to any event or occurrence, Section 10.06 shall not apply.

Section 10.08.     Taxes on Shares Issued . The issue of stock certificates on conversions of Securities shall be made without charge to the converting Holder of Securities for any documentary, stamp or similar issue or transfer tax in respect of the issue thereof. The Company shall not, however, be required to pay any such tax which may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than that of the Holder of any Securities converted, and the Company shall not be required to issue or deliver any such stock certificate unless and until the Person or Persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.

 

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Section 10.09.     Reservation of Shares, Shares to be Fully Paid; Compliance with Governmental Requirements; Listing of Common Stock . The Company shall provide, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock to provide for the conversion of the Securities, including any Additional Shares, from time to time as such Securities are presented for conversion.

Before taking any action which would cause an adjustment increasing the Conversion Rate to an amount that would cause the Conversion Price to be reduced below the then par value, if any, of the shares of Common Stock issuable upon conversion of the Securities, the Company will take all corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue shares of such Common Stock at such adjusted Conversion Rate.

The Company covenants that all shares of Common Stock which may be issued upon conversion of Securities will upon issue be fully paid and non-assessable by the Company and free from all taxes, liens and charges with respect to the issue thereof.

The Company covenants that, if any shares of Common Stock to be provided for the purpose of conversion of Securities hereunder require registration with or approval of any governmental authority under any federal or state law before such shares may be validly issued upon conversion, the Company will in good faith and as expeditiously as possible, to the extent then permitted by the rules and interpretations of the Commission (or any successor thereto), endeavor to secure such registration or approval, as the case may be.

The Company further covenants that, if at any time the Common Stock shall be listed on The NASDAQ Global Select Market or any other national securities exchange or automated quotation system, the Company will, if permitted by the rules of such exchange or automated quotation system, list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, all Common Stock issuable upon conversion of the Securities; provided that if the rules of such exchange or automated quotation system permit the Company to defer the listing of such Common Stock until the first conversion of the Securities into Common Stock in accordance with the provisions of this Indenture, the Company covenants to list such Common Stock issuable upon conversion of the Securities in accordance with the requirements of such exchange or automated quotation system at such time.

 

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Section 10.10.     Responsibility of Trustee . The Trustee and any other Conversion Agent shall not at any time be under any duty or responsibility to any Holder of Securities to determine the Conversion Rate or whether any facts exist which may require any adjustment 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 shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any capital stock, other securities or other assets or property, which may at any time be issued or delivered upon the conversion of any Securities; and the Trustee and any other Conversion Agent make no representations with respect thereto. Neither the Trustee nor any Conversion Agent shall 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 Securities for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article 10. Without limiting the generality of the foregoing, neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section 10.07 relating either to the kind or amount of shares of capital stock or other securities or other assets or property (including cash) receivable by Holders of Securities upon the conversion of their Securities after any event referred to in such Section 10.07 or to any adjustment to be made with respect thereto, but, subject to the provisions of Section 9.01, may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officers’ Certificate (which the Company shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto.

Section 10.11.     Notice to Holders Prior to Certain Actions . In case:

(a)    the Company shall declare a dividend (or any other distribution) on its Common Stock that would require an adjustment in the Conversion Rate pursuant to Section 10.06; or

(b)    the Company shall authorize the granting to the Holders of all or substantially all of its Common Stock or rights or warrants to subscribe for or purchase any share of any class of its Capital Stock or any other rights or warrants that would require an adjustment in the Conversion Rate pursuant to Section 10.06;

(c)    of any reclassification or reorganization of the Common Stock of the Company (other than a subdivision or combination of its outstanding Common Stock, or a change in par value, or from par value to no par value, or from no par value to par value), or of any

 

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consolidation or merger to which the Company is a party and for which approval of any stockholders of the Company is required, or of the sale or transfer of all or substantially all of the assets of the Company; or

(d)    of the voluntary or involuntary dissolution, liquidation or winding up of the Company;

then the Company shall cause to be filed with the Trustee and to be mailed to each Holder of Securities at its address appearing on the Register provided for in Section 2.05 of this Indenture, as promptly as possible but in any event at least ten calendar days prior to the applicable date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution or rights or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution or rights are to be determined, or (y) the date on which such reclassification, reorganization, consolidation, merger, sale, transfer, dissolution, liquidation or winding up is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such reclassification, reorganization, consolidation, merger, sale, transfer, dissolution, liquidation or winding up; provided that a separate notice shall not be required under this Section if such notice has been effectively provided under another provision of this Indenture. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such dividend, distribution, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up.

Section 10.12.     Stockholder Rights Plans . To the extent that any stockholder rights plan (i.e., a “poison pill”) adopted by the Company is in effect upon conversion of the Security, the converting Holder shall receive, in addition to any shares of Common Stock issued in connection with such conversion, the rights under the rights plan, unless prior to such conversion, the rights plan has terminated or expired, all the rights have been redeemed or the rights have separated from the Common Stock. There shall be no adjustment to the Conversion Rate with respect to the adoption of any such rights plan and the distribution of the rights with respect to shares of Common Stock, unless rights have separated from the Common Stock. If the rights provided for in any future rights plan adopted by the Company have separated from the shares of Common Stock in accordance with the provisions of the applicable stockholder rights agreement so that the Holders of the Securities would not be entitled to receive any rights in respect of Common Stock issuable upon conversion of the Securities, the Conversion Rate will be adjusted as provided in Section 10.06(d), and will be further adjusted in the event of any events affecting such rights following any separation from the Common Stock and subject to readjustment in the event of the expiration, termination or redemption of such rights.

 

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Section 10.13.     Settlement Upon Conversion; Cash Percentage Election . (a) Upon any conversion of Securities, the Company will deliver to converting Holders in respect of each $1,000 principal amount of Securities being converted a “ Settlement Amount ” equal to the sum of the Daily Settlement Amounts for each of the 20 VWAP Trading Days during the Conversion Observation Period. Settlement in cash and shares of Common Stock, if any, will occur no later than the fifth VWAP Trading Day following the final VWAP Trading Day of the Conversion Observation Period.

(b)    By the close of business on the Business Day prior to the first Scheduled VWAP Trading Day of the applicable Conversion Observation Period, the Company may specify a percentage of the Daily Share Amount included in the Daily Settlement Amount that will be settled in cash (the “ Cash Percentage ”) and will notify the Holders of such Cash Percentage through written notice to the Trustee (the “ Cash Percentage Notice ”). If the Company elects to specify a Cash Percentage, (x) the amount of cash that the Company will deliver in respect of the Daily Share Amount for each Trading Day in the applicable Conversion Observation Period will equal the product of: (i) the Cash Percentage, (ii) the Daily Share Amount for such Trading Day (assuming for this purpose the Company has not specified a Cash Percentage), and (iii) the VWAP Price for such Trading Day and (y) the number of shares of Common Stock deliverable in respect of each Trading Day in the applicable Conversion Observation Period (in lieu of the full Daily Share Amount for such Trading Day) will be a percentage of the Daily Share Amount (assuming the Company has not specified a Cash Percentage) equal to 100% minus the Cash Percentage.

If the Company does not specify a Cash Percentage by the close of business on the Business Day prior to the scheduled first Trading Day of the applicable Conversion Observation Period, the Company must settle 100% of the Daily Share Amount for each Trading Day in the applicable Conversion Observation Period with shares of Common Stock; provided that the Company shall pay cash in lieu of fractional shares otherwise issuable upon conversion of such Securities.

ARTICLE 11

MISCELLANEOUS

Section 11.01.     Trust Indenture Act Controls . If any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture by the TIA, the required provision shall control.

 

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Section 11.02.     Notices . Any notice or communication shall be in writing and delivered in person or mailed by first-class mail addressed as follows:

if to the Company:

Nuance Communications, Inc.

1 Wayside Road

Burlington, MA 01803

Attention: Chief Financial Officer

if to the Trustee:

U.S. Bank National Association

Corporate Trust Services

225 Asylum Street, 23 rd Floor

Hartford, CT 06103

Attention: Arthur L. Blakeslee (Nuance Communications

1.25% Sr. Conv. Notes Due 2025

The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.

Any notice or communication mailed to a Securityholder shall be mailed to the Securityholder at the Securityholder’s address as it appears on the Register of the Registrar and shall be sufficiently given if so mailed within the time prescribed.

Failure to mail a notice or communication to a Securityholder or any defect in it shall not affect its sufficiency with respect to other Securityholders. All notices and communications (other than those sent to the Trustee) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail in the manner provided above; when receipt acknowledged, if sent by facsimile transmission; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next-day delivery. All notices and communications to the Trustee shall be deemed duly given and effective only upon receipt.

With respect to any Global Security, references in this Indenture to any required “mailing” of a notice shall be deemed to refer to any other means of notice consistent with the Depositary’s applicable procedures.

 

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Notwithstanding any other provision of this Indenture or any Security, where this Indenture or any Security provides for notice of any event (including any notice of repurchase) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to DTC (or its designee) pursuant to the standing instructions from DTC or its designee.

Section 11.03.     Communication by Securityholders with Other Securityholders . Securityholders may communicate pursuant to TIA § 312(b) with other Securityholders with respect to their rights under this Indenture or the Securities. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).

Section 11.04.     Certificate and Opinion as to Conditions Precedent . Upon any request or application by the Company to the Trustee to take or refrain from taking any action under this Indenture, the Company shall furnish to the Trustee:

(a)    an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and

(b)    an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been complied with.

Section 11.05.     Statements Required in Certificate or Opinion . Each certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture shall include:

(a)    a statement that the individual making such certificate or opinion has read such covenant or condition;

(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;

(c)    a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

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(d)    a statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with.

Section 11.06.     When Securities Disregarded . In determining whether the Securityholders of the required principal amount of Securities have concurred in any direction, waiver or consent, Securities owned by the Company or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company shall be disregarded and deemed not to be outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Securities which the Trustee knows are so owned shall be so disregarded. Subject to the foregoing, only Securities outstanding at the time shall be considered in any such determination.

Section 11.07.     Rules by Trustee, Paying Agent and Registrar . The Trustee may make reasonable rules for action by or a meeting of Securityholders. The Registrar and the Paying Agent may make reasonable rules for their functions.

Section 11.08.     Legal Holidays . A “ Legal Holiday ” is a Saturday, a Sunday or a day on which banking institutions are not required to be open in the State of New York. If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.

Section 11.09.     Governing Law . THIS INDENTURE AND THE SECURITIES, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF).

Section 11.10.     No Recourse Against Others . A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Securityholder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Securities.

 

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Section 11.11.     Successors . All agreements of the Company in this Indenture and the Securities shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors.

Section 11.12.     Multiple Originals . The parties may sign any number of copies of this Indenture. The exchange of copies of this Indenture and of signature pages by facsimile or pdf transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto. Each signed copy shall be an original, but all of them together shall represent one and the same agreement. One signed copy is enough to prove this Indenture.

Section 11.13.     Table of Contents; Headings . The table of contents, cross-reference sheet and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.

Section 11.14.     Calculations in Respect of the Securities . Except as otherwise provided in Section 10.01(b) of this Indenture, the Company will be responsible for making all calculations called for under the Indenture or the Securities. These calculations include, but are not limited to, determinations of the Closing Sale Price of the Common Stock, accrued interest payable on the Securities, the Conversion Rate and Conversion Price. The Company or its agents will make all these calculations in good faith and, absent manifest error, such calculations will be final and binding on Holders of the Securities. The Company will provide a schedule of these calculations to each of the Trustee and the Paying Agent upon request, and each of the Trustee and Conversion Agent is entitled to rely upon the accuracy of such calculations without independent verification. The Trustee will forward these calculations to any Holder of the Securities upon the request of that Holder.

Section 11.15     USA Patriot Act . The parties hereto acknowledge that in accordance with Section 326 of the USA Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or

 

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legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the USA Patriot Act.

 

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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.

 

NUANCE COMMUNICATIONS, INC., as Issuer

By:  

/s/ Daniel D. Tempesta

  Name:   Daniel D. Tempesta
  Title:   Executive Vice President and Chief Financial Officer

U.S. BANK NATIONAL ASSOCIATION, as Trustee

By:  

/s/ Arthur L. Blakeslee

  Name:   Arthur L. Blakeslee
  Title:   Vice President

 

[ Signature Page to Indenture ]


EXHIBIT A

[FORM OF FACE OF SECURITY]

[INCLUDE THE FOLLOWING LEGEND IF A GLOBAL SECURITY]

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“ DTC ”), NEW YORK, NEW YORK, TO NUANCE COMMUNICATIONS, INC. (“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 SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL SECURITY SHALL 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 SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]

[INCLUDE THE FOLLOWING LEGEND IF A RESTRICTED SECURITY]

[THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

(1)    REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND

(2)    AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY


SUCCESSOR PROVISION THERETO, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:

(A)    TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR

(B)    PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR

(C)    TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR

(D)    PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]


Nuance Communications, Inc.

1.25% Senior Convertible Notes Due 2025

 

No.             

Initially $            

CUSIP No.: 67020Y AM2

ISIN Number: US61020Y AM21

Nuance Communications, Inc., a Delaware corporation, promises to pay to [CEDE & CO., or its registered assigns] 1 , the principal sum of      Dollars, [as revised by the Schedule of Increases or Decreases in Global Security attached hereto,] 2 on April 1, 2025.

Interest Payment Dates: April 1 and October 1.

Interest Record Dates: March 15 and September 15.

Reference is made to the further provisions of this Security set forth on the reverse hereof, including, without limitation, provisions giving the Holder of this Security the right to convert this Security into cash and, if applicable, Common Stock, on the terms and subject to the limitations referred to on the reverse hereof and as more fully specified in the Indenture. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.

This Security shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been manually signed by the Trustee or a duly authorized authenticating agent under the Indenture.

IN WITNESS WHEREOF, the parties have caused this instrument to be duly executed.

 

NUANCE COMMUNICATIONS, INC.,
  as Issuer
By:  

 

  Name:
  Title:

 

1   Use bracketed language for a Global Security.
2   Use bracketed language for a Global Security.


Dated:

 

TRUSTEE’S CERTIFICATE OF
  AUTHENTICATION
U.S. BANK NATIONAL
ASSOCIATION, as Trustee, certifies that this is one of the Securities referred to in the Indenture.
By:  

 

 

Authorized Signatory


[FORM OF REVERSE SIDE OF SECURITY]

Nuance Communications, Inc.

1.25% Senior Convertible Notes Due 2025

 

1. Interest

(a)    NUANCE COMMUNICATIONS, INC., a Delaware corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “ Company ”), promises to pay interest on the principal amount of this Security at the rate of 1.25% per annum. The Company will pay interest semiannually on April 1 and October 1 of each year commencing on October 1, 2017. Interest on the Security will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from March 17, 2017. Interest will be computed on the basis of a 360-day year of twelve 30-day months. If a payment date is not a Business Day, payment will be made on the next succeeding Business Day, and no additional interest will accrue in respect of such payment by virtue of the payment being made on such later date.

(b)    The Company may elect to pay additional interest on this Security as sole remedy for an Event of Default relating to a failure to file with the Trustee reports required under the Exchange Act.

(c)    Except as otherwise specifically set forth, all references herein to “interest” include additional interest that the Company elects to pay in connection with a failure to file reports required under the Exchange Act, if any.

 

2. Paying Agent, Registrar and Conversion Agent

Initially, U.S. Bank National Association, a national banking association (the “ Trustee ”), will act as Paying Agent, Registrar and Conversion Agent. The Company may appoint and change any Paying Agent, Registrar or co-registrar or Conversion Agent without notice. The Company or any of its domestically incorporated wholly owned Subsidiaries may act as Paying Agent, Registrar or co-registrar, or Conversion Agent.

 

3. Indenture

The Company issued the Securities under an Indenture dated as of March 17, 2017 (the “Indenture”), between the Company and the Trustee. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of the Indenture (the “ TIA ”). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture (except as specifically provided in Section 1(b)). The Securities are subject to all such terms, and Securityholders are referred to the Indenture and the TIA for a statement of those terms.


This Security is one of the Securities referred to in the Indenture issued in an initial aggregate principal amount of $350,000,000 (as increased by an amount of up to $60,000,000 aggregate principal amount of any additional Securities purchased by the Initial Purchasers pursuant to the exercise of their over-allotment option as set forth in the Purchase Agreement). Additional Securities may be issued in accordance with the Indenture. The Indenture also imposes limitations on the ability of the Company to consolidate or merge with or into any other Person or convey, transfer or lease all or substantially all of the property of the Company.

 

5. No Redemption

The Securities will not be redeemable prior to the Maturity Date.

 

6. Repurchase of Securities at the Option of Securityholders upon a Fundamental Change

If a Fundamental Change occurs at any time prior to maturity of the Security, this Security will be subject to a repurchase on the terms and conditions of the Indenture, at the option of the Holder, on a Fundamental Change Repurchase Date, specified by the Company.

 

7. Conversion

Upon the occurrence of certain events specified in the Indenture and in compliance with the provisions of the Indenture, on or prior to the close of business on the Business Day immediately preceding the Maturity Date of this Security, the Holder hereof has the right, at its option, to convert each $1,000 principal amount of this Security into a combination of cash and Common Stock, determined as set forth in the Indenture, based on a Conversion Rate of 45.0106 shares of Common Stock per $1,000 principal amount of Securities, as the same may be adjusted pursuant to the terms of the Indenture.

 

8. Denominations, Transfer, Exchange

The Securities are in registered form without coupons in minimum denominations of $1,000 and integral multiples in excess of $1,000. A Securityholder may transfer or exchange Securities in accordance with the Indenture. Upon any transfer or exchange, the Registrar and the Trustee may require a Securityholder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes required by law or permitted by the Indenture.

 

9. Persons Deemed Owners

The registered Holder of this Security may be treated as the owner of it for all purposes.

 

10. Defaults and Remedies

If an Event of Default (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company) occurs and is continuing, the Trustee or


the Holders of at least 25% in principal amount of the outstanding Securities may declare the principal of and accrued but unpaid interest on all the Securities to be due and payable. If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company occurs, the principal of and interest on all the Securities will become immediately due and payable without any declaration or other act on the part of the Trustee or any Securityholder.

 

11. No Recourse Against Others

A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Securityholder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.

 

12. Authentication

This Security shall not be valid until an authorized signatory of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this Security.

 

13. Abbreviations

Customary abbreviations may be used in the name of a Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).

 

14. Governing Law

THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

15. CUSIP and ISIN Numbers

Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures, the Company has caused CUSIP and ISIN numbers to be printed on the Securities and has directed the Trustee to use CUSIP and ISIN numbers in notices of repurchase as a convenience to Securityholders. No representation is made as to the accuracy of such numbers either as printed on the Securities or as contained in any notice of repurchase and reliance may be placed only on the other identification numbers placed thereon.

The Company will furnish to any Holder of Securities upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Security.


CONVERSION NOTICE

 

TO:         NUANCE COMMUNICATIONS, INC.

        U.S. BANK NATIONAL ASSOCIATION, as Trustee

The undersigned registered owner of this Security hereby irrevocably exercises the option to convert this Security, or the portion thereof (which is $1,000 or a multiple thereof) below designated, into, cash and shares of Common Stock, if any, in accordance with the terms of the Indenture referred to in this Security, and directs that the check in payment for cash and the shares, if any, issuable and deliverable upon such conversion, deliverable upon conversion or for fractional shares and any Securities representing any unconverted principal amount hereof, be issued and delivered to the registered Holder hereof unless a different name has been indicated below. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture. If shares or any portion of this Security not converted are to be issued in the name of a person other than the undersigned, the undersigned will provide the appropriate information below and pay all transfer taxes payable with respect thereto. Any amount required to be paid by the undersigned on account of interest accompanies this Security.

 

Dated:                                

 

        

 

         Signature(s)

 

 

Signature Guarantee
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to be issued, or Notes are to be delivered, other than to and in the name of the registered holder.


Fill in for registration of shares if to be issued, and Notes if to be delivered, other than to and in the name of the registered holder:

 

(Name)

 

(Street Address)

 

(City, State and Zip Code)

Please print name and address

 

Principal amount to be converted (if less than all): $        ,000
NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.

 

Social Security or Other Taxpayer Identification Number


[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]

 

TO:         NUANCE COMMUNICATIONS, INC.

        U.S. BANK NATIONAL ASSOCIATION, as Trustee

The undersigned registered owner of this Security hereby irrevocably acknowledges receipt of a notice from Nuance Communications, Inc. (the “ Company ”) regarding the right of Holders to elect to require the Company to repurchase the Securities and requests and instructs the Company to repay the entire principal amount of this Security, or the portion thereof (which is $1,000 or an integral multiple thereof) below designated, in accordance with the terms of the Indenture at the price of 100% of such entire principal amount or portion thereof, together with accrued and unpaid interest to, but excluding, the Fundamental Change Repurchase Date to the registered Holder hereof. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture. The Securities shall be repurchased by the Company as of the Fundamental Change Repurchase Date pursuant to the terms and conditions specified in the Indenture.

Dated:                     

 

Signature(s):  

 

 

 

NOTICE: The above signatures of the Holder(s) hereof must correspond with the name as written upon the face of the Securities in every particular without alteration or enlargement or any change whatever.

Securities Certificate Number (if applicable):                     

Principal amount to be repurchased (if less than all, must be $1,000 or whole multiples thereof):                     

Social Security or Other Taxpayer Identification Number:                     


[FORM OF ASSIGNMENT]

For value received                      hereby sell(s) assign(s) and transfer(s) unto                      (Please insert social security or other Taxpayer Identification Number of assignee) the within Securities, and hereby irrevocably constitutes and appoints                      attorney to transfer said Securities on the books of the Company, with full power of substitution in the premises.

In connection with any transfer of the Securities prior to the expiration of the holding period applicable to sales thereof under Rule 144(d) under the Securities Act of 1933, as amended (or any successor provision) (other than any transfer pursuant to a registration statement that has been declared effective under the Securities Act of 1933, as amended), the undersigned confirms that such Securities are being transferred:

 

  To Nuance Communications, Inc. or a subsidiary thereof; or

 

  To a “qualified institutional buyer” in compliance with Rule 144A under the Securities Act of 1933, as amended;

 

  Pursuant to a Registration Statement which has been declared effective under the Securities Act of 1933, as amended, and which continues to be effective at the time of transfer; or

 

  Pursuant to an exemption from registration provided by Rule 144 under the Securities Act of 1933, as amended, or any other available exemption from the registration requirements of the Securities Act of 1933, as amended;

and unless the Securities has been transferred to Nuance Communications, Inc. or a subsidiary thereof, the undersigned confirms that such Securities are not being transferred to an “affiliate” of the Company as defined in Rule 144 under the Securities Act of 1933, as amended.

Unless one of the boxes is checked, the Trustee will refuse to register any of the Securities evidenced by this certificate in the name of any person other than the registered Holder thereof.


Dated:                     

 

 

 

Signature(s)

Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if Notes are to be delivered, other than to and in the name of the registered holder.

 

Signature Guarantee

NOTICE: The signature on this Assignment must correspond with the name as written upon the face of the Securities in every particular without alteration or enlargement or any change whatever.


SCHEDULE OF INCREASES AND DECREASES IN GLOBAL SECURITY 3

The following increases or decreases in this Global Security have been made:

 

Date

   Amount of decrease in
Principal Amount of
Global Security
     Amount of increase in
Principal Amount of this
Global Security
     Principal Amount of this
Global Security
following such decrease
or increase
     Signature of authorized
signatory of Trustee or
Securities Custodian
 
           
           

 

3   For Global Securities only.

Exhibit 10.1

EXECUTION VERSION

NUANCE COMMUNICATIONS, INC.

U.S.$350,000,000 1.25% Senior Convertible Notes Due 2025 *

Purchase Agreement

March 13, 2017

Morgan Stanley & Co. LLC

Barclays Capital Inc.

As Representatives of the several

Initial Purchasers named in

Schedule I hereto

c/o

      Morgan Stanley & Co. LLC

      1585 Broadway

      New York, NY 10036

      Barclays Capital Inc.

      745 Seventh Avenue

      New York, NY 10019

Ladies and Gentlemen:

Nuance Communications, Inc., a corporation organized under the laws of Delaware (the “Company”), proposes to issue and sell to the several parties named in Schedule I hereto (the “Initial Purchasers”), for whom you (the “Representatives”) are acting as Representatives, U.S.$350,000,000 principal amount of its 1.25% Senior Convertible Notes due 2025 (the “Firm Securities”). The Company also proposes to grant to the Initial Purchasers an option to purchase up to U.S.$60,000,000 additional principal amount of such Notes to cover over-allotments, if any (the “Option Securities” and, together with the Firm Securities, the “Securities”). The Securities are convertible into cash and, if applicable, shares of Common Stock, par value U.S.$0.001 per share (the “Common Stock”), of the Company at the conversion price set forth herein. The Securities are to be issued under an indenture (the “Indenture”), to be dated as of the Closing Date, between the Company and U.S. Bank National Association, as trustee (the “Trustee”). To the extent there are no additional parties listed on Schedule I other than you, the term Representatives as used herein shall mean you as the Initial Purchasers, and the terms Representatives and Initial Purchasers shall mean either the singular or plural as the context requires. The use of the neuter in this Agreement shall include the feminine and masculine wherever appropriate. Certain terms used herein are defined in Section 25 hereof.

 

 

*   Plus an option to purchase up to U.S.$60,000,000 additional principal amount from the Company to cover over-allotments.

 

1


The sale of the Securities to the Initial Purchasers will be made without registration of the Securities or the Common Stock issuable upon conversion thereof under the Act in reliance upon exemptions from the registration requirements of the Act.

In connection with the sale of the Securities, the Company has prepared a preliminary offering memorandum, dated March 13, 2017 (as amended or supplemented at the date thereof, including any and all exhibits thereto and any information incorporated by reference therein, the “Preliminary Memorandum”), and a final offering memorandum, dated March 13, 2017 (as amended or supplemented at the Execution Time, including any and all exhibits thereto and any information incorporated by reference therein, the “Final Memorandum”). Each of the Preliminary Memorandum and the Final Memorandum sets forth certain information concerning the Company, the Securities and the Common Stock issuable upon conversion thereof, if any. The Company hereby confirms that it has authorized the use of the Disclosure Package, the Preliminary Memorandum and the Final Memorandum, and any amendment or supplement thereto, in connection with the offer and sale of the Securities by the Initial Purchasers. Unless stated to the contrary, any references herein to the terms “amend”, “amendment” or “supplement” with respect to the Final Memorandum shall be deemed to refer to and include any information filed under the Exchange Act subsequent to the Execution Time that is incorporated by reference therein.

1.     Representations and Warranties . The Company represents and warrants to, and agrees with, each Initial Purchaser as set forth below in this Section 1.

(a)    The Preliminary Memorandum, at the date thereof, did not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. At the Execution Time and on the Closing Date, the Final Memorandum did not and will not (and any amendment or supplement thereto, at the date thereof and at the Closing Date, will not) contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , however , that the Company makes no representation or warranty as to the information contained in or omitted from the Preliminary Memorandum or the Final Memorandum, or any amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Initial Purchasers through the Representatives specifically for inclusion therein, it being understood and agreed that the only such information furnished by or on behalf of any Initial Purchaser consists of the information described as such in Section 8(b) hereof.

(b)    The Disclosure Package, as of the Execution Time, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the

 

2


Company by any Initial Purchaser through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Initial Purchaser consists of the information described as such in Section 8(b) hereof.

(c)    Since the date of the most recent financial statements included in the Disclosure Package and the Final Memorandum (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any supplement thereto).

(d)    None of the Company, its Affiliates, or any person acting on its or their behalf has directly or indirectly, made offers or sales of any security, or solicited offers to buy, any security under circumstances that would require the registration of the Securities or the Common Stock issuable upon conversion thereof under the Act.

(e)    None of the Company, its Affiliates, or any person acting on its or their behalf has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Securities.

(f)    The Securities satisfy the eligibility requirements of Rule 144A(d)(3) under the Act.

(g)    No registration under the Act of the Securities or the Common Stock issuable upon conversion thereof is required for the offer and sale of the Securities to or by the Initial Purchasers in the manner contemplated herein, in the Disclosure Package and the Final Memorandum.

(h)    The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Memorandum will not be, an “investment company” as defined in the Investment Company Act.

(i)    The Company is subject to and in full compliance with the reporting requirements of Section 13 or Section 15(d) of the Exchange Act.

(j)    The Company has not paid or agreed to pay to any person any compensation for soliciting another to purchase any securities of the Company (except as contemplated in this Agreement).

(k)    The Company has not taken, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.

 

3


(l)    Each of the Company and its “significant subsidiaries” (as such term is defined in Rule 1-02 of Regulation S-X) (each a “Significant Subsidiary”) has been duly incorporated or formed and is validly existing as a corporation or limited liability company, as applicable, in good standing under the laws of the jurisdiction in which it is chartered or organized, except where the failure of such subsidiary to be in good standing would not reasonably be expected to have a Material Adverse Effect, with full corporate or limited liability company power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Memorandum, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that requires such qualification, except where the failure to be in good standing or duly qualified would not reasonably be expected to have a Material Adverse Effect (as defined herein).

(m)    All the outstanding shares of capital stock (or other ownership interests) of each Significant Subsidiary of the Company have been duly authorized and validly issued and are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the Final Memorandum and except for director nominee shares immaterial in amount or as would not otherwise reasonably be expected to have a Material Adverse Effect, all outstanding shares of capital stock of the subsidiaries of the Company are owned by the Company either directly or through wholly owned subsidiaries free and clear of any security interest, claim, lien or encumbrance.

(n)    The Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Final Memorandum; the capital stock of the Company conforms to the description thereof contained in the Disclosure Package and the Final Memorandum; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable; the maximum number of shares of Common Stock initially issuable upon conversion of the Securities (assuming the Company settled such conversion, including the maximum number of additional shares of Common Stock that may be issued upon conversion of the Securities in connection with a “non-stock change of control” (as defined in the Indenture) solely in shares of Common Stock) (the “Maximum Number of Shares”) have been duly authorized and, when issued upon conversion of the Securities, will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly adopted resolutions reserving the Maximum Number of Shares for issuance upon conversion of the Securities; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities or the shares of Common Stock issuable upon conversion thereof; and, except as set forth in the Disclosure Package and the Final Memorandum, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding.

(o)    The statements in the Preliminary Memorandum and the Final Memorandum under the headings “Certain U.S. Federal Income Tax Considerations”, “Description of the Notes”, “Description of Capital Stock”, “Plan of Distribution” and “Legal Matters” (which section is incorporated by reference) fairly summarize the matters therein described in all material respects.

 

4


(p)    This Agreement has been duly authorized, executed and delivered by the Company; the Indenture has been duly authorized and, assuming due authorization, execution and delivery thereof by the Trustee, when executed and delivered by the Company, will constitute a legal, valid, binding instrument enforceable against the Company in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity); the Securities have been duly authorized by the Company, and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers, will have been duly executed and delivered by the Company and will constitute the legal, valid and binding obligations of the Company entitled to the benefits of the Indenture (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity) and will be convertible in accordance with their terms.

(q)    Neither the Company nor any of its subsidiaries nor any agent thereof acting on their behalf has taken, and none of them will take, any action that might cause this Agreement or the issuance or sale of the Securities to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System.

(r)    No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the Indenture, except such as may be required under the blue sky laws of any jurisdiction in which the Securities are offered and sold.

(s)    None of the execution and delivery of the Indenture or this Agreement, the issuance and sale of the Securities or the issuance of the Maximum Number of Shares upon conversion thereof, or the consummation of any other of the transactions herein or therein contemplated, or the fulfillment of the terms hereof or thereof will conflict with, result in a breach or violation of (or result in any Debt Repayment Triggering Event, solely in the case of clause (ii) below), or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (i) the charter or by-laws or comparable constituting documents of the Company or any of its subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which its or their property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of its or their properties, other than in (ii) or (iii), as disclosed in the Disclosure Package or those violations or defaults that would not reasonably be expected to have a Material Adverse Effect or a material adverse effect on the transactions contemplated by this Agreement. As used herein, a “Debt Repayment Triggering Event” means any event or condition which gives, or with the giving of notice or lapse of time would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.

 

5


(t)    The consolidated historical financial statements and schedules of the Company and its consolidated subsidiaries included or incorporated by reference in the Disclosure Package and the Final Memorandum present fairly the financial condition, results of operations and cash flows of the Company as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of Regulation S-X and have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods involved; the selected financial data set forth under the caption “Summary Consolidated Financial Information” in the Preliminary Memorandum and the Final Memorandum fairly present, on the basis stated in the Preliminary Memorandum and the Final Memorandum, the information included or incorporated by reference therein.

(u)    No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property is pending or, to the best knowledge of the Company, threatened that (i) could reasonably be expected to have a material adverse effect on the performance of this Agreement or the Indenture, or the consummation of any of the transactions contemplated hereby or thereby or (ii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”), except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto).

(v)    Each of the Company and each of its subsidiaries owns or leases all such properties as are necessary to the conduct of its operations as presently conducted.

(w)    Neither the Company nor any of its subsidiaries is in violation or default of (i) any provision of its charter or bylaws or comparable constituting documents; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or such subsidiary of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiary or any of its properties, as applicable, other than in (ii) or (iii), those violations or defaults that would not reasonably be expected to have a Material Adverse Effect.

(x)    BDO USA, LLP, who have certified certain financial statements of the Company and its consolidated subsidiaries and delivered their report with respect to the audited consolidated financial statements and schedules included or incorporated by reference in the Disclosure Package and the Final Memorandum, are independent public accountants with respect to the Company within the meaning of generally accepted accounting principles in the United States and within the meaning of the Act.

(y)    There are no stamp or other issuance or transfer taxes or duties or other similar fees or charges required to be paid in connection with the execution and delivery of this Agreement or the issuance or sale of the Securities or upon the issuance of the Maximum Number of Shares upon the conversion thereof.

 

6


(z)    The Company has filed all applicable tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto)) and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto).

(aa)    No labor problem or dispute with the employees of the Company or any of its subsidiaries exists or is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, except as would not have a Material Adverse Effect, and except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto).

(bb)    The Company and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and, in its judgment, in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Company or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; the Company and its subsidiaries are in compliance with the terms of such policies and instruments; there are no claims by the Company or any of its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; neither the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Company nor any of its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto).

(cc)    No subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s property or assets to the Company or any other subsidiary of the Company, except as described in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto).

(dd)    The Company and its subsidiaries possess all licenses, certificates, permits and other authorizations issued by all applicable authorities necessary to conduct their respective

 

7


businesses, except as would not have a Material Adverse Effect, and neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto).

(ee)    The Company and its subsidiaries own or possess, or can acquire on reasonable terms, all patents, patent rights, licenses, inventions, copyrights, know how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names currently employed by them in connection with the business now operated by them except for those, the failure to own or possess, would not reasonably be expected to result in a Material Adverse Effect, and neither the Company nor any of its subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any of the foregoing which, singly or in the aggregate, would reasonably be expected to have a Material Adverse Effect.

(ff)    The Company and each of its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles in the United States and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and its subsidiaries’ internal controls over financial reporting are effective and the Company and its subsidiaries are not aware of any material weakness in their internal controls over financial reporting.

(gg)    The Company and its subsidiaries maintain “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and procedures are effective.

(hh)    The Company and its subsidiaries are (i) in compliance with any and all applicable laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”); (ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii) have not received notice of any actual or potential liability under any Environmental Law, except where such non-compliance with Environmental Laws, failure to receive or be in compliance with required permits, licenses or other approvals, or liability would not, individually or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). Except as set forth in the Disclosure Package and the Final Memorandum, neither the Company nor any of its subsidiaries has been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.

 

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(ii)    None of the following events has occurred or exists: (i) a failure to fulfill the obligations, if any, under the minimum funding standards of Section 302 of the United States Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and the regulations and published interpretations thereunder with respect to a Plan, determined without regard to any waiver of such obligations or extension of any amortization period; (ii) an audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal or state governmental agency or any foreign regulatory agency with respect to the employment or compensation of employees by any of the Company or any of its subsidiaries that would not, individually or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum; (iii) any breach of any contractual obligation, or any violation of law or applicable qualification standards, with respect to the employment or compensation of employees by the Company or any of its subsidiaries that would not, individually or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum. None of the following events has occurred or is reasonably likely to occur: (i) a material increase in the aggregate amount of contributions required to be made to all Plans in the current fiscal year of the Company and its subsidiaries compared to the amount of such contributions made in the most recently completed fiscal year of the Company and its subsidiaries; (ii) a material increase in the “accumulated post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106) of the Company and its subsidiaries compared to the amount of such obligations in the most recently completed fiscal year of the Company and its subsidiaries; (iii) any event or condition giving rise to a liability under Title IV of ERISA that would not, individually or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum; or (iv) the filing of a claim by one or more employees or former employees of the Company or any of its subsidiaries related to their employment that would not, individually or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum. For purposes of this paragraph, the term “Plan” means a plan (within the meaning of Section 3(3) of ERISA) subject to Title IV of ERISA with respect to which the Company or any of its subsidiaries may have any liability.

(jj)    Neither the Company nor any of its subsidiaries or affiliates, nor any director, officer, or employee, nor, to the Company’s knowledge, any agent or representative of the Company or of any of its subsidiaries or affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office, or any other person) to influence official action or secure an improper advantage; and the Company and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.

 

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(kk)    The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.

(ll)    (i) Neither the Company nor any of its subsidiaries, nor any director, officer, or employee thereof, nor, to the Company’s knowledge, any agent, affiliate or representative of the Company or any of its subsidiaries, is an individual or entity (“Person”) that is, or is owned or controlled by a Person that is:

(A) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor

(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).

(ii) The Company will not, directly or indirectly, use the proceeds of the offering of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:

(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or

(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).

(iii) For the past 5 years, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.

 

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(mm)    There is and has been no failure on the part of the Company and any of the Company’s directors or officers, in their capacities as such, to comply with Section 402, related to loans, and Sections 302 and 906, related to certifications, of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), or, in any material respect, with any other provision of the Sarbanes-Oxley Act.

(nn)    The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.

(oo)    Prior to the date hereof, the Company has furnished to the Representatives letters, each substantially in the form of Exhibit A hereto, duly executed by each executive officer and director of the Company set forth on Annex A and addressed to the Representatives.

Any certificate signed by any officer of the Company and delivered to the Representatives or counsel for the Initial Purchasers in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Initial Purchaser.

2.     Purchase and Sale . (a) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Initial Purchaser, and each Initial Purchaser agrees, severally and not jointly, to purchase from the Company, at a purchase price of 98.375% of the principal amount thereof, plus accrued interest, if any, from March 17, 2017 to the Closing Date, the principal amount of Firm Securities set forth opposite such Initial Purchaser’s name in Schedule I hereto.

(b)    Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company hereby grants an option to the several Initial Purchasers to purchase, severally and not jointly, the Option Securities at the same purchase price as Initial Purchasers shall pay for the Firm Securities, plus accrued interest, if any, from March 17, 2017 to the settlement date for the Option Securities. The option may be exercised only to cover over-allotments in the sale of the Firm Securities by the Initial Purchasers. The option may be exercised in whole or in part at any time (but not more than once) on or before the 13th day after the date of the Final Memorandum upon written or telegraphic notice by the Representatives to the Company setting forth the principal amount of Option Securities as to which the several Initial Purchasers are exercising the option and the settlement date. Delivery of the Option Securities, and payment therefor, shall be made as provided in Section 3 hereof. The principal amount of Option Securities to be purchased by each Initial Purchaser shall be the same percentage of the total principal amount of Option Securities to be purchased by the several Initial Purchasers as such Initial Purchaser is purchasing of the Firm Securities, subject to such adjustments as you in your absolute discretion shall make to eliminate any fractional Securities.

3.     Delivery and Payment . (a) Delivery of and payment for the Firm Securities and the Option Securities (if the option provided for in Section 2(b) hereof shall have been exercised on or before the first Business Day immediately preceding the Closing Date) shall be made at 10:00 A.M., New York City time, on March 17, 2017, or at such time on such later date

 

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not more than three Business Days after the foregoing date as the Representatives shall designate, which date and time may be postponed by agreement between the Representatives and the Company or as provided in Section 9 hereof (each such date and time of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of the Securities shall be made to the Representatives for the respective accounts of the several Initial Purchasers against payment by the several Initial Purchasers through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to the account specified by the Company. Delivery of the Securities shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.

(b)    If the option provided for in Section 2(b) hereof is exercised after the first Business Day immediately preceding the Closing Date, the Company will deliver the Option Securities (at the expense of the Company) to the Representatives on the date specified by the Representatives (which shall be within three Business Days after exercise of said option) for the respective accounts of the several Initial Purchasers, against payment by the several Initial Purchasers through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to the account specified by the Company. If settlement for the Option Securities occurs after the Closing Date, the Company will deliver to the Representatives on the settlement date for the Option Securities, and the obligation of the Initial Purchasers to purchase the Option Securities shall be conditioned upon receipt of, supplemental opinions, certificates and letters confirming as of such date the opinions, certificates and letters delivered on the Closing Date pursuant to Section 6 hereof.

4.     Offering by Initial Purchasers . (a) Each Initial Purchaser acknowledges that the Securities and any shares of Common Stock issuable upon conversion thereof have not been and will not be registered under the Act and may not be offered or sold within the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Act.

(b)    Each Initial Purchaser, severally and not jointly, represents and warrants to and agrees with the Company that:

(i)    it has not offered or sold, and will not offer or sell, any Securities within the United States as part of their distribution at any time except to those it reasonably believes to be “qualified institutional buyers” (as defined in Rule 144A under the Act);

(ii)    neither it nor any person acting on its behalf has made or will make offers or sales of the Securities in the United States by means of any form of general solicitation or general advertising (within the meaning of Regulation D) in the United States;

(iii)    in connection with each sale pursuant to Section 4(b)(i), it has taken or will take reasonable steps to ensure that the purchaser of such Securities is aware that such sale may be made in reliance on Rule 144A;

 

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(iv)    it is an “accredited investor” (as defined in Rule 501(a) of Regulation D);

5.     Agreements . The Company agrees with each Initial Purchaser that:

(a)    The Company will furnish to each Initial Purchaser and to counsel for the Initial Purchasers, without charge, during the period referred to in Section 5(c) below, as many copies of the materials contained in the Disclosure Package and the Final Memorandum and any amendments and supplements thereto as they may reasonably request.

(b)    The Company will not amend or supplement the Disclosure Package or the Final Memorandum, other than by filing documents under the Exchange Act that are incorporated by reference therein, without the prior written consent of the Representatives; provided , however , that prior to the completion of the distribution of the Securities by the Initial Purchasers (as determined by the Initial Purchasers), the Company will not file any document under the Exchange Act that is incorporated by reference in the Disclosure Package or the Final Memorandum unless, prior to such proposed filing, the Company has furnished the Representatives with a copy of such document for their review and the Representatives have not reasonably objected to the filing of such document. The Company will promptly advise the Representatives when any document filed under the Exchange Act that is incorporated by reference in the Disclosure Package or the Final Memorandum shall have been filed with the Commission.

(c)    If at any time prior to the completion of the sale of the Securities by the Initial Purchasers (as determined by the Representatives), any event occurs as a result of which the Disclosure Package or the Final Memorandum, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading, or if it should be necessary to amend or supplement the Disclosure Package or the Final Memorandum to comply with applicable law, the Company will promptly (i) notify the Representatives of any such event; (ii) subject to the requirements of Section 5(b), prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any supplemented or amended Disclosure Package or Final Memorandum to the several Initial Purchasers and counsel for the Initial Purchasers without charge in such quantities as they may reasonably request.

(d)    Without the prior written consent of the Representatives, the Company has not given and will not give to any prospective purchaser of the Securities any written information concerning the offering of the Securities other than materials contained in the Disclosure Package, the Final Memorandum or any other offering materials prepared by or with the prior written consent of the Representatives.

(e)    The Company will arrange, if necessary, for the qualification of the Securities for sale by the Initial Purchasers under the laws of such jurisdictions as the Representatives may designate and will maintain such qualifications in effect so long as required for the sale of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to

 

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service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject. The Company will promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

(f)    The Company will not, and will not permit any of its controlled Affiliates to, resell any Securities or shares of Common Stock issued upon conversion thereof that have been acquired by any of them.

(g)    None of the Company, its Affiliates, or any person acting on its or their behalf will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Securities or Common Stock issuable upon conversion thereof under the Act.

(h)    Unless the Securities have been registered under the Act, any information provided by the Company, its Affiliates or any person acting on its or their behalf to publishers of publicly available databases about the terms of the Securities shall include a statement that the Securities have not been registered under the Act and are subject to restrictions under Rule 144A under the Act.

(i)    None of the Company, its Affiliates, or any person acting on its or their behalf will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Securities in the United States.

(j)    For so long as any of the Securities or the Common Stock issuable upon the conversion thereof are “restricted securities” within the meaning of Rule 144(a)(3) under the Act, the Company will, during any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, provide to each holder of such restricted securities and to each prospective purchaser (as designated by such holder) of such restricted securities, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Act. This covenant is intended to be for the benefit of the holders, and the prospective purchasers designated by such holders, from time to time of such restricted securities.

(k)    The Company will cooperate with the Representatives and use its commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.

(l)    The Company will reserve and keep available at all times, free of pre-emptive rights, the Maximum Number of Shares.

(m)    The Company will use its commercially reasonable efforts to effect and maintain the listing of the Maximum Number of Shares on The Nasdaq Global Select Market (“Nasdaq”) on or prior to the Closing Date.

 

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(n)    Each of the Securities and the shares of Common Stock issuable upon conversion thereof will bear, to the extent applicable, the legend contained in “Transfer Restrictions” in the Preliminary Memorandum and the Final Offering Memorandum for the time period and upon the other terms stated therein.

(o)    The Company will not for a period of 60 days following the Execution Time, without the prior written consent of Morgan Stanley & Co. LLC, directly or indirectly, offer, sell, contract to sell, pledge, otherwise dispose of, enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any Affiliate of the Company or any person in privity with the Company or any Affiliate of the Company of, file (or participate in the filing of) a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect of, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for, shares of capital stock of the Company (other than the Securities), or publicly announce an intention to effect any such transaction; provided , however , that the Company may (i) issue and sell Common Stock or securities convertible into or exchangeable for Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company described in the Disclosure Package and the Final Memorandum and in effect at the Execution Time, (ii) issue Common Stock issuable upon the conversion of the Securities or other securities or the exercise of warrants outstanding at the Execution Time and described in the Disclosure Package and the Final Memorandum and (iii) do any of the foregoing in connection with the acquisition (whether through merger, share purchase, share exchange or otherwise) of a company, division, business or assets or strategic transactions, provided that every recipient of any such securities described in this clause (iii) (and every party that will be entitled to receive such securities upon closing of the applicable transaction or otherwise has rights with respect to such securities) agrees in writing to be subject to this paragraph for the remainder of the 60 day period, provided that in the case of clause (iii), the number of shares of Common Stock issued or issuable pursuant to such clause shall not, in the aggregate, exceed 5% of the shares of Common Stock outstanding on the date hereof.

(p)    The Company will not take, directly or indirectly, any action designed to or that has constituted, or that might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.

(q)    Between the date hereof and the Closing Date, the Company will not do or authorize any act or thing that would result in an adjustment of the conversion price of the Securities.

(r)    The Company will, for a period of twelve months following the Execution Time, furnish to the Representatives (i) all reports or other communications (financial or other) generally made available to stockholders, and deliver such reports and communications to the Representatives as soon as they are available, unless such documents are furnished to or filed with the Commission or any securities exchange on which any class of securities of the

 

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Company is listed and generally made available to the public and (ii) such additional information concerning the business and financial condition of the Company as the Representatives may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to stockholders).

(s)    The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes-Oxley Act, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes-Oxley Act.

(t)    The Company will prepare a final term sheet, containing solely a description of the Securities and the offering thereof, in the form approved by you and attached as Schedule II hereto.

(u)    The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation of the Indenture, the issuance of the Securities, the fees of the Trustee and the issuance of the Common Stock upon conversion of the Securities, including up to the Maximum Amount of Shares; (ii) the preparation, printing or reproduction of the materials contained in the Disclosure Package and the Final Memorandum and each amendment or supplement to either of them; (iii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the materials contained in the Disclosure Package and the Final Memorandum, and all amendments or supplements to either of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iv) the preparation, printing, authentication, issuance and delivery of the Securities; (v) any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (vi) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (vii) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states and any other jurisdictions specified pursuant to Section 5(e) (including filing fees and the reasonable fees and expenses of counsel for the Initial Purchasers relating to such registration and qualification); (viii) admitting the Securities for clearance and settlement through The Depository Trust Company; (ix) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (x) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder.

6.     Conditions to the Obligations of the Initial Purchasers . The obligations of the Initial Purchasers to purchase and pay for the Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties of the Company contained herein at the Execution Time, the Closing Date (as though made on such Closing Date) and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the

 

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performance by the Company of its obligations hereunder and to the following additional conditions precedent:

(a)    The Company shall have requested and caused Wilson Sonsini Goodrich & Rosati, counsel for the Company, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Initial Purchasers, to the effect of the substantive paragraphs set forth on Annex B hereto.

(b)    The Representatives shall have received from Davis Polk & Wardwell LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Initial Purchasers, with respect to the issuance and sale of the Securities, the Indenture, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.

(c)    The Company shall have furnished to the Representatives a certificate of the Company, signed by (x) the Chairman of the Board or the Chief Executive Officer and (y) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Disclosure Package and the Final Memorandum and any amendments or supplements thereto, and this Agreement and that:

(i)    the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and

(ii)    since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto).

(d)    [Reserved].

(e)    At the Execution Time and at the Closing Date, the Company shall have requested and caused each of BDO USA, LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in each case in form and substance satisfactory to the Representatives.

(f)    On the date hereof, the Representatives shall have received a written certificate executed by the Chief Financial Officer of the Company, the form of which is attached as Schedule III hereto.

 

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(g)    Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto).

(h)    Subsequent to the Execution Time and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the debt securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.

(i)    The Securities shall be eligible for clearance and settlement through The Depository Trust Company.

(j)    Prior to the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from the executive officers and directors of the Company set forth on Annex A and addressed to the Initial Purchasers.

(k)    The Company shall have caused the Maximum Number of Shares to be approved for listing, subject to issuance, on Nasdaq.

(l)    Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.

If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.

The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Initial Purchasers, at 450 Lexington Avenue, New York, New York 10017, on the Closing Date.

 

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7.     Reimbursement of Expenses . If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Initial Purchasers set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Initial Purchasers, the Company will reimburse the Initial Purchasers severally on demand for all expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.

8.     Indemnification and Contribution . (a) The Company agrees to indemnify and hold harmless each Initial Purchaser, the directors, officers, employees, Affiliates and agents of each Initial Purchaser and each person who controls any Initial Purchaser within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other U.S. federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Memorandum, the Final Memorandum, any Issuer Written Information or any other written information used by or on behalf of the Company in connection with the offer or sale of the Securities, or in any amendment or supplement thereto or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; provided , however , that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made in the Preliminary Memorandum, the Final Memorandum, or in any amendment thereof or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Initial Purchaser through the Representatives specifically for inclusion therein it being understood and agreed that the only such information furnished by or on behalf of any Initial Purchaser consists of the information described as such in Subsection (b) below. This indemnity agreement will be in addition to any liability that the Company may otherwise have.

(b)    Each Initial Purchaser severally, and not jointly, agrees to indemnify and hold harmless the Company, each of its directors, each of its officers, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity to each Initial Purchaser, but only with reference to information furnished to the Company by or on behalf of such Initial Purchaser through the Representatives specifically for inclusion in the Preliminary Memorandum, the Final Memorandum or in any amendment or supplement thereto. This indemnity agreement will be in addition to any liability that any Initial Purchaser may otherwise have. The Company acknowledges that the statements set forth under the heading “Plan of Distribution” in the fourth, twelfth and fourteenth paragraph in the Preliminary Memorandum and the Final Memorandum constitute the only information furnished in writing by or on behalf of the Initial Purchasers for inclusion in the Preliminary Memorandum, the Final Memorandum or in any amendment or supplement thereto.

 

19


(c)    Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel (including local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, retained by the indemnified party or parties except as set forth below); provided , however , that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel (including local counsel) to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party.

(d)    In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Initial Purchasers severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending any loss, claim, damage, liability or action) (collectively “Losses”) to which the Company and one or more of the Initial Purchasers may be subject in such proportion as is appropriate to reflect the relative benefits received by the

 

20


Company on the one hand and by the Initial Purchasers on the other from the offering of the Securities; provided , however , that in no case shall any Initial Purchaser be responsible for any amount in excess of the purchase discount or commission applicable to the Securities purchased by such Initial Purchaser hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Initial Purchasers severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Initial Purchasers on the other in connection with the statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Initial Purchasers shall be deemed to be equal to the total purchase discounts and commissions. Relative fault shall be determined by reference to, among other things, whether any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Initial Purchasers on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Initial Purchasers agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation that does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Initial Purchaser within the meaning of either the Act or the Exchange Act and each director, officer, employee, Affiliate and agent of an Initial Purchaser shall have the same rights to contribution as such Initial Purchaser, and each person who controls the Company within the meaning of either the Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d).

9.     Default by an Initial Purchaser . If any one or more Initial Purchasers shall fail to purchase and pay for any of the Securities agreed to be purchased by such Initial Purchaser hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Initial Purchasers shall be obligated severally to take up and pay for (in the respective proportions which the principal amount of Securities set forth opposite their names in Schedule I hereto bears to the aggregate principal amount of Securities set forth opposite the names of all the remaining Initial Purchasers) the Securities which the defaulting Initial Purchaser or Initial Purchasers agreed but failed to purchase; provided , however , that in the event that the aggregate principal amount of Securities which the defaulting Initial Purchaser or Initial Purchasers agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in Schedule I hereto, the remaining Initial Purchasers shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Initial Purchasers do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Initial Purchaser or the Company. In the event of a default by any Initial Purchaser as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the required changes in the Final

 

21


Memorandum or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Initial Purchaser of its liability, if any, to the Company or any nondefaulting Initial Purchaser for damages occasioned by its default hereunder.

10.     Termination . This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior to delivery of, and payment for, the Securities, if at any time prior to such delivery and payment (i) trading in the Company’s Common Stock shall have been suspended by the Commission or the Nasdaq Global Select Market or trading in securities generally on the Nasdaq Global Select Market or the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on any such exchanges; (ii) there shall have occurred any material disruption in commercial banking or securities settlement or clearance services in the United States the effect of which is such as to make it, in the sole judgment of the Representatives, impractical to proceed with the offering or delivery of the Securities as contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto); (iii) a banking moratorium shall have been declared either by U.S. federal or New York State authorities or by the authorities of Massachusetts; or (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical to proceed with the offering or delivery of the Securities as contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto).

11.     Representations and Indemnities to Survive . The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Initial Purchasers set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Initial Purchasers or the Company or any of the indemnified persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.

12.     Notices . All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to Morgan Stanley & Co. LLC, 1585 Broadway, New York, NY 10036, Attention: Convertible Debt Syndicate Desk, with a copy to the Legal Department, and Barclays Capital Inc., 745 Seventh Avenue, New York, NY 10019, Attention: Syndicate Registration, Facsimile: (646) 834-8133; or, if sent to the Company, will be mailed, delivered or telefaxed to 408-317-0310 and confirmed to it at 1 Wayside Road, Burlington, Massachusetts 01803, attention of the Legal Department with a copy to Wilson, Sonsini, Goodrich & Rosati, 1700 K Street, NW Fifth Floor, Washington, DC 20006, telefax 212-999-5899, Attention: Robert Sanchez.

13.     Successors . This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the indemnified persons referred to in Section 8 hereof and their respective successors, and, except as expressly set forth in Section 5(j) hereof, no other person will have any right or obligation hereunder.

 

22


14.     Jurisdiction . The Company agrees that any suit, action or proceeding against the Company brought by any Initial Purchaser, the directors, officers, employees and agents of any Initial Purchaser, or by any person who controls any Initial Purchaser, arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any State or U.S. federal court in The City of New York and County of New York, and waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Company hereby appoints CT Corporation, as its authorized agent (the “Authorized Agent”) upon whom process may be served in any suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated herein that may be instituted in any State or U.S. federal court in The City of New York and County of New York, by any Initial Purchaser, the directors, officers, employees, Affiliates and agents of any Initial Purchaser, or by any person who controls any Initial Purchaser, and expressly accepts the non-exclusive jurisdiction of any such court in respect of any such suit, action or proceeding. The Company hereby represents and warrants that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Company agrees to take any and all action, including the filing of any and all documents that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Company. Notwithstanding the foregoing, any action arising out of or based upon this Agreement may be instituted by any Initial Purchaser, the directors, officers, employees, Affiliates and agents of any Initial Purchaser, or by any person who controls any Initial Purchaser, in any court of competent jurisdiction in Delaware.

15.     Integration . This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Initial Purchasers, or any of them, with respect to the subject matter hereof.

16.     Applicable Law . This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.

17.     Waiver of Jury Trial . The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

18.     No Fiduciary Duty . The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the Initial Purchasers and any Affiliate through which it may be acting, on the other, (b) the Initial Purchasers are acting as principal and not as an agent or fiduciary of the Company and (c) the Company’s engagement of the Initial Purchasers in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether any of the Initial Purchasers has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that the Initial Purchasers have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company in connection with such transaction or the process leading thereto.

 

23


19.     Currency . Each reference in this Agreement to U.S. dollars (the “relevant currency”), including by use of the symbol “$”, is of the essence. To the fullest extent permitted by law, the obligation of the Company in respect of any amount due under this Agreement will, notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the relevant currency that the party entitled to receive such payment may, in accordance with its normal procedures, purchase with the sum paid in such other currency (after any premium and costs of exchange) on the Business Day immediately following the day on which such party receives such payment. If the amount in the relevant currency that may be so purchased for any reason falls short of the amount originally due, the Company will pay such additional amounts, in the relevant currency, as may be necessary to compensate for the shortfall. Any obligation of the Company not discharged by such payment will, to the fullest extent permitted by applicable law, be due as a separate and independent obligation and, until discharged as provided herein, will continue in full force and effect.

20.     Waiver of Immunity . To the extent that the Company has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Company hereby irrevocably waives and agrees not to plead or claim such immunity in respect of its obligations under this Agreement.

21.     Waiver of Tax Confidentiality . Notwithstanding anything herein to the contrary, purchasers of the Securities (and each employee, representative or other agent of a purchaser) may disclose to any and all persons, without limitation of any kind, the U.S. tax treatment and U.S. tax structure of any transaction contemplated herein and all materials of any kind (including opinions or other tax analyses) that are provided to the purchasers of the Securities relating to such U.S. tax treatment and U.S. tax structure, other than any information for which nondisclosure is reasonably necessary in order to comply with applicable securities laws.

22.     Counterparts . This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.

23.     Headings . The section headings used herein are for convenience only and shall not affect the construction hereof.

24.     Interpretation . For purposes of this agreement, any statement as to any person acting on behalf of the Company or its Affiliates shall be deemed to not include the Initial Purchasers or any person acting on their behalf.

25.     Definitions . The terms that follow, when used in this Agreement, shall have the meanings indicated.

 

24


“Act” shall mean the U.S. Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.

“Affiliate” shall have the meaning specified in Rule 501(b) of Regulation D.

“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York.

“Commission” shall mean the Securities and Exchange Commission.

“Disclosure Package” shall mean (i) the Preliminary Memorandum, as amended or supplemented at the Execution Time, (ii) the final term sheet prepared pursuant to Section 5(s) hereto and in the form attached as Schedule II hereto and (iii) any Issuer Written Information.

“Exchange Act” shall mean the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.

“Execution Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.

“Investment Company Act” shall mean the U.S. Investment Company Act of 1940, as amended, and the rules and regulations of the Commission promulgated thereunder.

“Issuer Written Information” shall mean any writings in addition to the Preliminary Memorandum that the parties expressly agree in writing to treat as part of the Disclosure Package.

“Regulation D” shall mean Regulation D under the Act.

“Regulation S” shall mean Regulation S under the Act.

“Regulation S-X” shall mean Regulation S-X under the Act.

“Trust Indenture Act” shall mean the U.S. Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

25


If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company and the several Initial Purchasers.

 

Very truly yours,
Nuance Communications, Inc.
By:  

/s/ Daniel D. Tempesta

  Name:   Daniel D. Tempesta
  Title:   Executive Vice President and Chief Financial Officer

 

26


The foregoing Agreement is hereby confirmed and accepted as of the date first above written.

Morgan Stanley & Co. LLC
By:  

/s/ David Oakes

  Name:   David Oakes
  Title:   Managing Director

Acting on behalf of itself and the several Initial Purchasers named in Schedule I hereto.

 

27


The foregoing Agreement is hereby confirmed and accepted as of the date first above written.

Barclays Capital Inc.
By:  

/s/ David Levin

  Name:   David Levin
  Title:   Managing Director

Acting on behalf of itself and the

several Initial Purchasers named

in Schedule I hereto.

 

28


SCHEDULE I

 

Initial Purchasers

   Principal Amount
of Firm
Securities to be
Purchased
 

Morgan Stanley & Co. LLC

   U.S.$ 175,000,000  

Barclays Capital Inc.

   U.S.$ 105,000,000  

Deutsche Bank Securities Inc.

   U.S.$ 35,000,000  

RBC Capital Markets, LLC

   U.S.$ 35,000,000  
  

 

 

 

Total

   U.S.$ 350,000,000  
  

 

 

 

 

Sch-I-1


SCHEDULE II

 

PRICING TERM SHEET    Strictly Confidential
Dated March 13, 2017   

Nuance Communications, Inc.

$350,000,000

1.25% Senior Convertible Notes due 2025

The information in this pricing term sheet (this “Pricing Term Sheet”) supplements Nuance Communications, Inc.’s preliminary offering memorandum, dated March 13, 2017 (the “Preliminary Offering Memorandum”), and supersedes the information in the Preliminary Offering Memorandum only to the extent inconsistent with the information in the Preliminary Offering Memorandum. In all other respects, this Pricing Term Sheet is qualified in its entirety by reference to the Preliminary Offering Memorandum, including all other documents incorporated by reference therein. Terms used herein but not defined herein shall have the respective meanings as set forth in the Preliminary Offering Memorandum. All references to dollar amounts are references to U.S. dollars.

 

Issuer:   Nuance Communications, Inc., a Delaware corporation.
Ticker / Exchange for Common Stock:   NUAN / The NASDAQ Global Select Market (“NASDAQ”).
Title of Securities:   1.25% Senior Convertible Notes due 2025 (the “Notes”).
Aggregate Principal Amount Offered:   $350,000,000 (or $410,000,000 if the initial purchasers exercise their over-allotment option to purchase up to an additional $60,000,000 principal amount of the Notes in full).
Trade Date:   March 14, 2017.
Expected Settlement Date:   March 17, 2017.
Offering Price:   Each Note will be issued at a price of 100% of its principal amount plus accrued interest, if any, from March 17, 2017.
Maturity Date:   April 1, 2025, unless earlier converted or repurchased.
Interest Rate:   1.25% per year. Interest will accrue from March 17, 2017, and will be payable in cash in arrears on April 1 and October 1 of each year, beginning October 1, 2017.
  The Issuer will also pay additional interest, if any, at its election as the sole remedy relating to the failure to comply with reporting obligations as described in the Preliminary Offering Memorandum under “Description of the Notes — Events of Default; Notice and Waiver” and under the “Description of the Notes — No Registration Rights; Additional Interest.”
NASDAQ Last Reported Sale Price on March 13, 2017:   $17.09 per share of the Issuer’s common stock.
Conversion Premium:   Approximately 30% above the NASDAQ Last Reported Sale Price on March 13, 2017.
Initial Conversion Price:   Approximately $22.22 per share of the Issuer’s common stock.

 

Sch-II-1


Initial Conversion Rate:    45.0106 shares of the Issuer’s common stock per $1,000 principal amount of Notes.
Use of Proceeds:    The Issuer estimates that the net proceeds from the offering will be approximately $343.5 million, or $402.5 million if the initial purchasers exercise their over-allotment option in full. The Issuer intends to use $99.1 million of net proceeds from the offering to fund the repurchase of shares of its common stock pursuant to transactions negotiated with institutional investors concurrently with the pricing of the offering. The Issuer intends to use the remaining net proceeds, together with cash on hand, to repurchase, redeem, retire or otherwise repay all of its outstanding 2.75% Senior Convertible Debentures due 2031, including the repurchase of $17.8 million in aggregate principal amount of its outstanding 2.75% Senior Convertible Debentures due 2031 concurrently with this offering. See “Use of Proceeds” in the Preliminary Offering Memorandum.
Joint Book-Running Managers:    Morgan Stanley & Co. LLC
   Barclays Capital Inc.
Co-Lead Managers:    Deutsche Bank Securities Inc.
   RBC Capital Markets, LLC
CUSIP Number:    67020Y AM2
ISIN:    US67020YAM21
Adjustment to Conversion Rate Upon a   
Non-Stock Change of Control:    The following table sets forth the number of additional shares per $1,000 principal amount of Notes by which the conversion rate shall be increased during the non-stock change of control conversion observation period based on the effective date and stock price for the non-stock change of control (as such terms are defined in the Preliminary Offering Memorandum):

 

     Stock Price  

Effective Date

   $17.09      $20.00      $22.22      $25.00      $30.00      $40.00      $55.00      $75.00      $100.00      $125.00      $160.00  

March 17, 2017

     13.5032        10.1055        8.2673        6.5616        4.5323        2.4503        1.1735        0.5167        0.1936        0.0612        0.0000  

April 1, 2018

     13.5032        9.8265        7.9455        6.2196        4.2023        2.1953        1.0165        0.4343        0.1561        0.0459        0.0000  

April 1, 2019

     13.5032        9.5875        7.6427        5.8824        3.8677        1.9375        0.8638        0.3581        0.1232        0.0326        0.0000  

April 1, 2020

     13.5032        9.3500        7.3200        5.5128        3.4983        1.6625        0.7105        0.2869        0.0950        0.0221        0.0000  

April 1, 2021

     13.5032        9.0485        6.9131        5.0528        3.0543        1.3543        0.5531        0.2193        0.0701        0.0144        0.0000  

April 1, 2022

     13.5032        8.6340        6.3690        4.4560        2.5070        1.0100        0.3951        0.1563        0.0476        0.0064        0.0000  

April 1, 2023

     13.5032        8.0010        5.5666        3.6132        1.8010        0.6340        0.2447        0.1000        0.0290        0.0010        0.0000  

April 1, 2024

     13.5032        6.9230        4.2160        2.2952        0.8873        0.2675        0.1135        0.0497        0.0138        0.0000        0.0000  

April 1, 2025

     13.5032        4.9895        0.0000        0.0000        0.0000        0.0000        0.0000        0.0000        0.0000        0.0000        0.0000  

The exact stock prices and effective dates may not be set forth in the table above, in which case

 

    if the stock price is between two stock price amounts on the table or the effective date is between two dates on the table, the number of additional shares will be determined by straight-line interpolation between the number of additional shares set forth for the higher and lower stock price amounts and the two dates, as applicable, based on a 365-day year;

 

    if the stock price is in excess of $160.00 per share (subject to adjustment), no additional shares will be issued upon conversion;

 

    if the stock price is less than $17.09 per share (subject to adjustment), no additional shares will be issued upon conversion.

 

Sch-II-2


Notwithstanding the foregoing, in no event will the conversion rate exceed 58.5137 per $1,000 principal amount of the Notes, subject to adjustments in the same manner as the conversion rate.

The Issuer’s obligation to deliver the additional shares could be considered a penalty, in which case the enforceability of the obligation to deliver additional shares would be subject to general principles of reasonableness of economic remedies.

 

Sch-II-3


Capitalization

The following table sets forth Nuance’s capitalization as of December 31, 2016

 

    on an actual basis; and

 

    and on a pro forma as adjusted basis to reflect (i) the completion of this offering (assuming that the initial purchasers do not exercise their over-allotment option), (ii) the use of proceeds, together with cash on hand, as described in the “Use of Proceeds” section of the Preliminary Offering Memorandum for the repurchase of $99.1 million of shares of common stock and the repurchase of all of Nuance’s outstanding 2031 Debentures, and (iii) Nuance’s redemption in January 2017 of $600.0 million in aggregate principal amount of our 2020 Senior Notes.

This table should be read in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” contained in Nuance’s Annual Report on Form 10-K for the fiscal year ended September 30, 2016 and in our Quarterly Report on Form 10-Q for the fiscal quarter ended December 31, 2016, and Nuance’s financial statements and related notes thereto, all of which are incorporated by reference into the Preliminary Offering Memorandum.

 

    As of December 31, 2016  
    Actual     As Adjusted (1)  
    (in thousands)  

Cash and cash equivalents and marketable securities

  $ 1,137,465     $ 370,227  
 

 

 

   

 

 

 

Current portion of long-term debt

  $ 977,458     $ 0  
 

 

 

   

 

 

 

Long-term debt (less current portion)

   

Deferred issuance costs related to our Revolving Credit Facility

    (1,423     (1,423

5.375% Senior Notes due 2020, net of unamortized premium of  $2.8 million and deferred issuance costs of $6.9 million

    448,272       448,272  

5.625% Senior Notes due 2026, net of deferred issuance costs of $6.5 million

    493,471       493,471  

6.000% Senior Notes due 2024, net of deferred issuance costs of $2.3 million

    297,678       297,678  

1.00% Senior Convertible Debentures due 2035, net of unamortized discount of $158.0 million and deferred issuance costs of $7.9 million

    510,589       510,589  

2.75% Senior Convertible Debentures due 2031, net of unamortized discount of $14.9 million and deferred issuance costs of $0.9 million

    —         —    

1.50% Senior Convertible Debentures due 2035, net of unamortized discount of $49.5 million and deferred issuance costs of $1.8 million

    212,643       212,643  

1.25% Senior Convertible Notes offered hereby (2)

    —         243,219  
 

 

 

   

 

 

 

Total stockholders’ equity

    1,925,704       1,892,705  
 

 

 

   

 

 

 

Total capitalization

  $ 3,886,934     $ 4,097,154  
 

 

 

   

 

 

 

 

(1) For purposes of the “As Adjusted” column, the Issuer has assumed that its net proceeds from this offering will be approximately $343.5 million after deducting the initial purchasers’ discounts and commissions and estimated offering expenses payable by the Issuer and that such proceeds will be used by the Issuer for the repurchase of (i) 5,797,365 shares of common stock for $99.1 million in negotiated transactions with institutional investors in the offering, subject to availability, (ii) $17.8 million in aggregate principal amount of 2031 Debentures concurrently with this offering for $17.9 million, and (iii) the remaining outstanding 2031 Debentures pursuant to the rights of the holders of such Debentures to require the repurchase of such Debentures on November 1, 2017, using approximately $226.5 million of net proceeds, together with approximately $151.2 million of available cash on hand.
(2)

In accordance with ASC 470-20, convertible debt that may be wholly or partially settled in cash is required to be separated into a liability and an equity component, such that interest expense reflects the Issuer’s non-convertible debt interest rate. Upon issuance, a debt discount will be recognized as a decrease

 

Sch-II-4


  in debt and an increase in equity. The debt component will accrete up to the principal amount over the expected term of the debt. ASC 470-20 does not affect the actual amount that the Issuer is required to repay, and the amount shown in the table above for the Notes is the aggregate principal amount of the Notes and does not reflect any debt discount, fees and expenses that the Issuer will be required to recognize.

This communication is intended for the sole use of the person to whom it is provided by the sender. This material is confidential and is for your information only and is not intended to be used by anyone other than you. This information does not purport to be a complete description of the Notes or the offering.

 

 

This communication shall not constitute an offer to sell or the solicitation of an offer to buy the Notes, or any shares of the Issuer’s common stock issuable upon conversion of the Notes, nor shall there be any sale of the Notes, or any such shares of the Issuer’s common stock, in any state in which such solicitation or sale would be unlawful prior to registration or qualification of the Notes or such common stock under the laws of any such jurisdiction.

The Notes and any shares of common stock issuable upon conversion of the Notes have not been, and will not be, registered under the Securities Act of 1933, as amended (the “Securities Act”) or any state securities laws, and may only be sold to qualified institutional buyers pursuant to Rule 144A of the Securities Act or pursuant to another applicable exemption from registration. The Notes are not transferable except in accordance with the restrictions described under “Transfer Restrictions” in the Preliminary Offering Memorandum.

A copy of the Preliminary Offering Memorandum for the offering of the Notes may be obtained by contacting Morgan Stanley & Co. LLC, Attention: Prospectus Department, 180 Varick Street, 2nd Floor, New York, NY 10014 or Barclays Capital Inc., c/o Broadridge Financial Solutions, 1155 Long Island Avenue, Edgewood, NY 11717, by telephone at 888-603-5847, or by emailing Barclaysprospectus@broadridge.com .

ANY DISCLAIMER OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.

 

Sch-II-5


EXHIBIT A

March [●], 2017            

Morgan Stanley & Co. LLC

Barclays Capital Inc.

As Representatives of the several Initial Purchasers

c/o

Morgan Stanley & Co. LLC

1585 Broadway

New York, NY 10036

Barclays Capital Inc.

745 Seventh Avenue

New York, NY 10019

Ladies and Gentlemen:

This letter is being delivered to you in connection with a proposed Purchase Agreement (the “Purchase Agreement”), between Nuance Communications, Inc., a Delaware corporation (the “Company”) and you as representatives of a group of Initial Purchasers named therein, relating to an offering of Senior Convertible Notes due 2025, which will be convertible into common stock, $0.001 par value (the “Common Stock”), of the Company.

In order to induce you and the other Initial Purchasers to enter into the Purchase Agreement, the undersigned will not, without the prior written consent of Morgan Stanley & Co. LLC, directly or indirectly, offer, sell, contract to sell, pledge or otherwise dispose of, enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned of, or exercise any right to demand the filing by the Company of (or participate in the filing of) a registration statement with the U.S. Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the U.S. Securities and Exchange Commission promulgated thereunder in respect of, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period of 60 days after the date of the Purchase Agreement (the “Lock-Up Period”).

 

A-1


Notwithstanding anything herein to the contrary, the undersigned may (i) make transfers as a bona fide gift or gifts or pledge, (ii) make transfers either during the undersigned’s lifetime or on death by will or intestacy to the undersigned’s immediate family or to a trust, the beneficiaries of which are the undersigned or a member or members of the undersigned’s immediate family, (iii) [reserved], (iv) transfer shares of capital stock of the Company acquired in the open market on or after the date of the Purchase Agreement, (v) make transfers pursuant to an acquisition of the Company by another person, group of affiliated persons or entity by means of merger or consolidation or any transaction or series of related transactions resulting in the exchange of the outstanding shares of the Company for securities or consideration issued, or caused to be issued, by the acquiring person, group of affiliated persons or entity, (vi) sell shares of capital stock pursuant to a trading plan that complies with Rule 10b5-1 under the Exchange Act (a “10b5-1 Trading Plan”) in existence as of the date hereof, (vii) establish a 10b5-1 Trading Plan, (viii) dispose of shares of restricted stock to the Company to satisfy tax withholding obligations or upon termination of employment with the Company, or (ix) transfer shares of capital stock of the Company for tax planning purposes; provided that, in the case of clauses, (i), (ii) and (iii) that the recipient of such gift, pledge, transfer or distribution thereof agrees to be bound by the restrictions set forth herein; and provided that, in the case of clause (iv), (a) such sales are not required to be reported in any public report or filing with the Securities and Exchange Commission (excluding a Form 3 or 5 or Schedule 13G or 13D (or amendments thereof) under the Securities Exchange Act of 1934) during the Lock-Up Period and (b) the undersigned does not otherwise voluntarily effect any public filing or report regarding such sales; and provided that, in the case of clause (vii) the restrictions contained in this agreement shall apply in full force to sales pursuant to a 10b5-1 Trading Plan that was established after the date hereof; and provided that, in the case of clause (ix), such shares so transferred do not exceed 5,000 shares.

Morgan Stanley & Co. LLC may release, in their sole discretion, any of the securities subject to this lockup agreement at any time without notice.

If for any reason the Purchase Agreement shall be terminated prior to the Closing Date (as defined in the Purchase Agreement), the agreement set forth above shall likewise be terminated.

 

Very truly yours,
By:  

 

  Name:
  Title:

 

A-2


ANNEX A

Executive Officers and Directors

 

1. Paul A. Ricci
2. Robert J. Frankenberg
3. William H. Janeway
4. Mark R. Laret
5. Katharine A. Martin
6. Philip J. Quigley
7. Robert Finocchio
8. A. Bruce Bowden
9. Robert C. Schassler
10. Kenneth M. Siegel
11. Daniel D. Tempesta

 

A-1


ANNEX B

Form of Wilson Sonsini Goodrich Rosati Opinion Letter

 

  1. The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware with corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Final Offering Memorandum.

 

  2. The Company is qualified to do business in the Commonwealth of Massachusetts.

 

  3. The Company has all requisite corporate power to execute and deliver the Purchase Agreement and the Securities and to perform its obligations under the terms of the Purchase Agreement and the Securities.

 

  4. The shares of Common Stock initially issuable upon conversion of the Securities, including any shares issuable pursuant an increase in the conversion rate as a result of a “non-stock change of control” (as defined in the Indenture) (the “Conversion Shares”), assuming such shares have been duly authorized and reserved for issuance upon such conversion and, when issued and delivered in accordance with the provisions of the Securities and the Indenture, will be duly and validly issued and fully paid and non-assessable. The shares of Common Stock initially issuable upon conversion of the Securities conform in all material respects to the description of the Common Stock contained in the Disclosure Package and the Final Offering Memorandum. The stockholders of the Company have no preemptive rights with respect to the issuance of the Conversion Shares under the Certificate of Incorporation, Bylaws or DGCL. The Board of Directors of the Company has duly and validly adopted resolutions reserving the Conversion Shares for issuance upon conversion of the Securities.

 

  5. The Purchase Agreement has been duly authorized, executed and delivered by the Company.

 

  6. The Securities being issued on the date hereof have been duly authorized by the Company and, when executed by the Company and authenticated by the Trustee in the manner provided for in the Indenture and issued and delivered to the Initial Purchasers against payment of the purchase price therefor specified in the Purchase Agreement in accordance with the terms of the Purchase Agreement, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and will be entitled to the benefits of the Indenture.

 

B-1


  7. The Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its respective terms.

 

  8. The issuance and sale of the Securities being delivered on the date hereof, the issuance of the Conversion Shares, if any (assuming conversion on the date hereof pursuant to the terms of the Securities) and the execution, delivery and performance by the Company of its obligations under the Indenture, the Securities, and the Purchase Agreement and the consummation of the transactions therein contemplated, except as disclosed in the risk factor entitled “We may be unable to repurchase the Notes for cash when required by the holders following a fundamental change, or pay cash upon conversion of the Notes, and our future debt may contain limitations on our ability to pay cash upon conversion or repurchase of the Notes” contained in the Disclosure Package and the Final Offering Memorandum which disclosure relates to whether the Company will be able to satisfy, at the time of any conversion of Notes or repurchase upon a Fundamental Change, the conditions for a Net Share Settlement pursuant to the proviso to Section 6.09(b)(ii) of the Credit Agreement because whether such conditions will be satisfied is unknown as of the date of this opinion, do not conflict with or did not result in a breach or violation by the Company of any of the terms or provisions of, or constitute a default under, any Reviewed Agreement, nor will such action result in any violation by the Company of (i) the Certificate of Incorporation or the Bylaws, (ii) any U.S. federal or New York or Delaware (under the DGCL) state statute, or (iii) any rule, order or regulation known to us of any U.S. federal or New York or Delaware (under the DGCL) state court or governmental agency or body having jurisdiction over the Company or any of its properties.

 

  9. No consent, approval, authorization, order, registration or qualification of or with any U.S. federal or New York or Delaware (under the DGCL) state court or governmental agency or body is required for the issue and sale of the Securities and the issuance of the Conversion Shares or the consummation by the Company of the transactions contemplated by the Purchase Agreement or the Indenture, except (i) as may be expressly contemplated by the Purchase Agreement, the Indenture or the Securities and (ii) such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Initial Purchasers and the issuance of the Conversion Shares (as to which, in each case, such counsel need not express an opinion).

 

  10. The statements set forth in the Disclosure Package and the Final Offering Memorandum under the captions “Description of the Notes” and “Description of Capital Stock” insofar as such statements purport to constitute summaries of the legal matters, documents or proceedings referred to therein, accurately summarize in all material respects the matters referred to therein.

 

B-2


  11. The Company is not required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.

 

  12. No registration of the Securities under the Act and no qualification of an indenture under the Trust Indenture Act with respect thereto, is required for the offer, sale and delivery of the Securities by the Company to the Initial Purchasers pursuant to the Purchase Agreement and the initial resale of the Securities by the Initial Purchasers in the manner contemplated by the Purchase Agreement and the Final Offering Memorandum (it being understood that no opinion is expressed as to any subsequent resale of the Securities or the shares of Common Stock issuable upon conversion of the Securities).

 

  13. The statements set forth in the Disclosure Package and the Final Offering Memorandum under the caption “Certain U.S. Federal Income Tax Considerations,” insofar as they purport to summarize matters of United States federal income tax laws or legal conclusions with respect thereto, accurately summarize in all material respects the matters referred to therein.

 

 

We participated in conferences with certain officers and other representatives of the Company, representatives of the Initial Purchasers, counsel for the Initial Purchasers and representatives of the independent certified public accountants of the Company at which the contents of the Disclosure Package, the Final Offering Memorandum and related matters were reviewed and discussed and, although such counsel does not assume any responsibility for the accuracy, completeness or fairness of the Disclosure Package or the Final Offering Memorandum (except to the extent of such counsel’s statements in paragraphs 11 and 14 above), and has made no independent check or verification thereof, on the basis of the foregoing no facts have come to such counsel’s attention that have caused it to believe that:

(i)    the documents included in the Disclosure Package, all considered together, as of 10:51 p.m. New York time on March 13, 2017 (the “Applicable Time”), contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that we are not called upon to and do not comment on the financial statements and the notes thereto and financial statement schedules and other financial data derived from such financial statements or schedules included therein or omitted therefrom), or

 

B-3


(ii)    the Final Offering Memorandum, as of its date or as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that we are not called upon to and do not comment on the financial statements and the notes thereto and financial statement schedules and other financial data derived from such financial statements or schedules included therein or omitted therefrom).

 

 

We further advise that, based on the foregoing, to our knowledge, except as set forth in the Disclosure Package and the Final Offering Memorandum, there are no pending or threatened actions, suits or proceedings against the Company or its subsidiaries that we believe would have a material adverse effect on the business, results of operations, or financial condition of the Company and its subsidiaries, taken as a whole, or would materially and adversely affect the ability of the Company to perform its obligations under the Purchase Agreement, the Indenture and the Securities.

 

B-4


SCHEDULE III

NUANCE COMMUNICATIONS, INC.

CERTIFICATE OF THE CHIEF FINANCIAL OFFICER

March [●], 2017

Reference is hereby made to the Purchase Agreement, dated March 13, 2017 (the “ Purchase Agreement ”), between Nuance Communications, Inc. (the “ Company ”) and Morgan Stanley & Co. LLC and Barclays Capital Inc. as representatives of the several initial purchasers named on Schedule I thereto (the “ Initial Purchasers ”). Capitalized terms used but not defined in this certificate have the meaning assigned to them in the Purchase Agreement.

I am responsible for the financial accounting matters of the Company and am familiar with the accounting books and records and internal controls of the Company. To assist the Initial Purchasers in conducting and documenting their investigation of the affairs of the Company, I, Daniel D. Tempesta, in my capacity as Chief Financial Officer of the Company, do hereby certify pursuant to Section 6(f) of the Purchase Agreement that after reasonable inquiry and investigation by myself or members of my staff who are responsible for the Company’s financial and accounting matters:

 

  1. The items marked with “A” on the pages attached as Exhibit A (a) are derived from the accounting books and records of the Company, (b) fairly present, in all material respects, the Company’s calculation of the aforementioned information for the periods presented and (c) are calculated substantially in accordance with the description thereof contained in footnotes contained therein.

 

Sch-III-1


IN WITNESS WHEREOF, I, Daniel D. Tempesta, have signed this certificate as of the date first written above.

 

NUANCE COMMUNICATIONS, INC.
By:  

 

  Name:   Daniel Tempesta
  Title:   Chief Financial Officer

 

[Signature Page to CFO Certificate]

Exhibit 99.1

 

LOGO

March 13, 2017

Press Release

Nuance Announces Proposed $350 Million Offering of Senior Convertible Notes due 2025

Notes to be Net Share Settled upon Conversion; Proceeds to be Used to Repurchase Nuance Shares and Retire Outstanding Debentures

BURLINGTON, Mass., March  13, 2017 – Nuance Communications, Inc. (NASDAQ: NUAN) today announced its intention to offer, subject to market conditions and other factors, $350 million aggregate principal amount of senior convertible notes due 2025 (the “Notes”) in a private placement to qualified institutional buyers pursuant to Rule 144A under the Securities Act of 1933, as amended (the “Act”). Nuance also expects to grant the initial purchasers of the Notes a 13-day option to purchase up to an additional $60 million aggregate principal amount of the Notes to cover over-allotments, if any.

The Notes will be convertible, subject to the satisfaction of certain conditions, into cash up to the principal amount of the Notes and, with respect to any excess conversion value, cash or shares of Nuance common stock or a combination thereof, at Nuance’s election. The terms of the Notes, including the interest rate, initial conversion rate and other terms, will be determined by negotiations between Nuance and the initial purchasers of the Notes.

Nuance intends to use approximately $150 million of the net proceeds from this offering to repurchase shares of Nuance’s common stock concurrently with the pricing of the Notes in negotiated transactions with institutional investors in the offering, subject to availability. Nuance intends to use the remaining net proceeds, together with cash on hand, to repurchase, redeem, retire or otherwise repay all of its outstanding 2.75% Senior Convertible Debentures due 2031.

Neither the Notes nor the shares of Nuance’s common stock issuable upon conversion of the Notes, if any, have been registered under the Act or the securities laws of any other jurisdiction and may not be offered or sold in the United States absent registration or an applicable exemption from such registration requirements.

This announcement is neither an offer to sell nor a solicitation of an offer to buy any of these securities, and shall not constitute an offer, solicitation, or sale in any jurisdiction in which such offer, solicitation, or sale is unlawful.

 

LOGO   © 2017 Nuance Communications, Inc. All rights reserved.


LOGO

March 13, 2017

About Nuance Communications, Inc.

Nuance Communications, Inc. (NASDAQ: NUAN) is a leading provider of voice and language solutions for businesses and consumers around the world. Its technologies, applications and services make the user experience more compelling by transforming the way people interact with devices and systems. Every day, millions of users and thousands of businesses experience Nuance’s proven applications. For more information, please visit www.nuance.com .

Trademark reference: Nuance and the Nuance logo are registered trademarks or trademarks of Nuance Communications, Inc. or its affiliates in the United States and/or other countries. All other trademarks referenced herein are the property of their respective owners.

###

Contact Information

For Investors

Christine Marchuska

Nuance Communications, Inc.

Tel: 781-565-5000

Email: christine.marchuska@nuance.com

For Media and Investors

Richard Mack

Nuance Communications, Inc.

Tel: 781-565-5000

Email: richard.mack@nuance.com

 

LOGO    © 2017 Nuance Communications, Inc. All rights reserved.

Exhibit 99.2

 

 

LOGO

 

Nuance Prices

$350 Million Convertible Offering

Press release

   March 13, 2017

Press Release

Nuance Prices $350 Million Offering of 1.25% Senior Convertible Notes

Proceeds to be Used to Repurchase $99.1 Million of Nuance Shares and Retire Outstanding Debentures

BURLINGTON, Mass., March  13, 2017 – Nuance Communications, Inc. (NASDAQ: NUAN) today announced the pricing of an offering of $350 million aggregate principal amount of its 1.25% senior convertible notes due 2025 (the “Notes”) in a private placement to qualified institutional buyers pursuant to Rule 144A under the Securities Act of 1933, as amended (the “Act”).

The sale of the Notes is expected to close on March 17, 2017, subject to satisfaction of customary closing conditions. Nuance has granted the initial purchasers a 13-day option to purchase up to an additional $60 million aggregate principal amount of Notes on the same terms and conditions to cover over-allotments, if any. Interest on the Notes will be paid at a rate of 1.25% per year, payable in cash semi-annually in arrears, beginning on October 1, 2017. The Notes will mature on April 1, 2025, unless earlier repurchased or converted.

Holders may require Nuance to repurchase the Notes, in cash, upon the occurrence of certain fundamental changes at a repurchase price equal to the principal amount thereof plus accrued and unpaid interest, if any.

The Notes will be convertible, subject to the satisfaction of certain conditions, into cash up to the principal amount of such Notes and, with respect to any excess conversion value, into cash or shares of Nuance common stock or a combination thereof, at Nuance’s election. The initial conversion rate per $1,000 principal amount of Notes is equivalent to 45.0106 shares of common stock, which is equivalent to a conversion price of approximately $22.22 per share of common stock, subject to adjustment in certain circumstances. This initial conversion price represents a premium of approximately 30% relative to the last reported sale price on March 13, 2017 of Nuance’s common stock of $17.09.

Upon closing, Nuance will use $99.1 million of the net proceeds from this offering to fund the repurchase of shares of Nuance’s common stock pursuant to transactions negotiated with institutional investors concurrently with the pricing of the offering. Nuance will use the remaining net proceeds, together with cash on hand, to repurchase, redeem, retire or otherwise repay all of its outstanding 2.75% Senior Convertible Debentures due 2031, including the repurchase of $17.8 million in aggregate principal amount concurrently with the offering of Notes.

The Notes will be sold to qualified institutional buyers pursuant to Rule 144A under the Act. Neither the Notes nor the shares of Nuance’s common stock issuable upon conversion of the Notes, if any, have been registered under the Act or the securities laws of any other jurisdiction and may not be offered or sold in the United States absent registration or an applicable exemption from such registration requirements.

 

LOGO    © 2017 Nuance Communications, Inc. All rights reserved.


LOGO

 

Pricing for Offering of Convertible Notes

Press release

   March 13, 2017

This announcement is neither an offer to sell nor a solicitation of an offer to buy any of these securities, and shall not constitute an offer, solicitation, or sale in any jurisdiction in which such offer, solicitation, or sale is unlawful.

###

About Nuance Communications, Inc.

Nuance Communications, Inc. (NASDAQ: NUAN) is a leading provider of voice and language solutions for businesses and consumers around the world. Its technologies, applications and services make the user experience more compelling by transforming the way people interact with devices and systems. Every day, millions of users and thousands of businesses experience Nuance’s proven applications. For more information, please visit www.nuance.com.

Trademark reference: Nuance and the Nuance logo are registered trademarks or trademarks of Nuance Communications, Inc. or its affiliates in the United States and/or other countries. All other trademarks referenced herein are the property of their respective owners.

Contact Information

For Investors

Christine Marchuska

Nuance Communications, Inc.

Tel: 781-565-5000

Email: christine.marchuska@nuance.com

For Media and Investors

Richard Mack

Nuance Communications, Inc.

Tel: 781-565-5000

Email: richard.mack@nuance.com

 

LOGO    © 2017 Nuance Communications, Inc. All rights reserved.