Exhibit 1.1
EXECUTION VERSION
SAREPTA
THERAPEUTICS, INC.
1.500% Convertible Senior Notes due 2024
Purchase Agreement
November 8, 2017
J.P. Morgan Securities LLC
Goldman Sachs & Co. LLC
As
Representatives of the
several Initial Purchasers listed
in Schedule 1 hereto
c/o J.P. Morgan Securities
LLC
383 Madison Avenue
New York, New York 10179
c/o Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
Ladies and Gentlemen:
Sarepta Therapeutics, Inc. , a Delaware corporation (the “
Company
”), proposes to issue and sell to the several initial
purchasers listed in
Schedule 1
hereto (the “
Initial Purchasers
”), for whom you are acting as representatives (the “
Representatives
”), $475,000,000 aggregate principal amount of its 1.500% Convertible Senior
Notes due 2024 (the “
Underwritten Securities
”) and, at the option of the Initial Purchasers, up to an additional $95,000,000 aggregate principal amount of its 1.500% Convertible Senior Notes due 2024 (the “
Option
Securities
”) if and to the extent that the Initial Purchasers shall have determined to exercise the option to purchase such Option Securities granted to the Initial Purchasers in
Section
2
hereof. The Underwritten
Securities and the Option Securities are herein referred to as the “
Securities
.” The Securities will be convertible into cash, shares (the “
Underlying Securities
”) of common stock of the Company, par value $0.0001
per share (the “
Common Stock
”), or a combination of cash and Underlying Securities, at the Company’s election. The Securities will be issued pursuant to an Indenture to be dated as of November 14, 2017 (the
“
Indentur
e
”), between the Company and U.S. Bank National Association, as trustee (the “
Trustee
”).
In connection with the offering of the Underwritten Securities, the Company is separately entering into capped call transactions with one or
more counterparties, which may include the Initial Purchasers or affiliates thereof (each, a “
Capped Call Counterparty
”), in each case pursuant to a capped call confirmation (each, a “
Base Capped Call
Confirmation
”), dated the date hereof, and in connection with the issuance of any Option Securities, the Company and each Capped Call Counterparty may enter into an additional capped call transaction pursuant to an
additional capped call confirmation (each, an “
Additional Capped Call Confirmation
” and,
together with the Base Capped Call Confirmations, the “
Capped Call Confirmations
”), to be dated the date on which the option granted to the Initial Purchasers pursuant to
Section
2(a)
hereof to purchase
such Option Securities is exercised. This purchase agreement (this “
Agreement
”), the Indenture, the Securities and the Capped Call Confirmations are referred to herein collectively as the “
Transaction Documents
.”
The Company hereby confirms its agreement with the several Initial Purchasers concerning the purchase and sale of the Securities, as
follows:
1.
Offering Memorandum and Transaction Information
. The Securities will be sold to the Initial Purchasers without being
registered under the Securities Act of 1933, as amended (the “
Securities Act
”), in reliance upon an exemption therefrom. The Company has prepared a preliminary offering memorandum dated November 7, 2017 (the
“
Preliminary Offering Memorandum
”) and will prepare an offering memorandum dated the date hereof (the “
Offering Memorandum
”) setting forth information concerning the Company and the Securities. Copies of the
Preliminary Offering Memorandum have been, and copies of the Offering Memorandum will be, delivered by the Company to the Initial Purchasers pursuant to the terms of this Agreement. The Company hereby confirms that it has authorized the use of the
Preliminary Offering Memorandum, the other Time of Sale Information (as defined below) and the Offering Memorandum in connection with the offering and resale of the Securities by the Initial Purchasers in the manner contemplated by this Agreement
(the “
Offering
”). References herein to the Preliminary Offering Memorandum, the Time of Sale Information and the Offering Memorandum shall be deemed to refer to and include any document incorporated by reference therein as of the
date of such Preliminary Offering Memorandum, Time of Sale Information or Offering Memorandum, as the case may be, and any reference to “amend,” “amendment” or “supplement” with respect to the Preliminary Offering
Memorandum or the Offering Memorandum shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission (the
“
Commission
”) thereunder (collectively, the “
Exchange Act
”) and incorporated by reference therein.
As
of 5:00 P.M., New York City time, on the date of this Agreement (the “
Time of Sale
”), the Company had prepared the following information (collectively, the “
Time of Sale Information
”): the Preliminary Offering
Memorandum, as supplemented and amended by the written communications listed on
Annex A
hereto.
2.
Purchase and Resale of the
Securities
. (a) The Company agrees to issue and sell the Underwritten Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements set
forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective principal amount of Underwritten Securities set forth opposite such Initial Purchaser’s name in
Schedule 1
hereto at a price equal to 97.5% of the principal amount thereof (the “
Purchase Price
”) plus accrued interest, if any, from November 14, 2017 to the Closing Date (as defined below).
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In addition, the Company agrees to issue and sell the Option Securities to the several Initial
Purchasers as provided in this Agreement, and the Initial Purchasers, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, shall have the option to purchase, severally and
not jointly, from the Company the Option Securities at the Purchase Price plus accrued interest, if any, from November 14, 2017 to the date of payment and delivery, solely to cover over-allotments.
If any Option Securities are to be purchased, the principal amount of Option Securities to be purchased by each Initial Purchaser shall be the
principal amount of Option Securities which bears the same ratio to the aggregate principal amount of Option Securities being purchased as the principal amount of Underwritten Securities set forth opposite the name of such Initial Purchaser in
Schedule 1
hereto (or such amount increased as set forth in
Section
10
hereof) bears to the aggregate principal amount of Underwritten Securities being purchased from the Company by the several Initial Purchasers,
subject, however, to such adjustments to eliminate Securities in denominations other than $1,000 as the Representatives in their sole discretion shall make.
The Initial Purchasers may exercise the option to purchase the Option Securities at any time in whole, or from time to time in part, on or
before the thirtieth (30
th
) day following the date of this Agreement, by written notice from the Representatives to the Company. Such notice shall set forth the aggregate principal amount of
Option Securities plus accrued interest as to which the option is being exercised and the date and time when the Option Securities are to be delivered and paid for which may be the same date and time as the Closing Date (as hereinafter defined) but
shall not be earlier than the Closing Date nor later than the tenth full business day (as hereinafter defined) after the date of such notice (unless such time and date are postponed in accordance with the provisions of
Section
10
hereof). Any such notice shall be given at least two business days prior to the date and time of delivery specified therein.
(b) The Company understands that the Initial Purchasers intend to offer the Securities for resale on the terms set forth in the Time of Sale
Information. Each Initial Purchaser, severally and not jointly, represents, warrants and agrees that:
(i) it is a
qualified institutional buyer within the meaning of Rule 144A under the Securities Act (a “
QIB
”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“
Regulation
D
”);
(ii) it has not, and none of its affiliates or any other person acting on its behalf has, solicited offers
for, or offered or sold, and neither it nor such persons will solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner
involving a public offering within the meaning of Section 4(a)(2) of the Securities Act; and
(iii) it has not, and
none of its affiliates or any other person acting on its behalf has, solicited offers for, or offered or sold, and neither it nor such persons will solicit offers for, or offer or sell, the Securities as part of their initial offering except to
persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A under the Securities Act (“
Rule 144A
”) and in connection with each such sale, it has taken or will take reasonable steps to ensure that the
purchaser of the Securities is aware that such sale is being made in reliance on Rule 144A.
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(c) Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the
“no registration” opinions to be delivered to the Initial Purchasers pursuant to
Sections 6(d)
and
6(f)
hereof, counsel for the Company and counsel for the Initial Purchasers, as applicable, may rely upon the accuracy of the
representations and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements, contained in
paragraph (b)
above, and each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may offer and sell Securities to or through any affiliate of an Initial
Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser;
provided
that notwithstanding the forgoing, each Initial Purchaser shall remain responsible in all respects for the
fulfillment of its obligations under this Agreement, and for the actions of any affiliates acting on behalf of such Initial Purchaser.
(e)
Payment for the Securities shall be made by wire transfer in immediately available funds to the account specified by the Company to the Representatives in the case of the Underwritten Securities, at the offices of Goodwin Procter LLP, 100 Northern
Avenue Boston, MA 02210, at 10:00 A.M. New York City time on November 14, 2017, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the Company may agree
upon in writing or, in the case of the Option Securities, on the date and at the time and place specified by the Representatives in the written notice of the Initial Purchasers’ election to purchase such Option Securities. The time and date of
such payment for the Underwritten Securities is referred to herein as the “
Closing Date
” and the time and date for such payment for the Option Securities, if other than the Closing Date, is herein referred to as the
“
Additional Closing Date
.”
Payment for the Securities to be purchased on the Closing Date or the Additional Closing
Date, as the case may be, shall be made against delivery to the nominee of The Depository Trust Company (“
DTC
”), for the respective accounts of the several Initial Purchasers of the Securities to be purchased on such date, of one or
more global notes representing the Securities (collectively, the “
Global Note
”), with any transfer taxes payable in connection with the sale of such Securities duly paid by the Company. The Global Note will be made available for
inspection by the Representatives at the office of J.P. Morgan Securities LLC set forth above not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date or the Additional Closing Date, as the case may be.
3.
Representations and Warranties of the Company
. The Company represents and warrants to each Initial Purchaser, and agrees with each
Initial Purchaser that:
(a)
Preliminary Offering Memorandum.
The Preliminary Offering Memorandum, as of its date, did not contain
any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
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they were made, not misleading;
provided
that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Initial Purchaser furnished to the Company in writing by such Initial Purchaser through the Representatives expressly for use in any Preliminary Offering Memorandum, it being understood and agreed that the only such
information furnished by any Initial Purchaser consists of the information described as such in
Section
7(b)
hereof.
(b)
Time of Sale Information
. The Time of Sale Information, at the Time of Sale, did not, and as of the Closing Date and as of the
Additional Closing Date, as the case may be, will not, contain any untrue statement of a material fact or omit 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;
provided
that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Company in
writing by such Initial Purchaser through the Representatives expressly for use in such Time of Sale Information, it being understood and agreed that the only such information furnished by any Initial Purchaser consists of the information described
as such in
Section
7(b)
hereof. No statement of material fact included in the Offering Memorandum has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information
that would be required to be included in a registration statement to be filed with the Commission has been omitted from the Offering Memorandum.
(c)
Additional Written Communications.
The Company (including its agents and representatives, other than the Initial Purchasers in their
capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an
“
Issuer Written Communication
”) other than (i) the Preliminary Offering Memorandum, (ii) the Offering Memorandum, (iii) the documents listed on
Annex A
hereto, including a term sheet substantially in the form
of
Annex B
hereto, which constitute part of the Time of Sale Information, and (iv) each electronic road show and any other written communications approved in writing in advance by the Representatives. Each such Issuer Written
Communication does not conflict with the information contained in the Time of Sale Information, and when taken together with the Time of Sale Information, did not, and at the Closing Date and as of the Additional Closing Date, as the case may be,
will not, contain any untrue statement of a material fact or omit 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;
provided
that the
Company makes no representation or warranty with respect to any statements or omissions made in each such Issuer Written Communication in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Company in
writing by such Initial Purchaser through the Representatives expressly for use in such Issuer Written Communication, it being understood and agreed that the only such information furnished by any Initial Purchaser consists of the information
described as such in
Section
7(b)
hereof.
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(d)
Offering Memorandum.
As of the date of the Offering Memorandum and as of the Closing
Date and as of the Additional Closing Date, as the case may be, the Offering Memorandum does not and will not contain any untrue statement of a material fact or omit 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;
provided
that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information
relating to any Initial Purchaser furnished to the Company in writing by such Initial Purchaser through the Representatives expressly for use in the Offering Memorandum, it being understood and agreed that the only such information furnished by any
Initial Purchaser consists of the information described as such in
Section
7(b)
hereof.
(e)
Incorporated
Documents.
The documents incorporated by reference in the Offering Memorandum or the Time of Sale Information, when they became effective or were filed with the Commission conformed in all material respects to the requirements of the Exchange
Act and the rules and regulations of the Commission thereunder and none of such documents contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Offering Memorandum or the Time of Sale Information, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(f)
Organization and Good Standing.
The Company and each of its subsidiaries (as defined under Rule 405 of the Securities Act) have been
duly organized and are validly existing as corporations or other legal entities in good standing (or the foreign equivalent thereof) under the laws of their respective jurisdictions of incorporation or organization, as applicable. The Company and
each of its subsidiaries are duly qualified to do business and are in good standing or validly existing, as the case may be, as foreign corporations or other legal entities in each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such qualification and have all power and authority (corporate or other) necessary to own or hold their respective properties and to conduct the businesses in which they are engaged,
except where the failure to so qualify or have such power or authority would not (i) have, singly or in the aggregate, a material adverse effect on the condition (financial or otherwise), results of operations, assets, properties, business or
prospects of the Company and its subsidiaries taken as a whole, or (ii) impair in any material respect the ability of the Company to perform its obligations under the Transaction Documents or to consummate the Offering or any transactions
contemplated by this Agreement (any such effect as described in clauses (i) or (ii), a “
Material Adverse Effect
”). The Company’s subsidiaries (whether direct or indirect) consist of only the subsidiaries listed in
Schedule 2
to this Agreement. The subsidiaries identified in clauses (1), (3) and (4) of
Schedule 2
to this Agreement are the only significant subsidiaries of the Company as defined in Rule
1-02(w)
of Regulation
S-X
under the Exchange Act.
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(g)
Due Authorization
. The Company has the full right, power and authority to enter into
the Transaction Documents, and to perform and discharge its obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery by it of each of the Transaction Documents and the
consummation by it of the transactions contemplated hereby or thereby or by the Time of Sale Information and the Offering Memorandum has been duly and validly taken.
(h)
The
Agreement
. This Agreement has been duly authorized, executed and delivered by the Company.
(i)
The Indenture
. The Indenture has been duly authorized by the Company and, when duly executed and delivered in accordance with its
terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (collectively, the “
Enforceability Exceptions
”).
(j)
The Securities.
The Securities to be issued and sold by the Company hereunder have been duly authorized by the Company and, when
duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and will constitute valid and legally binding obligations of the Company enforceable against the Company
in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(k)
The Underlying Securities
. Upon issuance and delivery of the Securities in accordance with this Agreement and the Indenture, the Securities will be convertible at the option of the holder thereof into shares of the Underlying Securities in
accordance with the terms of the Securities; the maximum number of shares of Common Stock reserved for issuance upon conversion of the Securities (including the maximum number of shares of Common Stock that may be issued upon conversion of the
Securities in connection with a “make-whole fundamental change as defined in the “Description of notes” section of the Preliminary Offering Memorandum” (the “
Maximum Underlying Shares
”)) have been duly authorized
and reserved and, when and to the extent issued upon conversion of the Securities in accordance with the terms of the Securities and the Indenture, will be validly issued, fully paid and nonassessable; and the issuance of the Underlying Securities
will not be subject to any preemptive rights, rights of first refusal, registration rights or similar rights and will conform to the description thereof contained in the Time of Sale Information and the Offering Memorandum.
(l)
The Capped Call Confirmation
s. (x) Each Base Capped Call Confirmation has been duly authorized, executed and delivered by the
Company and constitutes, and (y) any Additional Capped Call Confirmation(s) has been duly authorized by the Company and, when duly executed and delivered by the Company, will constitute, in each case, a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions.
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(m)
Shell Company
. The Company is not a “shell company” as described in Rule
144(i) under the Securities Act.
(n)
Capitalization.
The Company has an authorized capitalization as set forth in the Time of Sale
Information under the heading “Capitalization,” and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and
non-assessable,
have
been issued in compliance with federal and state securities laws, and conform to the description thereof contained in the Time of Sale Information and the Offering Memorandum. As of September 30, 2017, there were 64,567,418 shares of
Common Stock issued and outstanding and no shares of Preferred Stock, par value $0.0001, of the Company issued and outstanding and as of September 30, 2017, there were 9,755,186 shares of Common Stock issuable upon the exercise of all options,
warrants and convertible securities outstanding as of such date. Since September 30, 2017, the Company has not issued any securities, other than Common Stock of the Company issued pursuant to the exercise of stock options previously outstanding
under the Company’s equity incentive plan and under other stock option agreements or the issuance of options or restricted Common Stock pursuant to the equity incentive plan or under other stock option agreements. All of the stock options,
warrants and other rights to purchase or exchange any securities for shares of the Company’s capital stock have been duly authorized, and were issued in compliance with U.S. federal and applicable state securities laws. None of the
outstanding shares of Common Stock was issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company. The description of the Company’s equity incentive
plan and stock options or other rights granted thereunder or pursuant to other stock option agreements, as described in the Time of Sale Information and the Offering Memorandum, fairly presents the information required to be shown with respect to
the equity incentive plan and such other stock option agreements, stock options and rights and are accurate in all material respects.
(o)
Subsidiaries.
All the outstanding shares of capital stock or other equity interests of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and nonassessable and are owned by the Company directly or
indirectly through one or more wholly-owned subsidiaries, free and clear of any claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party.
(p)
No Conflicts.
The execution, delivery and performance of each of the Transaction Documents by the Company, the issuance and sale of
the Securities by the Company (including the issuance of the Underlying Securities upon conversion thereof) and the consummation of the transactions contemplated by the Transaction Documents will not (with or without notice or lapse of time or
both) (i) conflict with or result in a breach or violation of any of the terms or provisions of, constitute a default or Debt Repayment Triggering Event (as defined below) under, give rise to any right of termination or other right or the
cancellation or acceleration of any right or obligation or loss of a benefit under, or give rise to the creation or imposition of any lien, encumbrance, security interest, claim or charge upon any property or assets of the Company or any subsidiary
pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the
8
articles of incorporation or bylaws (or analogous governing instruments, as applicable) of the Company or any of its subsidiaries or (iii) result in any violation of any law, statute, rule,
regulation, judgment, order or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets, except, in the case of clause (i) or
(iii) would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect. A “
Debt Repayment Triggering Event
” means any event or condition that gives, or with the giving of notice or lapse of
time would give the holder of any note, debenture or other evidence of material 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.
(q)
No Consents Required
. Except for such consents, approvals, authorizations,
registrations or qualifications as may be required under applicable state or foreign securities laws and from the NASDAQ Global Select Market (the “
NASDAQ GSM
”) in connection with the Offering and the Transaction Documents, no
consent, approval, authorization or order of, or filing, qualification or registration with, any court or governmental agency or body, foreign or domestic, which has not been made, obtained or taken and is not in full force and effect, is required
for the execution, delivery and performance of each of the Transaction Documents by the Company, the offer or sale of the Securities (including the issuance of the Underlying Securities upon conversion thereof) or the consummation of the
transactions contemplated in the Transaction Documents.
(r)
Independent Accountants
. KPMG LLP, who have certified certain financial
statements and related schedules included or incorporated by reference in the Time of Sale Information and the Offering Memorandum, and have audited the Company’s internal control over financial reporting, is an independent registered public
accounting firm as required by the Securities Act, and the rules and regulations thereunder, and the Public Company Accounting Oversight Board (United States) (the “
PCAOB
”). Except as
pre-approved
in accordance with the requirements set forth in Section 10A of the Exchange Act, KPMG LLP has not been engaged by the Company to perform any “prohibited activities” (as defined in
Section 10A of the Exchange Act).
(s)
Financial Statements.
The Company’s financial statements, together with the related
notes and schedules, included or incorporated by reference in the Time of Sale Information and the Offering Memorandum fairly present in all material respects the financial position and the results of operations and changes in financial position,
shareholders’ equity and cash flows of the Company and its consolidated subsidiaries as of the respective dates or for the respective periods therein specified. Such statements and related notes and schedules have been prepared in all
material respects in accordance with generally accepted accounting principles in the United States (“
GAAP
”) applied on a consistent basis throughout the periods involved except as may be set forth in the related notes included or
incorporated by reference in the Time of Sale Information. The Company’s financial statements, together with the related notes and schedules, included or incorporated by reference in the Time of Sale Information and the Offering Memorandum
comply in all material respects with the Securities Act, the Exchange Act, and the rules and regulations under the Securities Act and the Exchange Act. No other financial statements or supporting schedules or exhibits would be required by the
Securities Act
9
or the rules and regulations thereunder to be described, or included or incorporated by reference in a registration statement to be filed with the Commission that are not so described, included
or incorporated by reference in the Time of Sale Information or the Offering Memorandum. There is no pro forma or
as-adjusted
financial information which would be required to be included in a registration
statement to be filed with the Commission that are not so included in the Time of Sale Information or the Offering Memorandum or any document incorporated by reference therein. The interactive data in eXtensible Business Reporting Language included
or incorporated by reference in the Time of Sale Information and the Offering 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.
(t)
No Material Adverse Change.
Neither the Company nor any of its subsidiaries has sustained, since the date
of the latest audited financial statements included or incorporated by reference in the Time of Sale Information, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Time of Sale Information or would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse
Effect; and, since such date, there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries or any material adverse changes in or affecting the business, assets, general affairs, management,
financial position, prospects, shareholders’ equity or results of operations of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Time of Sale Information.
(u)
Legal Proceedings.
Except as set forth in the Time of Sale Information, there is no legal or governmental action, suit, claim or
proceeding pending to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company or any of its subsidiaries is the subject which is required to be described in the Time of Sale Information or the
Offering Memorandum or a document incorporated by reference therein and is not described therein, or which, singularly or in the aggregate, if determined adversely to the Company or any of its subsidiaries, would reasonably be expected to result in
a Material Adverse Effect or prevent the consummation of the transactions contemplated in the Transaction Documents; and, to the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened
by others.
(v)
No Violation or Default.
Neither the Company nor any of its subsidiaries is in (i) violation of its articles of
incorporation or bylaws (or analogous governing instrument, as applicable), (ii) default in any respect, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of
any term, covenant, obligation, agreement or condition contained in any indenture, mortgage, deed of trust, loan or credit agreement, other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which it is a
party or by which the Company or its subsidiaries are bound or to which any of its property or assets is subject or (iii) violation in any respect of any statute, law, ordinance, governmental rule, regulation, ordinance, or court order, decree
or judgment to which it or its property or assets may be subject except, in the case of clauses (ii) and (iii) of this
paragraph (v)
, for any violations or defaults which would not, singly or in the aggregate, have a Material Adverse
Effect.
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(w)
Licenses and Permits.
The Company and each of its subsidiaries have made all filings,
applications, declarations and submissions required by, and own or possess all approvals, licenses, certificates, clearances, consents, exemptions, marks, notifications, orders, authorizations and permits issued by the appropriate local, state,
federal or foreign regulatory agencies or bodies, including, without limitation, the Food and Drug Administration (the “
FDA
”) and any agency of any foreign government and any other foreign regulatory authority exercising authority
comparable to that of the FDA (including any
non-governmental
entity whose approval or authorization is required under foreign law comparable to that administered by the FDA), which are required for the
ownership of their respective properties or the conduct of their current respective businesses as described in the Time of Sale Information and the Offering Memorandum (collectively, the “
Governmental Permits
”) and is in compliance
with the terms and conditions of all such Governmental Permits, except where any failures to possess or any noncompliance would not, singly or in the aggregate, have a Material Adverse Effect. All such Governmental Permits are valid and in full
force and effect and the Company and each of its subsidiaries have fulfilled and performed all of their respective material obligations with respect to the Government Permits. Except as set forth in the Time of Sale Information, neither the
Company nor any of its subsidiaries has received any written notice of any pending or threatened revocation, modification or cancellation of, any such Governmental Permit, which, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect.
(x)
Investigational New Drug Applications
. (i) Each
Investigational New Drug application (“
IND
”) submitted by the Company to the FDA or equivalent application submitted by the Company to foreign regulatory bodies, and related documents and information, when submitted to the FDA or
other regulatory body was true, complete and correct in all material respects as of the date of submission and has been maintained in compliance in all material respects with applicable statutes, rules and regulations administered or promulgated by
the FDA or other regulatory body; (ii) the studies, tests and preclinical and clinical trials conducted by or on behalf of the Company that are described in the Time of Sale Information or the Offering Memorandum were and, if still pending, are
being, conducted in all material respects in accordance with experimental protocols, procedures and controls pursuant to, where applicable, accepted professional and scientific standards and applicable statutes, rules and regulations, including, but
not limited to, the Federal Food, Drug and Cosmetic Act and its applicable implementing regulations at 21 C.F.R. Parts 50, 54, 56, 58 and 313; and the drug substances used in the clinical trials have been manufactured in all material respects under
current Good Manufacturing Practices, including, but not limited to, FDA’s current good manufacturing practice regulations at 21 C.F.R. Parts
210-211;
and (iii) the Company uses commercially
reasonable efforts to review, from time to time, the progress and results of the studies, tests and preclinical and clinical trials and, based upon (1) the information provided to the Company by the third parties conducting such studies, tests
and preclinical and clinical trials that are described in the Time of Sale Information and the Offering Memorandum and the Company’s review of such information, and (2) to the Company’s knowledge, such descriptions of the results of
such studies, tests and preclinical and clinical trials are accurate and complete in all material respects.
11
The Company has not received any written notices or correspondence from the FDA or any foreign, state or local governmental body exercising comparable authority requiring the termination or
suspension of any studies, tests or preclinical or clinical trials conducted by or on behalf of the Company. To the Company’s knowledge, no filing or submission to the FDA or any other regulatory body, that is intended to be the basis for
any approval of the Company’s product candidates, contained or contains any material omission or, material false information.
(y)
Regulatory Correspondence
. The Company has made available to counsel to the Initial Purchasers FDA and regulatory correspondence logs containing all material correspondence between the Company or its representatives on the one hand and the
FDA on the other hand, relating to the clinical trials of the Company’s product candidates under development and being conducted under any Company-sponsored INDs.
(z)
Investment Company Act
. Neither the Company nor any of its subsidiaries is or, after giving effect to the transactions contemplated
by the Capped Call Confirmations, the Offering and the application of the proceeds thereof as described in the Time of Sale Information and the Offering Memorandum, will be required to register as an “investment company” within the meaning
of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(aa)
No
Stabilization
. Neither the Company, its subsidiaries nor, to the Company’s knowledge, any of the Company’s or its subsidiaries’ officers, directors or affiliates has taken or will take, directly or indirectly, any action designed
or intended to stabilize or manipulate the price of any security of the Company, or which caused or resulted in, or which could in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of
the Company.
(bb)
Intellectual Property
. Except as disclosed in the Time of Sale Information, the Company and each of its
subsidiaries owns, or have obtained valid and enforceable licenses for, or otherwise possesses the right to use all patents, trademarks, trademark registrations, service marks, service mark registrations, trade names, copyrights, licenses,
inventions, software, databases,
know-how,
Internet domain names, trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures, and other intellectual
property rights, including registrations thereof (collectively, “
Intellectual Property
”) as described in the Time of Sale Information and the Offering Memorandum as being owned or licensed to them. Subject to the matters identified
in the Time of Sale Information, the Company believes it and its subsidiaries own the Intellectual Property necessary to carry on their respective businesses as currently conducted and as proposed to be conducted and described in the Time of Sale
Information and the Offering Memorandum. As of the date of this Agreement, the Company has not received notice of any claim of infringement or any challenge, which to their knowledge is still pending or threatened, by any other person to the rights
of the Company and its subsidiaries with respect to the foregoing except for those described in the Time of Sale Information and the Offering Memorandum. Except as described in the Time of Sale Information or as would not reasonably be expected
to have a Material Adverse Effect, none of the Intellectual Property owned by or exclusively licensed to the Company or any of its subsidiaries has been judged invalid or unenforceable, in whole or in part, and there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity, enforceability or scope of any such Intellectual
12
Property. The Intellectual Property licenses described in the Time of Sale Information and the Offering Memorandum are valid, binding upon, and enforceable against the Company and, to the
Company’s knowledge, the other parties thereto in accordance with their terms, except (i) as limited by laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) as limited by rules of law
governing specific performance, injunctive relief or other equitable remedies and by general principles of equity. As of the date of this Agreement and except as disclosed in Time of Sale Information, the Company and each of its subsidiaries
has complied with, and is not in material breach nor has received any asserted or threatened claim of breach of, any Intellectual Property license, and the Company has no knowledge of any breach or anticipated breach by any other person to any
Intellectual Property license. Except as described in the Time of Sale Information and the Offering Memorandum, no written claim has been made against the Company or any of its subsidiaries alleging the infringement by the Company or any of its
subsidiaries of any patent, trademark, service mark, trade name, copyright, trade secret, license in or other intellectual property right or franchise right of any person. None of the technology employed by the Company has been obtained or is
being used by the Company in violation of any material contractual obligation binding on the Company or, to the Company’s knowledge, upon any of its officers, directors or employees. The Company and each of its subsidiaries have taken
reasonable steps to protect, maintain and safeguard its rights in all Intellectual Property, including the execution of appropriate nondisclosure and confidentiality agreements. Except as would not reasonably be expected to have a Material
Adverse Effect, the Company is not aware of any facts that it believes would form a reasonable basis for a successful challenge that any of its employees are in or have ever been in violation of any term of any employment contract, patent disclosure
agreement, invention assignment agreement,
non-competition
agreement,
non-solicitation
agreement, nondisclosure agreement or any restrictive covenant to or with a former
employer where such violation relates to such employee’s breach of a confidentiality obligation, obligation to assign to the Company Intellectual Property, or obligation not to use third party Intellectual Property or other proprietary rights
on behalf of the Company. Except as disclosed in the Time of Sale Information, to the Company’s knowledge, there is no prior art material to any patent or patent application of the Intellectual Property that may render any U.S. patent held
by the Company invalid or any U.S. patent application held by the Company unpatentable that has not been disclosed to the U.S. Patent and Trademark Office. The consummation of the transactions contemplated by this Agreement will not result in
the loss or impairment of or payment of any additional amounts with respect to, nor require the consent of any other person in respect of, the Company’s or any of its subsidiaries’ right to own, use, or hold for use any of the Intellectual
Property as owned, used or held for use in the conduct of their businesses as currently conducted. To the Company’s knowledge, the Company and each of its subsidiaries have at all times complied in all material respects with all applicable
laws relating to privacy, data protection, and the collection and use of personal information collected, used, or held for use by the Company and any of its subsidiaries in the conduct of the Company’s and its subsidiaries’
businesses. No written claims have been asserted or threatened against the Company or any of its subsidiaries alleging a violation of any person’s privacy or personal information or data rights and the consummation of the transactions
contemplated hereby will not breach or otherwise cause any violation of any law related to privacy, data protection, or the collection and use of personal information collected, used, or held for use by the Company or any of its subsidiaries in the
conduct of the Company’s or any of its subsidiaries’ businesses. The Company and each of its subsidiaries take reasonable measures to ensure that such information is protected against unauthorized access, use, modification, or other
misuse.
13
(cc)
Title to
Real and Personal Property.
The Company and each of its subsidiaries
have valid title in fee simple to, or have valid rights to lease or otherwise use, all items of real or personal property which are material to the business of the Company and its subsidiaries taken as a whole, in each case free and clear of all
liens, encumbrances, security interests, claims and defects that do not, singly or in the aggregate, materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the
Company or any of its subsidiaries; and all of the leases and subleases material to the business of the Company and its subsidiaries, considered as one enterprise, and under which the Company or any of its subsidiaries holds properties described in
the Time of Sale Information and the Offering Memorandum, are in full force and effect.
(dd)
No Labor Disputes.
No labor
disturbance or dispute with the employees of the Company or any of the Company’s subsidiaries exists or, to the Company’s knowledge, 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, manufacturers, customers or contractors, that would reasonably be expected, singly or in the aggregate, to have a Material Adverse Effect. The Company is not aware that
any key employee or significant group of employees of the Company or any of the Company’s subsidiaries plans to terminate employment with the Company or any of the Company’s subsidiaries.
(ee)
Compliance with ERISA.
No “prohibited transaction” (as defined in Section 406 of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“
ERISA
”), or Section 4975 of the Internal Revenue Code of 1986, as amended from time to time (the “
Code
”))
or “accumulated funding deficiency” (as defined in Section 302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA (other than events with respect to which the thirty
(30)-day
notice requirement under Section 4043 of ERISA has been waived) has occurred or could reasonably be expected to occur with respect to any employee benefit plan of the Company or any of its
subsidiaries which could, singly or in the aggregate, have a Material Adverse Effect. Each employee benefit plan of the Company or any of its subsidiaries is in compliance in all material respects with applicable law, including ERISA and the
Code. The Company and its subsidiaries have not incurred and could not reasonably be expected to incur liability under Title IV of ERISA with respect to the termination of, or withdrawal from, any pension plan (as defined in ERISA). Each
pension plan for which the Company or any of its subsidiaries would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified, and nothing has occurred, whether by action or by failure to act, which
could, singly or in the aggregate, reasonably be expected to cause the loss of such qualification.
(ff)
Certain Environmental
Matters
. Except as would not reasonably be expected to, singly or in the aggregate, result in a Material Adverse Effect, the Company and its subsidiaries are in compliance in all respects with all applicable foreign, federal, state and local
statutes, laws, including the common law rules, and regulations, codes, ordinances, orders, judgments or decrees relating to the use, treatment, storage and disposal of hazardous or toxic substances or
14
wastes and the protection of health and safety or the environment, including without limitation, natural resources (“
Environmental Laws
”). There has been no use,
storage, generation, transportation, handling, treatment, disposal, discharge, emission, or other release of any kind of hazardous or toxic substances or wastes by, due to, or caused by the Company or any of its subsidiaries (or, to the
Company’s knowledge, any other entity for whose acts or omissions the Company or any of its subsidiaries is or may otherwise be liable) upon, under, at or from any of the property now or previously owned, leased or operated by the Company or
any of its subsidiaries, or upon any other property, in violation of any Environmental Law, or Governmental Permit issued thereunder or which would, give rise to any liability, except for any violation or liability which would not have,
singularly or in the aggregate with all such violations and liabilities, a Material Adverse Effect; and there has been no disposal, discharge, emission or other release of any kind onto under, at or from such property or into the environment of any
toxic hazardous substances or wastes with respect to which the Company has knowledge, except for any such disposal, discharge, emission, or other release of any kind which would not have, singularly or in the aggregate with all such discharges and
other releases, a Material Adverse Effect. In the ordinary course of business, the Company and its subsidiaries conduct periodic reviews of the effect of Environmental Laws on their business and assets, in the course of which they identify and
evaluate any associated material costs and liabilities (including, without limitation, any capital or operating expenditures required for any environmental remediation or compliance with Environmental Laws or Governmental Permits issued thereunder,
any related material constraints on operating activities and any potential material liabilities to third parties). On the basis of such reviews, the Company and its subsidiaries have reasonably concluded that such associated costs and
liabilities would not have, singularly or in the aggregate, a Material Adverse Effect.
(gg)
Occupational Safety and Health
Act
. The Company and its subsidiaries are in compliance in all respects with all applicable provisions of the Occupational Safety and Health Act of 1970, as amended, including all applicable regulations thereunder, except for such
noncompliance as would not, singly or in the aggregate, have a Material Adverse Effect.
(hh)
Taxes
. Each of the Company and its
subsidiaries (i) has timely filed all necessary federal, state, local and foreign tax returns (or timely filed applicable extensions therefor) that have been required to be filed, and all such returns were true, complete and correct,
(ii) has paid all federal, state, local and foreign taxes, assessments, governmental or other charges that are due and payable for which it is liable, including, without limitation, all sales and use taxes and all taxes which the Company or any
of its subsidiaries is obligated to withhold from amounts owing to employees, creditors and third parties, and (iii) does not have any tax deficiency or claims outstanding or assessed or, to its knowledge, proposed against any of them, except
those, in each of the cases described in clauses (i), (ii) and (iii) of this
paragraph (hh)
, that would not, singly or in the aggregate, have a Material Adverse Effect. Neither the Company nor any of its subsidiaries has engaged in
any transaction which is a corporate tax shelter or which could be characterized as such by the Internal Revenue Service or any other taxing authority. The accruals and reserves on the books and records of the Company and its subsidiaries in
respect of tax liabilities for any taxable period not yet finally determined are adequate to meet any assessments and related liabilities for any such period, and since December 31, 2011 neither the Company nor any of its subsidiaries has
incurred any liability for taxes other than in the ordinary course.
15
(ii)
Insurance
. The Company and each of its subsidiaries carries or is covered by
insurance provided by recognized, financially sound and reputable institutions with policies in such amounts and covering such risks as is adequate for the conduct of the businesses of the Company and its subsidiaries taken as a whole, and the value
of their properties, taken as a whole, as is customary for companies engaged in similar businesses in similar industries. The Company has no reason to believe that it and its subsidiaries will not be able to renew their existing insurance
coverage as and when such coverage expires or to obtain comparable coverage from similar insurers as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not have a Material Adverse Effect. Neither
the Company nor any of its subsidiaries has been denied any insurance coverage that it has sought or for which it has applied.
(jj)
Accounting Controls
. The Company and its subsidiaries maintain a system of internal accounting and other controls sufficient to provide reasonable assurances 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 GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance
with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the
interactive data in eXtensible Business Reporting Language incorporated by reference in the Time of Sale Information and the Offering Memorandum fairly presents the information called for in all material respects and is prepared in accordance with
the Commission’s rules and guidelines applicable thereto. Except as described in the Time of Sale Information, since the end of the Company’s most recent audited fiscal year, there has been (A) no material weakness in the
Company’s internal control over financial reporting (whether or not remediated) and (B) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial reporting.
(kk)
Minutes
. The minute books of the Company have been made
available to the Initial Purchasers and counsel for the Initial Purchasers, and, to the Company’s knowledge, such books (i) contain a complete summary of all meetings and actions of the board of directors (including each board committee)
since December 18, 2012 through the date of the latest meeting and action, and (ii) accurately in all material respects reflect all transactions referred to in such minutes;
provided
that the Initial Purchasers accept and
acknowledge that certain minutes of the board or committees of the board have been provided in draft form which are substantially complete, but which are not considered the final minutes of such meetings of the board.
(ll)
Material Agreements.
There is no material franchise, lease, contract, agreement or document required by the Securities Act or by
the rules and regulations thereunder to be described in the Time of Sale Information and in the Offering Memorandum or a document incorporated by reference therein which is not described or filed therein as required; and all descriptions of any such
franchises, leases, contracts, agreements or documents contained in the Time of Sale Information or in a document incorporated by reference therein are accurate and complete descriptions of such documents in all material respects. Other than as
described in the
16
Time of Sale Information, no such franchise, lease, contract or agreement has been suspended or terminated for convenience or default by the Company or any of its subsidiaries or any of the other
parties thereto, and neither the Company nor any of its subsidiaries has received notice nor does the Company have any other knowledge of any such pending or threatened suspension or termination, except for such pending or threatened suspensions or
terminations that would not reasonably be expected to, singly or in the aggregate, have a Material Adverse Effect.
(mm)
No Undisclosed
Relationships.
No relationship, direct or indirect, exists between or among the Company and any of its subsidiaries on the one hand, and the directors, officers and shareholders (or analogous interest holders) of the Company or any of its
subsidiaries or any of their affiliates on the other hand, which is required by the Securities Act to be described in a registration statement to be filed with the Commission and that is not so described in the Time of Sale Information and the
Offering Memorandum or a document incorporated by reference therein.
(nn)
No Registration Rights.
Except as described in the Time
of Sale Information, there are no persons with registration rights or similar rights to have any securities registered by the Company or any of its subsidiaries under the Securities Act.
(oo)
Rule 144A Eligibility
. On the Closing Date, the Securities will not be of the same class as securities listed on a national
securities exchange registered under Section 6 of the Exchange Act or quoted in an automated inter-dealer quotation system; and each of the Time of Sale Information, as of the Time of Sale, and the Offering Memorandum, as of its date, contains
or will contain all the information that, if requested by a prospective purchaser of the Securities, would be required to be provided to such prospective purchaser pursuant to Rule 144A(d)(4) under the Securities Act.
(pp)
No Integration
. Neither the Company nor any of its affiliates (as defined in Rule 501(b) of Regulation D) has, directly or through
any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Securities Act), that is or will be integrated with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.
(qq)
No General Solicitation
. None of the Company or any of its affiliates
or any other person acting on its or their behalf (other than the Initial Purchasers, as to which no representation is made) has solicited offers for, or offered or sold, the Securities by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act.
(rr)
Securities Law Exemptions
. Assuming the accuracy of the representations and warranties of the Initial Purchasers contained in
Section
2(b
) hereof and their compliance with their agreements set forth therein, it is not necessary, in connection with the issuance and sale of the Securities to the Initial Purchasers and the offer, resale and delivery
of the Securities by the Initial Purchasers in the manner contemplated by this Agreement, the Time of Sale Information and the Offering Memorandum, to register the Securities under the Securities Act or to qualify the Indenture under the Trust
Indenture Act.
17
(ss)
Margin Rules
. Neither the Company nor any of its subsidiaries owns any “margin
securities” as that term is defined in Regulation U of the Board of Governors of the Federal Reserve System (the “
Federal Reserve Board
”), and none of the proceeds of the sale of any of the Securities will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry any margin security or for any other purpose which might cause any
of the Securities to be considered a “purpose credit” within the meanings of Regulation T, U or X of the Federal Reserve Board.
(tt)
No Broker’s Fees.
Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with
any person (other than the Transaction Documents) that would give rise to a valid claim against the Company or the Initial Purchasers for a brokerage commission, finder’s fee or like payment in connection with the Offering or any transaction
contemplated by this Agreement.
(uu)
Forward-Looking Statements.
No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in either the Time of Sale Information or the Offering Memorandum has been made without a reasonable basis.
(vv)
Common Stock.
The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act and is listed on the
NASDAQ GSM, and the Company has taken no action designed to, or reasonably likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the NASDAQ GSM, nor has the Company
received any notification that the Commission, FINRA or the NASDAQ Stock Market LLC is currently contemplating terminating such registration or listing. No consent, approval, authorization or order of, or filing, notification or registration with,
the NASDAQ GSM is required for the listing and trading of the shares of Common Stock on the NASDAQ GSM, except for (i) a Notification Form: Listing of Additional Shares; and (ii) if applicable, a Notification Form: Change in the Number of
Shares Outstanding.
(ww)
Sarbanes-Oxley Act
. The Company is in material compliance with all applicable effective provisions of the
Sarbanes-Oxley Act of 2002 and any related rules and regulations promulgated by the Commission thereunder (the “
Sarbanes-Oxley Act
”).
(xx)
No Unlawful Payments.
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) 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.
18
(yy)
Statistical and Market Data.
Nothing has come to the attention of the Company that
has caused the Company to believe that the statistical, industry-related and market-related data included or incorporated by reference in the Time of Sale Information or the Offering Memorandum is not based on or derived from sources that are
reliable and accurate in all material respects.
(zz)
Compliance with Anti-Money Laundering Laws
. 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 against the Company or any of its subsidiaries.
(aaa)
Compliance with Sanctions Laws.
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 (1) 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, Her Majesty’s Treasury (“
HMT
”), or other relevant sanctions authority (collectively, “
Sanctions
”), nor (2) located, organized or resident in a country
or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, Crimea, North Korea, Sudan and Syria). The Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other Person (1) 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 (2) 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).
(bbb)
FINRA
. Neither the Company nor any subsidiary nor any of their affiliates (within the meaning of the Financial Industry Regulatory
Authority’s (“
FINRA
”) Conduct Rule 5121(f)(1)) directly or indirectly controls, is controlled by, or is under common control with, or is an associated person (within the meaning of Article I, Section 1(ee) of the
By-laws
of FINRA) of, any member firm of FINRA.
19
(ccc)
No Ratings.
The Company’s securities are not rated by any “nationally
recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(ddd)
Audit Committee.
A member of the Company’s audit committee (the “
Audit Committee
”) has confirmed to the Chief Executive Officer or Chief Financial Officer that, except as set forth in the Time of Sale Information
and the Offering Memorandum, the Audit Committee is not reviewing or investigating, and neither the Company’s independent auditors nor its internal auditors have recommended that the Audit Committee review or investigate, (i) adding to,
deleting, changing the application of, or changing the Company’s disclosure with respect to, any of the Company’s material accounting policies; (ii) any matter which could result in a restatement of the Company’s financial
statements for any annual or interim period during the current or prior three fiscal years; or (iii) any significant deficiency, material weakness, adverse change in the Company’s internal controls or fraud involving management or other
employees who have a significant role in the Company’s internal controls.
(eee)
Off Balance Sheet Arrangements
. There are
no off balance sheet arrangements (as defined in Regulation
S-K
Item 303(a)(4)(ii)) that would reasonably be expected to have a material current or future effect on the Company’s financial condition,
changes in financial condition, results of operations, liquidity, capital expenditures or capital resources.
(fff)
Compliance with
Export Laws.
Except as disclosed in the Time of Sale Information and Offering Memorandum, neither the Company nor, to the knowledge of the Company, any officer, director, affiliate, agent, distributor, or representative of the Company has any
reason to believe that the Company or any of the foregoing persons or entities have taken or omitted to take any action in violation of, or which may cause the Company to be in violation of, any applicable U.S. law governing imports into or exports
from the United States, reexports from one foreign country to another, disclosures of technology, or other cross-border transactions, including without limitation: the Arms Export Control Act (22 U.S.C.A. § 2278), the Export Administration
Act (50 U.S.C. App. §§ 2401-2420), the International Traffic in Arms Regulations (22 C.F.R. §§
120-130),
the Export Administration Regulations (15 C.F.R. 730 et seq.), the Customs Laws of
the United States (19 U.S.C. § 1 et seq.), the International Emergency Economic Powers Act (50 U.S.C. §§ 1701-1706), the Trading With the Enemy Act (50 U.S.C. App. §§ 5, 16), the Foreign Assets Control Regulations
administered by the Office of Foreign Assets Control, any executive orders or regulations issued pursuant to the foregoing or by the agencies listed in Part 730 of the Export Administration Regulations, and any applicable
non-U.S.
laws of a similar nature. Except as disclosed in the Time of Sale Information and the Offering Memorandum, to the Company’s knowledge, there has never been a claim or charge made, investigation
undertaken, violation found, or settlement of any enforcement action under any of the laws referred to in this
paragraph (fff)
by any governmental entity with respect to matters arising under such laws against the Company, or against its
agents, distributors or representatives in connection with their relationship with the Company. Except as disclosed in the Time of Sale Information and the Offering Memorandum, the Company and any predecessors have maintained a compliance program
appropriate to the requirements of the aforementioned laws at all times that any such laws applied to the Company’s activities.
20
(ggg)
Descriptions of the Transaction Documents
. Each Transaction Document conforms or
will conform as of the Closing Date in all material respects to the description thereof contained in each of the Time of Sale Information and the Offering Memorandum.
(hhh)
No Restrictions on Subsidiaries
. No subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement
or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock or similar ownership interest, from repaying to the Company any loans or
advances to such subsidiary from the Company or from transferring any of such subsidiary’s properties or assets to the Company or any other subsidiary of the Company.
(iii)
No Shareholder Approval Required
. To the Company’s knowledge, no approval of the shareholders of the Company under the rules
and regulations of NASDAQ (including Rule 5635 of the NASDAQ Marketplace Rules) is required for the Company to issue and deliver the Maximum Underlying Shares upon conversion of the Securities.
4.
Further Agreements of the Company
. The Company covenants and agrees with each Initial Purchaser that:
(a)
Delivery of Copies.
At any time prior to the completion of the initial resale by the Initial Purchasers of the Securities, the
Company will deliver to the Initial Purchasers as many copies of the Preliminary Offering Memorandum, any other Time of Sale Information, any Issuer Written Communication and the Offering Memorandum (including all amendments and supplements thereto)
as the Representatives may reasonably request.
(b)
Offering Memorandum, Amendments or Supplements
. Before finalizing the Offering
Memorandum or making or distributing any amendment or supplement to any of the Time of Sale Information or the Offering Memorandum or filing with the Commission any document that will be incorporated by reference therein, the Company will furnish to
the Representatives and counsel for the Initial Purchasers at any time prior to the completion of the initial resale by the Initial Purchasers of the Securities, a copy of the proposed Offering Memorandum or such amendment or supplement or document
to be incorporated by reference therein for review, and will not distribute any such proposed Offering Memorandum, amendment or supplement or file any such document with the Commission without providing the Representatives a reasonable opportunity
to review and comment.
(c)
Additional Written Communications.
Before making, using, authorizing, approving or referring to any
Issuer Written Communication, at any time prior to the completion of the initial resale by the Initial Purchasers of the Securities, the Company will furnish to the Representatives and counsel for the Initial Purchasers a copy of such written
communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representatives reasonably object.
21
(d)
Notice to the Representatives.
At any time prior to the completion of the initial
resale by the Initial Purchasers of the Securities, the Company will advise the Representatives promptly, and confirm such advice in writing, (i) of the issuance by any governmental or regulatory authority of any order preventing or suspending
the use of any of the Time of Sale Information, any Issuer Written Communication or the Offering Memorandum or the initiation or threatening of any proceeding for that purpose; (ii) of the occurrence or development of any event at any time
prior to the completion of the initial resale by the Initial Purchasers of the Securities as a result of which any of the Time of Sale Information, any Issuer Written Communication or the Offering Memorandum as then amended or supplemented would
include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when such Time of Sale Information, Issuer Written Communication or the
Offering Memorandum is delivered to a purchaser, not misleading; and (iii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and the Company will use its reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of any of the Time of Sale Information, any Issuer Written
Communication or the Offering Memorandum or suspending any such qualification of the Securities and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
(e)
Ongoing Compliance of the Offering Memorandum and Time of Sale Information
. (1) If at any time prior to the completion of the
initial resale by the Initial Purchasers of the Securities (i) any event or development shall occur or condition shall exist as a result of which the Offering Memorandum, as then amended or supplemented, would include 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 existing when the Offering Memorandum is delivered to a purchaser, not misleading or (ii) it is necessary to
amend or supplement the Offering Memorandum to comply with law, the Company will promptly notify the Initial Purchasers thereof and forthwith prepare and, subject to
paragraph (b)
above, furnish to the Initial Purchasers such amendments or
supplements to the Offering Memorandum (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in the Offering Memorandum as so amended or supplemented (or including such
document to be incorporated by reference therein) will not, in the light of the circumstances existing when the Offering Memorandum is delivered to a purchaser, be misleading or so that the Offering Memorandum will comply with applicable law and
(2) if at any time prior to the Closing Date (i) any event or development shall occur or condition shall exist as a result of which any of the Time of Sale Information, as then amended or supplemented, would include 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 or (ii) it is necessary to amend or supplement any of the Time of
Sale Information to comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and forthwith prepare and, subject to
paragraph (b)
above, furnish to the Initial Purchasers such amendments or supplements
to any of the Time of Sale Information (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in any of the Time of Sale Information as so amended or supplemented will not,
in light of the circumstances under which they were made, be misleading.
22
(f)
Blue Sky Compliance.
The Company will take promptly from time to time such actions as
the Representatives may reasonably request to qualify the Securities for offering and sale under the securities or blue sky laws of such jurisdictions (domestic or foreign) as the Representatives may designate and to continue such qualifications in
effect, and to comply with such laws, for so long as required to permit the offer and initial resale of Securities in such jurisdictions;
provided
that the Company and its subsidiaries shall not be obligated to qualify as foreign corporations
in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction.
(g)
Clear Market.
For a period of sixty (60) days from the date of the Offering Memorandum, the Company will not, without the prior written consent of the Representatives, directly or indirectly (i) offer, sell, assign, transfer,
pledge, contract to sell, or otherwise dispose of, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, (ii) publicly disclose the intention to make any offer, sale, assignment,
transfer, pledge or disposition, or (iii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock or such other securities that are convertible into or
exercisable or exchangeable for Common Stock, whether any such transaction described in clauses (i), (ii) or (iii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, other than (A) the
Company’s sale of the Securities hereunder or any shares of Common Stock issued upon conversion thereof, (B) the entry into the transactions contemplated by the Capped Call Confirmations, (C) the issuance of equity awards pursuant to
the Company’s benefit plans, qualified equity incentive plans or other compensation plans as such plans are in existence on the date hereof and described in the Time of Sale Information and the Offering Memorandum or is hereafter approved by
the shareholders of the Company, (D) the issuance of options to induce personnel to accept employment with the Company (whether or not pursuant to a plan), which in the aggregate shall not exceed 3% of the outstanding common stock of the
Company, and (E) the issuance of Common Stock pursuant to the valid exercises of options, warrants or rights outstanding on the date hereof. The Company also agrees that during such period, the Company will not file any registration
statement, preliminary prospectus or prospectus, or any amendment or supplement thereto, under the Securities Act for any such transaction or which registers, or offers for sale, Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, except for a registration statement on Form
S-8
in respect of any transaction or plan described in clause (C) or (D) of the preceding sentence.
(h)
Interim Financial Statements.
Prior to the Closing Date, and any Additional Closing Date, the Company will furnish to the
Representatives, promptly after they have been prepared, copies of any unaudited interim consolidated financial statements of the Company for any periods subsequent to the periods covered by the financial statements appearing in the Offering
Memorandum.
(i)
Press Releases.
Prior to the Closing Date, the Company will not issue any press release or other
communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the
ordinary course of business and consistent with the past practices of the Company and of which the Representatives is notified), without the prior written consent of the Representatives, unless in the judgment of the Company and its counsel, and
after notification to the Representatives, such press release or communication is required by law or applicable stock exchange rules.
23
(j)
No Stabilization.
Until the Representatives shall have notified the Company of the
completion of the Offering, that the Company will not, and will cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which
it or any of its affiliated purchasers has a beneficial interest, any Securities or Common Stock, or attempt to induce any person to purchase any Securities or Common Stock; and not to, and to cause its affiliated purchasers not to, make bids or
purchases for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities or Common Stock. The Representatives hereby agree to promptly notify the Company of the completion of the Offering.
(k)
Use of Proceeds.
The Company will apply the net proceeds from the sale of the Securities as described in each of the Time of Sale
Information and the Offering Memorandum under the heading “Use of proceeds.”
(l)
Underlying Securities
. The Company will
reserve and keep available at all times, free of
pre-emptive
rights, shares of Common Stock for the purpose of enabling the Company to satisfy all obligations to issue the Maximum Underlying Securities upon
conversion of the Securities. The Company will use its commercially reasonable efforts to list, subject to notice of issuance, effect and maintain the quotation and listing of the Maximum Underlying Securities on the NASDAQ GSM.
(m)
Conditions Precedent
. The Company will use its commercially reasonable efforts to do and perform all things required to be done or
performed under this Agreement by the Company prior to the Closing Date, and any Additional Closing Date, and to satisfy all conditions precedent to the delivery of the Underwritten Securities and Option Securities, if any.
(n)
Supplying Information
.
While the Securities remain outstanding and are “restricted securities” within the meaning
of Rule 144(a)(3) under the Securities Act, the Company will, during any period in which the Company is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, furnish to holders of the Securities, prospective purchasers
of the Securities designated by such holders, in each case upon request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(o)
DTC
. The Company will provide reasonable assistance to the Initial Purchasers in arranging for the Securities to be eligible for
clearance and settlement through DTC.
(p)
Conversion Rate
. Between the date hereof and the Closing Time, the Company will not do or
authorize any act or thing that would result in an adjustment of the conversion rate applicable to the Securities.
(q)
No Resales by
the Company
. During the period from the Closing Date until one year after the Closing Date or the Additional Closing Date, if applicable, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the
Securities Act) to, resell any of the Securities that have been acquired by any of them, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the Securities Act.
24
(r)
No Integration
. Neither the Company nor any of its affiliates (as defined in Rule
501(b) of Regulation D) will, directly or through any agent, sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of, any security (as defined in the Securities Act), that is or will be integrated with the sale of the
Securities in a manner that would require registration of the Securities under the Securities Act.
(s)
No General Solicitation
.
None of the Company or any of its affiliates or any other person acting on its or their behalf (other than the Initial Purchasers, as to which no covenant is given) will solicit offers for, or offer or sell, the Securities by means of any form of
general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act.
5.
Payment of Expenses
.
The Company agrees to pay, or reimburse if paid by the Initial Purchasers, upon consummation of the
transactions contemplated hereby: (a) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities to the Initial Purchasers and any taxes payable in that connection; (b) the costs of reproducing and
distributing each of the Transaction Documents; (c) the costs incident to the preparation, printing and distribution of the Preliminary Offering Memorandum, any other Time of Sale Information, any Issuer Written Communication and the Offering
Memorandum, any amendments, supplements and exhibits thereto or any document incorporated by reference therein; (d) the fees and expenses (including reasonable related fees and expenses of counsel to the Initial Purchasers) of qualifying the
Securities under the securities laws of the several jurisdictions as provided in
Section
4(f)
and of preparing, printing and distributing wrappers, “Blue Sky Memoranda” and “Legal Investment Surveys”, if
any; (e) all fees and expenses of the Trustee, registrar and transfer agent of the Securities; (f) any fees charged by rating agencies for rating the Securities; (g) all expenses and application fees incurred in connection with the
approval of the Securities for book-entry transfer by DTC; (h) all expenses and application fees related to the listing of the Underlying Securities on the NASDAQ GSM; and (i) all other costs and expenses incident to the Offering or the
performance of the obligations of the Company under this Agreement (including, without limitation, the fees and expenses of the Company’s counsel and the Company’s independent accountants and the travel and other expenses incurred by the
Company’s and Initial Purchasers’ personnel in connection with any “road show” including, without limitation, any expenses advanced by the Initial Purchasers on the Company’s behalf (which will be promptly reimbursed));
provided, however
, the Company shall not be obligated to pay any fees, disbursements and expenses of counsel to the Initial Purchasers pursuant to clause (d) of this
Section
5
in excess of $10,000 in the
aggregate.
6.
Conditions of Initial Purchasers’ Obligations.
The obligation of each Initial Purchaser to purchase the
Underwritten Securities on the Closing Date or the Option Securities on the Additional Closing Date, as the case may be, as provided herein is subject to the performance by the Company of its covenants and other obligations hereunder and to the
following additional conditions:
25
(a)
Representations and Warranties.
The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing Date or the Additional Closing Date, as the case may be; and the statements of the Company and its officers made in any certificates delivered pursuant to
this Agreement shall be true and correct on and as of the Closing Date or the Additional Closing Date, as the case may be.
(b)
Negative
Assurance
. The Representatives shall not have discovered and disclosed to the Company on or prior to the Closing Date and any Additional Closing Date that the Preliminary Offering Memorandum, any other Time of Sale Information or the Offering
Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Initial Purchasers, is material or omits to state any fact which, in the opinion of such counsel, is material and is
necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading.
(c)
Transaction
Documents
. All corporate proceedings and other legal matters incident to the authorization, form and validity of each of the Transaction Documents, the Preliminary Offering Memorandum, any other Time of Sale Information, each Issuer Written
Communication and the Offering Memorandum, and all other legal matters relating to the Transaction Documents and the transactions contemplated hereby and thereby shall be reasonably satisfactory to counsel for the Initial Purchasers, and the Company
shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d)
Opinion and
10b-5
Statement of Counsel for the Company.
Ropes and Gray LLP shall have
furnished to the Representatives such counsel’s written opinion and negative assurances statement, as counsel to the Company, addressed to the Initial Purchasers and dated the Closing Date, and any Additional Closing Date (if such date is other
than the Closing Date), in form and substance satisfactory to the Representatives.
(e)
Opinion of Intellectual Property Counsel for the
Company.
Nelson Mullins Riley & Scarborough, LLP shall have furnished to the Representatives such counsel’s written opinion and negative assurance statement, as intellectual property counsel to the Company, addressed to the Initial
Purchasers and dated the Closing Date, and any Additional Closing Date (if such date is other than the Closing Date), in form and substance satisfactory to the Representatives.
(f)
Opinion and
10b-5
Statement of Counsel for the Initial Purchasers.
The Initial Purchasers
shall have received from Goodwin Procter LLP, counsel for the Initial Purchasers, such opinion and negative assurances statement, dated the Closing Date and any Additional Closing Date (if such date is other than the Closing Date), with respect to
such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
26
(g)
Comfort Letter
. At the time of the execution of this Agreement, the Representatives
shall have received from KPMG LLP a letter, addressed to the Initial Purchasers, executed and dated such date, in form and substance satisfactory to the Representatives (A) confirming that they are an independent registered accounting firm with
respect to the Company and its subsidiaries within the meaning of the Securities Act and the rules and regulations thereunder and PCAOB and (B) stating the conclusions and findings of such firm, of the type ordinarily included in
accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial information contained or incorporated by reference in the Time of Sale Information and the Offering Memorandum.
(h)
Bring-Down Comfort Letter
. On the Closing Date and any Additional Closing Date (if such date is other than the Closing Date), the
Representatives shall have received a letter (the “
Bring-Down Letter
”) from KPMG LLP addressed to the Initial Purchasers and dated the Closing Date and any Additional Closing Date (if such date is other than the Closing Date)
confirming, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Time of Sale Information and the Offering
Memorandum, as the case may be, as of a date not more than three (3) business days prior to the date of the Bring-Down Letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort
letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representatives concurrently with the execution of this Agreement pursuant to
paragraph (g)
of this
Section
6
.
(i)
Officers’ Certificate.
The Company shall have furnished to the Representatives a
certificate, dated the Closing Date and any Additional Closing Date (if such date is other than the Closing Date), of its President and Chief Executive Officer and its Chief Financial Officer or a Vice President of Finance, each in his or her
capacity as an officer of the Company, stating that (i) such officers have carefully reviewed the Time of Sale Information and the Offering Memorandum and, in their opinion, the representations set forth in
Sections 3(b)
and
3(d)
hereof are true and correct, (ii) since the date of the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Time of Sale Information or the Offering Memorandum that has not been
so set forth therein, (iii) to the best of their knowledge after reasonable investigation, as of the Closing Date and any Additional Closing Date (if such date is other than the Closing Date), the representations and warranties of the Company
in this Agreement are true and correct, and the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and any Additional
Closing Date (if such date is other than the Closing Date) and (iv) there has not been, subsequent to the date of the most recent audited financial statements included or incorporated by reference in the Time of Sale Information, any material
adverse change in the financial position or results of operations of the Company and its subsidiaries or any change or development that, singly or in the aggregate, would involve a material adverse change or a prospective material adverse change, in
or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Offering Memorandum.
(j)
[Reserved.]
27
(k)
No Material Adverse Change.
Since the date of the latest audited financial statements
included in or incorporated by reference in the Time of Sale Information as of the date hereof, (i) neither the Company nor any of its subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute, otherwise than as set forth in the Time of Sale Information, and (ii) there shall not have been any material change in the capital stock or short-term or long-term
debt of the Company or any of its subsidiaries, or any material adverse change in or affecting the business, general affairs, management, financial position, prospects, shareholders’ equity or results of operations of the Company and its
subsidiaries otherwise than as set forth in the Time of Sale Information, the effect of which, in any such case described in clause (i) or (ii) of this
paragraph (k)
, is, in the judgment of the Representatives, so material and adverse as
to make it impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Information.
(l)
No Legal Impediment to Issuance.
No action shall have been taken and no statute, rule, regulation or order shall have been enacted,
adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Securities; and no injunction or order
of any federal, state or foreign court shall have been issued that would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Securities.
(m)
Market Conditions
. Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the
following: (i)(A) trading in securities generally on the New York Stock Exchange, NASDAQ GSM or the American Stock Exchange or in the
over-the-counter
market, or
(B) trading in any securities of the Company on any exchange or in the
over-the-counter
market, shall have been suspended or materially limited, or minimum or
maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have
become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the
United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to
make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Information and the Offering Memorandum.
(n)
Notification of Listing of Additional Shares
. The Company shall have filed a Notification: Listing of Additional Shares with the
NASDAQ GSM, if required to do so, and shall have received no objection thereto from the NASDAQ GSM.
28
(o)
Lock-up
Agreements
. The Representatives shall
have received the written agreements, substantially in the form of
Exhibit A
hereto, of the parties listed in
Schedule 3
to this Agreement.
(p)
DTC
. The Securities shall be eligible for clearance and settlement through DTC.
(q)
Additional Documents.
Prior to the Closing Date, the Company shall have furnished to the Representatives such good standing
certificates, secretary and officers’ certificates, or such other documents as the Representatives shall have reasonably requested.
The several obligations of the Initial Purchasers to purchase Option Securities, if any, hereunder are subject to the delivery to the
Representatives on the applicable Additional Closing Date of such documents as it may reasonably request with respect to the good standing of the Company, opinions, comfort letters, certificates, letters, documents, the due authorization and
issuance of the Option Securities to be sold on such Additional Closing Date, and other matters related to the issuance of such Option Securities.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
7.
Indemnification and Contribution
.
(a)
Indemnification of the Initial Purchasers.
The Company shall indemnify and hold
harmless each Initial Purchaser, each of their respective affiliates and each of its and their respective directors, officers, members, employees, representatives and agents and each person, if any, who controls such Initial Purchaser within the
meaning of Section 15 of the Securities Act of or Section 20 of the Exchange Act (collectively, the “
Initial Purchaser Indemnified Parties
,” and each an “
Initial Purchaser Indemnified Party
”) against any
loss, claim, damage, expense or liability whatsoever (or any action, investigation or proceeding in respect thereof), joint or several, to which such Initial Purchaser Indemnified Party may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, expense, liability, action, investigation or proceeding arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering
Memorandum, any of the other Time of Sale Information, any Issuer Written Communication, any road show as defined in Rule 433(h) under the Securities Act (a “
road show
”) or the Offering Memorandum, or in any amendment or supplement
thereto or document incorporated by reference therein or (ii) the omission or alleged omission to state in the Preliminary Offering Memorandum, any of the other Time of Sale Information, any Issuer Written Communication, any road show or the
Offering Memorandum, or in any amendment or supplement thereto or document incorporated by reference therein, a material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse the Initial
Purchaser Indemnified Party promptly upon demand for any legal fees or other expenses reasonably incurred by that Initial Purchaser Indemnified Party in connection with investigating, or preparing to defend, or defending against, settling,
compromising, or appearing as a third party witness in respect of, or otherwise incurred in connection with, any such loss, claim, damage, expense, liability, action,
29
investigation or proceeding, as such fees and expenses are incurred;
provided
,
however
, that the Company shall not be liable in any such case to the extent that any such loss,
claim, damage, expense or liability arises out of or is based upon an untrue statement or alleged untrue statement in, or omission or alleged omission from the Preliminary Offering Memorandum, any of the other Time of Sale Information, any Issuer
Written Communication, any road show or the Offering Memorandum, or in any such amendment or supplement thereto, made in reliance upon and in conformity with written information furnished to the Company by the Representatives by or on behalf of the
Initial Purchasers specifically for use therein, which information the parties hereto agree is limited to the Initial Purchasers’ Information (as defined in
Section
7(b)
hereof). This indemnity agreement is
not exclusive and will be in addition to any liability which the Company might otherwise have and shall not limit any rights or remedies which may otherwise be available at law or in equity to each Initial Purchaser Indemnified Party.
(b)
Indemnification of the Company.
Each Initial Purchaser, severally and not jointly, shall indemnify and hold harmless the
Company and its directors, its officers and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “
Company Indemnified
Parties
,” and each a “
Company Indemnified Party
”) against any loss, claim, damage, expense or liability whatsoever (or any action, investigation or proceeding in respect thereof), joint or several, to which such Company
Indemnified Party may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation or proceeding arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Offering Memorandum, any of the other Time of Sale Information, any Issuer Written Communication, any road show or the Offering Memorandum, or in any amendment or supplement thereto, or
(ii) the omission or alleged omission to state in the Preliminary Offering Memorandum, any of the other Time of Sale Information, any Issuer Written Communication, any road show or the Offering Memorandum, or in any amendment or supplement
thereto, a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the Company by the Representatives by or on behalf of any Initial Purchaser specifically for use therein, which information the parties hereto agree is limited to the Initial
Purchasers’ Information as defined in this
Section
7(b)
, and shall reimburse the Company Indemnified Party for any legal or other expenses reasonably incurred by such party in connection with investigating or preparing
to defend or defending against or appearing as third party witness in connection with any such loss, claim, damage, liability, action, investigation or proceeding, as such fees and expenses are incurred. Notwithstanding the provisions of this
Section
7(b)
, in no event shall any indemnity by any Initial Purchaser under this
Section
7(b)
exceed the total discount and commission received by such Initial Purchaser in connection with the
Offering. The parties hereto acknowledge and agree that, for all purposes of this Agreement, the “
Initial Purchasers’ Information
” consists solely of the statements concerning the Initial Purchasers contained in the sixth
paragraph, the third sentence of the seventh paragraph and the ninth paragraph, in each case, under the heading “Plan of Distribution” in the Time of Sale Information and the Offering Memorandum.
30
(c)
Notice and Procedures.
Promptly after receipt by an indemnified party under this
Section
7
of notice of the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under this
Section
7
, notify such
indemnifying party in writing of the commencement of that action;
provided
,
however
, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under this
Section
7
except to the extent it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and,
provided
,
further
, that the failure to notify an indemnifying
party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this
Section
7
. If any such action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense of such action with counsel reasonably
satisfactory to the indemnified party (which counsel shall not, except with the written consent of the indemnified party, be counsel to the indemnifying party). After notice from the indemnifying party to the indemnified party of its election
to assume the defense of such action, except as provided herein, the indemnifying party shall not be liable to the indemnified party under this
Section
7
for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense of such action other than reasonable costs of investigation;
provided
,
however
, that any indemnified party shall have the right to employ separate counsel in any such action and to
participate in the defense of such action but the fees and expenses of such counsel (other than reasonable costs of investigation) shall be at the expense of such indemnified party unless (i) the employment thereof has been specifically
authorized in writing by the Company in the case of a claim for indemnification under
Section
7(a)
or the Representatives in the case of a claim for indemnification under
Section
7(b)
, (ii) such
indemnified party shall have been advised by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party, or (iii) the indemnifying party has
failed to assume the defense of such action and employ counsel reasonably satisfactory to the indemnified party within a reasonable period of time after notice of the commencement of the action or the indemnifying party does not diligently defend
the action after assumption of the defense, in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of (or, in the case of a failure to diligently defend the action after assumption of the defense, to continue to defend) such action on behalf of such indemnified party and the indemnifying party shall be responsible
for legal or other expenses subsequently incurred by such indemnified party in connection with the defense of such action;
provided
,
however
, that the indemnifying party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for all such
indemnified parties (in addition to any local counsel), which firm shall be designated in writing by the Representatives if the indemnified parties under this
Section
7
consist of any Initial Purchaser Indemnified Party or
by the Company if the indemnified parties under this
Section
7
consist of any Company Indemnified Parties. Subject to this
Section
7(c)
, the amount payable by an indemnifying party under this
Section
7
shall include, but not be limited to, (x) reasonable legal fees and expenses of counsel to the indemnified party and any other expenses in investigating, or preparing to defend or defending against, or
appearing as a third party witness in respect of, or
31
otherwise incurred in connection with, any action, investigation, proceeding or claim, and (y) all amounts paid in settlement of any of the foregoing. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of judgment with respect to any pending or threatened action or any claim whatsoever, in respect of which indemnification or contribution
could be sought under this
Section
7
(whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each
indemnified party in form and substance reasonably satisfactory to such indemnified party from all liability arising out of such action or claim 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. Subject to the provisions of the following sentence, no indemnifying party shall be liable for settlement of any pending or threatened action or any claim whatsoever that is effected without its
written consent (which consent shall not be unreasonably withheld or delayed), but if settled with its written consent, if its consent has been unreasonably withheld or delayed or if there be a judgment for the plaintiff in any such matter, the
indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment. In addition, if at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated herein effected without its written consent if (i) such
settlement is entered into more than forty-five (45) days after receipt by such indemnifying party of the request for reimbursement, (ii) such indemnifying party shall have received notice of the terms of such settlement at least thirty
(30) days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement, unless the indemnifying party is
objecting in good faith to the amount of such fees and expenses.
(d)
Contribution; Limitation on Liability
. If the indemnification
provided for in this
Section
7
is unavailable or insufficient to hold harmless an indemnified party under
Section
7(a)
or
Section
7(b)
hereof, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount paid, payable or otherwise incurred by such indemnified party as a result of such loss, claim, damage, expense or liability (or any action, investigation or proceeding
in respect thereof), as incurred, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand and each of the Initial Purchasers on the other hand from the Offering, or (ii) if
the allocation provided by clause (i) of this
Section
7(d)
is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) of this
Section
7(d)
but also the relative fault of the Company on the one hand and each of the Initial Purchasers on the other with respect to the statements, omissions, acts or failures to act which resulted in such loss, claim,
damage, expense or liability (or any action, investigation or proceeding in respect thereof) as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and each of the Initial
Purchasers on the other with respect to the Offering shall be deemed to be in the same proportion as the total net proceeds from the Offering under this Agreement (before deducting expenses) received by the Company bear to the total underwriting
discount and commission received by the Initial Purchasers in connection with the Offering, as provided in this Agreement. The relative fault of the Company on the one hand and the Initial Purchasers on the other shall be determined by
reference to, among other things,
32
whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied 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, omission, act or failure to act;
provided
that the parties hereto
agree that the written information furnished to the Company by the Representatives by or on behalf of any Initial Purchaser for use in the Preliminary Offering Memorandum or the Offering Memorandum, or in any amendment or supplement thereto,
consists solely of the Initial Purchasers’ Information as defined in
Section
7(b)
above. The Company and the Initial Purchasers agree that it would not be just and equitable if contributions pursuant to this
Section
7(d)
were to be determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage, expense, liability, action, investigation or proceeding referred to above in this
Section
7(d)
shall be deemed to include, for purposes of this
Section
7(d)
, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending against or appearing as a third party witness in respect of, or
otherwise incurred in connection with, any such loss, claim, damage, expense, liability, action, investigation or proceeding. Notwithstanding the provisions of this
Section
7(d)
, no Initial Purchaser shall be required
to contribute any amount in excess of the total discount and commission received by such Initial Purchaser in connection with the Offering, less the amount of any damages which such Initial Purchaser has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement, omission or alleged omission, act or alleged act or failure to act or alleged failure to act. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
8.
Termination
. The obligations of the Initial Purchasers hereunder may be terminated by the Representatives, in their absolute discretion, by notice given to the Company prior to delivery of and payment for the Securities if, prior to the
Closing Date or, in the case of the Option Securities, prior to the Additional Closing Date, any of the events described in
Sections
6(k)
,
6(l)
or
6(m)
hereof have occurred or if the Initial Purchasers shall decline to
purchase the Securities for any reason permitted under this Agreement.
9.
Reimbursement of Initial Purchasers’ Expenses
.
Notwithstanding anything to the contrary in this Agreement, if (a) this Agreement shall have been terminated pursuant to
Section
8
hereof as a result of an event described in
Sections
6(k)
or
6(l)
or
6(m)(i)(B)
hereof, (b) the Company shall fail to tender the Securities for delivery to the Initial Purchasers for any reason not permitted under this Agreement, or (c) the sale of the Securities is not consummated because any
condition to the obligations of the Initial Purchasers set forth herein is not satisfied or because of the refusal, inability or failure on the part of the Company to perform any agreement herein or to satisfy any condition or to comply with the
provisions hereof, then, the Company shall reimburse the Initial Purchasers’
out-of-pocket
expenses in accordance with
Section
5
hereof
and, in addition, the Company shall reimburse the Initial Purchasers for the fees and expenses of the Initial Purchasers’ counsel and for all other accountable
out-of-pocket
expenses as shall have been reasonably incurred by them in connection with this Agreement and the proposed Offering, and promptly upon demand the Company
shall pay the full amount thereof to the Representatives on behalf of the Initial Purchasers.
33
10.
Effectiveness; Defaulting Initial Purchasers
. If, on the Closing Date or an Additional
Closing Date, as the case may be, any one or more of the Initial Purchasers shall fail or refuse to purchase Securities that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Securities which such defaulting
Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase is not more than
one-tenth
of the aggregate number of the Securities to be purchased on such date, the other Initial Purchasers
shall be obligated severally in the proportions that the number of Underwritten Securities set forth opposite their respective names in
Schedule 1
to this Agreement bears to the aggregate number of Underwritten Securities set forth opposite
the names of all such
non-defaulting
Initial Purchasers, or in such other proportions as you may specify, to purchase the Securities which such defaulting Initial Purchaser or Initial Purchasers agreed but
failed or refused to purchase on such date;
provided
that in no event shall the number of Securities that any Initial Purchaser has agreed to purchase pursuant to this Agreement be increased pursuant to this
Section
10
by an amount in excess of
one-ninth
of such number of Securities without the written consent of such Initial Purchaser. If, on the Closing Date, any Initial Purchaser
or Initial Purchasers shall fail or refuse to purchase Underwritten Securities and the aggregate number of Underwritten Securities with respect to which such default occurs is more than
one-tenth
of the
aggregate number of Underwritten Securities to be purchased on such date, and arrangements satisfactory to you and the Company for the purchase of such Underwritten Securities are not made within
thirty-six
(36) hours after such default, this Agreement shall terminate without liability on the part of any
non-defaulting
Initial Purchaser or the Company. In any such case either you or the Company shall
have the right to postpone the Closing Date, but in no event for longer than seven (7) days, in order that the required changes, if any, in the Time of Sale Information, the Offering Memorandum or in any other documents or arrangements may be
effected. If, on an Additional Closing Date, any Initial Purchaser or Initial Purchasers shall fail or refuse to purchase Option Securities and the aggregate number of Option Securities with respect to which such default occurs is more than
one-tenth
of the aggregate number of Option Securities to be purchased on such Additional Closing Date, the
non-defaulting
Initial Purchasers shall have the option to
(i) terminate their obligation hereunder to purchase the Option Securities to be sold on such Additional Closing Date or (ii) purchase not less than the number of Option Securities that such
non-defaulting
Initial Purchasers would have been obligated to purchase in the absence of such default. Any action taken under this paragraph shall not relieve any defaulting Initial Purchaser from
liability in respect of any default of such Initial Purchaser under this Agreement.
11.
Certain Agreements of the Initial
Purchasers
. Each Initial Purchaser hereby represents and agrees that it has not and will not use, authorize use of, refer to, or participate in the planning for use of, any written communication that constitutes an offer to sell or the
solicitation of an offer to buy the Securities other than (i) the Preliminary Offering Memorandum and the Offering Memorandum, (ii) a written communication that contains no “issuer information” (as defined in Rule 433(h)(2) under
the Securities Act) that was not included (including through incorporation by reference) in the Preliminary Offering Memorandum or the Offering Memorandum, (iii) any written communication listed on
Annex A
hereto or prepared pursuant to
Section
4(c)
above (including any electronic road show), (iv) any written
34
communication prepared by such Initial Purchaser and approved by the Company in advance in writing or (v) any written communication relating to or that contains the terms of the Securities
and/or other information that was included (including through incorporation by reference) in the Preliminary Offering Memorandum or the Offering Memorandum.
12.
Absence of Fiduciary Relationship
. The Company acknowledges and agrees that:
(a) Each Initial Purchaser’s responsibility to the Company is solely contractual in nature, each Initial Purchaser has been retained
solely to act as an initial purchaser in connection with the Offering and no fiduciary, advisory or agency relationship between the Company and such Initial Purchaser has been created in respect of any of the transactions contemplated by this
Agreement, irrespective of whether any of the Initial Purchasers has advised or is advising the Company on other matters;
(b) the price of
the Securities set forth in this Agreement was established by the Company following discussions and arms-length negotiations with the Representatives, and the Company is capable of evaluating and understanding, and understands and accepts, the
terms, risks and conditions of the transactions contemplated by this Agreement;
(c) it has been advised that each of the Initial
Purchasers and each of their respective affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Company and that the Initial Purchasers have no obligation to disclose such interests and
transactions to the Company by virtue of any fiduciary, advisory or agency relationship; and
(d) it waives, to the fullest extent
permitted by law, any claims it may have against the Initial Purchasers for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Initial Purchasers shall have no liability (whether direct or indirect) to the Company in
respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including shareholders, employees or creditors of the Company.
13.
Successors; Persons Entitled to Benefit of Agreement
. This Agreement shall inure to the benefit of and be binding upon the several
Initial Purchasers, the Company, and their respective successors and assigns. Notwithstanding the foregoing, the determination as to whether any condition in
Section
6
hereof shall have been satisfied, and the waiver of any
condition in
Section
6
hereof, may be made by the Representatives in their sole discretion, and any such determination or waiver shall be binding on each of the Initial Purchasers and shall not require the consent of any
Initial Purchaser. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, other than the persons mentioned in the preceding sentences, any legal or equitable right, remedy or claim under or in
respect of this Agreement, or any provisions herein contained, this Agreement and all conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of such persons and for the benefit of no other person; except
that the indemnities of the Company contained in this Agreement shall also be for the benefit of the Initial Purchaser Indemnified Parties and the several indemnities of the Initial Purchasers shall be for the benefit of the Company Indemnified
Parties. It is understood that each Initial Purchaser’s responsibility to the Company is solely contractual in nature and the Initial Purchasers do not owe the Company, or any other party, any fiduciary duty as a result of this Agreement.
35
14.
Survival
. The respective indemnities, covenants, agreements, representations,
warranties and other statements of the Company and the several Initial Purchasers, as set forth in this Agreement or made by them respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation made
by or on behalf of any Initial Purchaser, the Company or any person controlling any of them and shall survive delivery of and payment for the Securities. Notwithstanding any termination of this Agreement, including without limitation any
termination pursuant to
Section
8
hereof, the indemnity and contribution and reimbursement agreements contained in
Sections 7
and
9
hereof and the covenants, representations, warranties set forth in this
Agreement shall not terminate and shall remain in full force and effect at all times.
15.
Notices
. All statements, requests,
notices and agreements hereunder shall be in writing, and:
(a) if to the Representatives, shall be delivered or sent by mail, facsimile
transmission or email to J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179 (fax: (212)
622-8358);
Attention: Equity Syndicate Desk; and Goldman Sachs & Co. LLC, 200 West Street,
New York, New York 10282, Attention: Registration Department and the Legal Department, with a copy to the Legal Department, with an additional copy to Goodwin Procter LLP, Attention: Michael Maline, Fax: (617)
801-8626;
(b) if to the Company, shall be delivered or sent by mail, facsimile transmission or
email to: Sarepta Therapeutics, Inc., 215 First Street, Suite 7, Cambridge, MA 02142 Attention: David Howton, Senior V.P. and General Counsel, Fax: (857)
242-3708,
with a copy to Ropes & Gray LLP,
Prudential Tower, 800 Boylston Street, Boston, Massachusetts 02199, Attention: Paul Kinsella, Fax: (617)
235-0822;
provided, however
, that any notice to the Initial Purchasers pursuant to
Section
7
hereof shall be delivered
or sent by mail or facsimile transmission to the Representatives c/o J.P. Morgan Securities LLC and Goldman Sachs & Co. LLC at the addresses set forth above in this
Section
15
. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof, except that any such statement, request, notice or agreement delivered or sent by email shall take effect at the time of confirmation of receipt thereof by the recipient
thereof.
16.
Certain Defined Terms
. For purposes of this Agreement, (a) “
business day
” means any day on which the
NASDAQ GSM is open for trading, (b) “
knowledge
” means the knowledge of the executive officers of the Company after reasonable inquiry and (c) “
subsidiary
” has the meaning set forth in Rule 405 of the Securities Act
and the rules and regulations thereunder.
17.
Governing Law, Agent for Service and Jurisdiction
. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, including without limitation
Section 5-1401
of the New York General Obligations Law. No legal proceeding may be commenced,
prosecuted or continued in any court other than the courts of the
36
State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York, which courts shall have jurisdiction over the
adjudication of such matters, and the Company and the Initial Purchasers each hereby consent to the jurisdiction of such courts and personal service with respect thereto. The Company and the Initial Purchasers each hereby waive all right to
trial by jury in any legal proceeding (whether based upon contract, tort or otherwise) in any way arising out of or relating to this Agreement. The Company agrees that a final judgment in any such legal proceeding brought in any such court
shall be conclusive and binding upon the Company and the Initial Purchasers and may be enforced in any other courts in the jurisdiction of which the Company is or may be subject, by suit upon such judgment.
18.
Partial Unenforceability.
The invalidity or unenforceability of any section, paragraph, clause or provision of this Agreement shall
not affect the validity or enforceability of any other section, paragraph, clause or provision hereof. If any section, paragraph, clause or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be
deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
19.
General.
This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. In
this Agreement, the masculine, feminine and neuter genders and the singular and the plural include one another. The section headings in this Agreement are for the convenience of the parties only and will not affect the construction or
interpretation of this Agreement. This Agreement may be amended or modified, and the observance of any term of this Agreement may be waived, only by a writing signed by the Company and the Representatives.
20.
Research Analyst Independence
. The Company acknowledges that each Initial Purchaser’s research analysts and research
departments are required to be independent from its investment banking division and are subject to certain regulations and internal policies, and that such Initial Purchaser’s research analysts may hold views and make statements or investment
recommendations and/or publish research reports with respect to the Company and/or the Offering that differ from the views of their investment banking division. The Company hereby waives and releases, to the fullest extent permitted by law, any
claims that the Company may have against each Initial Purchaser with respect to any conflict of interest that may arise from the fact that the views expressed by its independent research analysts and research departments may be different from or
inconsistent with the views or advice communicated to the Company by such Initial Purchaser’s investment banking division. The Company acknowledges that each Initial Purchaser is a full service securities firm and as such from time to
time, subject to applicable securities laws, rules and regulations, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the Company; provided, however, that
nothing in this
Section
20
shall relieve any Initial Purchaser of any responsibility or liability it may otherwise bear in connection with activities in violation of applicable securities laws, rules or regulations.
37
21.
Compliance with USA Patriot Act
. In accordance with the requirements of the USA
Patriot Act (Title III of Pub. L.
107-56
(signed into law October 26, 2001)), the Initial Purchasers are required to obtain, verify and record information that identifies their respective clients,
including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Initial Purchasers to properly identify their respective clients.
22.
Counterparts
.
This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of
telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.
23.
Xtract Research LLC
. The Company hereby agrees that the Initial Purchasers may provide copies of the Preliminary Offering Memorandum and the Final Offering Memorandum relating to the offering of the Securities and any other agreements
or documents relating thereto, including, without limitation, trust indentures, to Xtract Research LLC (“
Xtract
”) following the completion of the offering for inclusion in an online research service sponsored by Xtract, access to
which is restricted to “qualified institutional buyers” as defined in Rule 144A under the Securities Act.
[Remainder of page
intentionally left blank]
38
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
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Very truly yours,
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SAREPTA THERAPEUTICS, INC.
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By
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/s/ Sandesh Mahatme
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Name: Sandesh Mahatme
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Title: Executive Vice President, Chief Financial Officer and Chief Business Officer
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[Signature Page to Purchase Agreement]
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Accepted: As of the date first written above
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J.P. MORGAN SECURITIES LLC
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GOLDMAN SACHS & CO. LLC
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For itself and on behalf of the
several Initial
Purchasers listed
in Schedule 1 hereto.
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By: J.P. MORGAN SECURITIES LLC
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By
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/s/ Santosh Sreenivasan
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Authorized Signatory
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By: GOLDMAN SACHS & CO. LLC
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By
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/s/ Daniel Young
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Authorized Signatory
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[Signature Page to Purchase Agreement]
Schedule 1
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Initial Purchaser
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Principal Amount
|
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J.P. Morgan Securities LLC
|
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$
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190,000,000
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Goldman Sachs & Co. LLC
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$
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190,000,000
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Credit Suisse Securities (USA) LLC
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$
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95,000,000
|
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Total
|
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$
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475,000,000
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Schedule 2
Subsidiaries
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(1)
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ST International Holdings, Inc.
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(3)
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Sarepta Securities Corp.
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(4)
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Sarepta International CV
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(5)
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AVI BioPharma International Limited
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(6)
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Sarepta International Holdings B.V.
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(7)
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Sarepta International Holdings GmbH.
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(8)
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Sarepta International Italy S.r.l.
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(9)
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Sarepta Therapeutics Ireland Limited
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(10)
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Sarepta International UK Ltd.
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Schedule 3
List of
Lock-Up
Parties
Douglas S. Ingram
Guriqbal Basi
Sandesh Mahatme
M. Kathleen Behrens, Ph.D.
Hans Wigzell, M.D., PhD
David Tyronne Howton, Jr.
Richard J. Barry
Claude Nicaise, M.D.
Alexander Cumbo
Shamim Ruff
Catherine Stehman-Breen
Annex A
a. Time of Sale Information
Term sheet
containing the terms of the Securities, substantially in the form of Annex B.
Annex B
PRICING TERM SHEET
DATED NOVEMBER 8, 2017
SAREPTA THERAPEUTICS, INC.
$475,000,000
1.500%
CONVERTIBLE SENIOR NOTES DUE 2024
The information in this pricing term sheet supplements Sarepta Therapeutics, Inc.’s preliminary offering
memorandum, dated November 7, 2017 (the “Preliminary Offering Memorandum”), and supersedes the information in the Preliminary Offering Memorandum 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 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. Sarepta Therapeutics, Inc. has increased the size of the offering to $475,000,000 (or $570,000,000 if the
initial purchasers’ over-allotment option to purchase additional Notes is exercised in full). The final offering memorandum relating to the offering will reflect conforming changes relating to such increase in the size of the offering.
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Issuer:
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Sarepta Therapeutics, Inc., a Delaware corporation.
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Ticker/Exchange for the Issuer’s Common Stock:
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“SRPT” / The NASDAQ Global Select Market.
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Notes:
|
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1.500% Convertible Senior Notes due 2024.
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Principal Amount:
|
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$475,000,000, plus up to an additional $95,000,000 principal amount pursuant to the initial purchasers’ over-allotment option to purchase additional Notes.
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Denominations:
|
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$1,000 and multiples of $1,000 in excess thereof.
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Maturity:
|
|
November 15, 2024, unless earlier repurchased or converted.
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Interest Rate:
|
|
1.500% per year, accruing from November 14, 2017.
|
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Interest Payment Dates:
|
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May 15 and November 15 of each year, beginning on May 15, 2018.
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Interest Record Dates:
|
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May 1 and November 1 of each year, immediately preceding any May 15 or November 15 interest payment date, as the case may be.
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Issue Price:
|
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The Notes will be issued at a price of 100% of their principal amount.
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Trade Date:
|
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November 9, 2017.
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Settlement Date:
|
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November 14, 2017.
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Last Reported Sale Price of the Issuer’s Common Stock on November 8, 2017:
|
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$52.44 per share.
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Initial Conversion Rate:
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13.6210 shares of the Issuer’s common stock per $1,000 principal amount of Notes.
|
|
|
|
|
Initial Conversion Price:
|
|
Approximately $73.42 per share of the Issuer’s common stock.
|
|
|
|
|
Conversion Premium:
|
|
Approximately 40% above the Last Reported Sale Price of the Issuer’s Common Stock on November 8, 2017.
|
|
|
|
|
Joint Book-Running Managers:
|
|
J.P. Morgan Securities LLC
Goldman
Sachs & Co. LLC
Credit Suisse Securities (USA) LLC
|
|
|
|
|
Additional Amounts:
|
|
If the Issuer consolidates with or merges with or into, or sells, conveys, transfers or leases all or substantially all of its properties and assets to, another company and the resulting, surviving or transferee company is not
organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (such company or any successor thereto, the “surviving entity”), then all payments made by the surviving entity under or
with respect to the Notes will be made without withholding or deduction for taxes unless the surviving entity is legally required to do so, in which case, subject to certain exceptions and limitations, the surviving entity will pay such additional
amounts as may be necessary so that the net amount received by beneficial owners of the Notes after such withholding or deduction shall equal the amount that would have been received in the absence of such withholding or deduction.
|
|
|
|
|
CUSIP Number (144A):
|
|
803607 AA8
|
|
|
|
|
ISIN (144A):
|
|
US803607AA85
|
|
|
|
|
|
Use of Proceeds:
|
|
The Issuer estimates that the net proceeds from the offering, after deducting the initial purchasers’ discount but before the
Issuer’s estimated offering expenses, will be approximately $463.1 million (or $555.8 million if the initial purchasers exercise their over-allotment option in full).
In connection with the pricing of the offering, the Issuer has entered into privately
negotiated capped call transactions with one or more of the initial purchasers or their respective affiliates or other financial institutions (the “option counterparties”). The Issuer intends to use approximately $42.4 million of the
net proceeds from the offering to pay the cost of the capped call transactions. If the initial purchasers exercise their over-allotment option, the Issuer expects to use a portion of the net proceeds from the sale of the additional Notes to enter
into additional capped call transactions with the option counterparties.
The Issuer
intends to use the remaining net proceeds to strengthen its balance sheet, improve its capital structure and to fund general corporate purposes. See “Use of proceeds” in the Preliminary Offering Memorandum.
|
|
|
|
|
Increase in Conversion Rate Upon Conversion in Connection with a Make-Whole Fundamental Change:
|
|
If the “effective date” of a “make-whole fundamental
change” (each as defined in the Preliminary Offering Memorandum) occurs prior to the maturity date of the Notes, the Issuer will increase the Conversion Rate for a holder who elects to convert its Notes in connection with such make-whole
fundamental change in certain circumstances, as described under “Description of notes—Conversion rights—Increase in conversion rate upon conversion upon a make-whole fundamental change” in the Preliminary Offering Memorandum.
The following table sets forth the number of additional shares by which the Conversion
Rate will be increased per $1,000 principal amount of Notes for conversions in connection with a make-whole fundamental change for each “stock price” and “effective date” set forth below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock Price
|
|
|
Effective Date
|
|
$52.44
|
|
|
$55.00
|
|
|
$65.00
|
|
|
$73.42
|
|
|
$100.00
|
|
|
$150.00
|
|
|
$200.00
|
|
|
$300.00
|
|
|
$400.00
|
|
|
November 14, 2017
|
|
|
5.4484
|
|
|
|
5.1636
|
|
|
|
3.8732
|
|
|
|
3.1167
|
|
|
|
1.7378
|
|
|
|
0.7383
|
|
|
|
0.3667
|
|
|
|
0.1049
|
|
|
|
0.0243
|
|
|
November 15, 2018
|
|
|
5.4484
|
|
|
|
5.1504
|
|
|
|
3.8164
|
|
|
|
3.0408
|
|
|
|
1.6474
|
|
|
|
0.6689
|
|
|
|
0.3195
|
|
|
|
0.0840
|
|
|
|
0.0157
|
|
|
November 15, 2019
|
|
|
5.4484
|
|
|
|
5.1281
|
|
|
|
3.7411
|
|
|
|
2.9428
|
|
|
|
1.5352
|
|
|
|
0.5869
|
|
|
|
0.2662
|
|
|
|
0.0623
|
|
|
|
0.0077
|
|
|
November 15, 2020
|
|
|
5.4484
|
|
|
|
5.0855
|
|
|
|
3.6330
|
|
|
|
2.8080
|
|
|
|
1.3895
|
|
|
|
0.4880
|
|
|
|
0.2060
|
|
|
|
0.0407
|
|
|
|
0.0014
|
|
|
November 15, 2021
|
|
|
5.4484
|
|
|
|
5.0280
|
|
|
|
3.4864
|
|
|
|
2.6265
|
|
|
|
1.2005
|
|
|
|
0.3709
|
|
|
|
0.1409
|
|
|
|
0.0211
|
|
|
|
0.0000
|
|
|
November 15, 2022
|
|
|
5.4484
|
|
|
|
4.8911
|
|
|
|
3.2314
|
|
|
|
2.3309
|
|
|
|
0.9263
|
|
|
|
0.2288
|
|
|
|
0.0739
|
|
|
|
0.0061
|
|
|
|
0.0000
|
|
|
November 15, 2023
|
|
|
5.4484
|
|
|
|
4.6615
|
|
|
|
2.7912
|
|
|
|
1.8278
|
|
|
|
0.5179
|
|
|
|
0.0796
|
|
|
|
0.0223
|
|
|
|
0.0005
|
|
|
|
0.0000
|
|
|
November 15, 2024
|
|
|
5.4484
|
|
|
|
4.5764
|
|
|
|
1.7090
|
|
|
|
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 prices in the table above or the effective date is between two effective dates in the table above, the number of additional shares by which the Conversion Rate will be increased
will be determined by a straight-line interpolation between the number of additional shares set forth for the higher and lower stock prices and the earlier and later effective dates, as applicable, based on a
365-day
year.
|
|
|
•
|
|
If the stock price is greater than $400.00 per share (subject to adjustment in the same manner as the stock prices set forth in the column headings of the table above as described in the Preliminary Offering
Memorandum), no additional shares will be added to the Conversion Rate.
|
|
|
•
|
|
If the stock price is less than $52.44 per share (subject to adjustment in the same manner as the stock prices set forth in the column headings of the table above as described in the Preliminary Offering Memorandum), no
additional shares will be added to the Conversion Rate.
|
Notwithstanding the foregoing, in no event will the Conversion Rate per $1,000
principal amount of Notes exceed 19.0694 shares of the Issuer’s common stock, subject to adjustment in the same manner as the Conversion Rate as set forth under “Description of notes—Conversion rights—Conversion rate
adjustments” in the Preliminary Offering Memorandum.
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 thereof. This communication does not constitute an offer to sell or the solicitation of an offer to buy any Notes in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in
such jurisdiction.
The Notes and any shares of the Issuer’s common stock issuable upon conversion of the Notes have not been and will not be
registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”), or any other securities laws, and may not be offered or sold within the United States or any other jurisdiction, except pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the Securities Act and any other applicable securities laws. The initial purchasers are initially offering the Notes only to persons reasonably believed to be qualified institutional
buyers as defined in, and in reliance on, Rule 144A under the Securities Act.
The Notes and any shares of the Issuer’s common stock issuable
upon conversion of 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 J.P. Morgan Securities LLC, telephone: (866)
803-9204,
or Goldman Sachs & Co. LLC, telephone: (866)
471-2526.
Any legends, disclaimers or other notices that may appear below are not applicable to this communication and should be disregarded. Such legends,
disclaimers or other notices have been automatically generated as a result of this communication having been sent via Bloomberg or another system.
[
Remainder of Page Intentionally Blank
]
Exhibit A
Form of
Lock-Up
Agreement
November 8, 2017
J.P. Morgan Securities LLC
Goldman Sachs & Co. LLC
As Representatives of the
several Initial
Purchasers named in Schedule 1 to the
Purchase Agreement referred to below
c/o J.P. Morgan Securities
LLC
383 Madison Avenue
New York, New York 10179
c/o Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
Ladies and Gentlemen:
The undersigned understands that J.P. Morgan Securities LLC and Goldman Sachs & Co. LLC, as representatives (the “
Representatives
”)
of the several Initial Purchasers (as defined below), proposes to enter into a Purchase Agreement (the “
Purchase Agreement
”) with Sarepta Therapeutics, Inc., a Delaware corporation (the “
Company
”), providing for the
offering (the “
Offering
”) by the several Initial Purchasers named in Schedule 1 to the Purchase Agreement (the “
Initial Purchasers
”), of convertible senior notes of the Company, which will be convertible into cash,
shares of Common Stock, par value $0.0001 per share, of the Company (the “
Common Stock
”) or a combination of cash and Common Stock, at the Company’s election.
To induce the Initial Purchasers to participate in the Offering and to continue their efforts in connection with the Offering, the undersigned hereby agrees
that, without the prior written consent of the Representatives, it will not, during the period commencing on the date hereof and ending 45 days after the date of the final offering memorandum (the “
Restricted Period
”) relating to
the Offering, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock beneficially owned (as such term is used in Rule
13d-3
of the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”)), by the undersigned or
any other securities so owned that are convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of
ownership of the Common Stock or such other securities that are convertible into or exercisable or exchangeable for Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise. The foregoing sentence shall not apply to (a) transactions relating to shares of Common Stock or other securities acquired in open market transactions after the completion
of the Offering, provided that no filing under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made in connection with subsequent sales of Common Stock or other
securities acquired in such open market transactions, (b) transfers of shares of Common Stock or any security convertible into Common Stock as a bona fide gift, (c) transfers of shares to the spouse, domestic partner, parent, child or
grandchild (each, an “
immediate family member
”) of the undersigned or to a trust formed for the benefit of an immediate family member, (d) distributions of shares of Common Stock or any security convertible into Common Stock to
limited partners or stockholders of the undersigned; provided that in the case of any transfer or distribution pursuant to clause (b), (c) or (d), (i) each transferee, donee or distributee shall sign and deliver a
lock-up
letter substantially in the form of this letter and (ii) no filing under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock, shall be
required or shall be voluntarily made during the Restricted Period, (e) transactions pursuant to any trading plan pursuant to Rule
10b5-1
under the Exchange Act (a
“10b5-1
plan”), entered into prior to the date hereof, (f) the establishment of a
10b5-1
plan for the transfer of shares of Common Stock or
(g) transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock that occurs by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement;
provided that, in the case of clause (f), (i) such plan does not provide for the transfer of Common Stock during the Restricted Period and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or
voluntarily made by or on behalf of the undersigned or the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Common Stock may be made under such plan during the
Restricted Period; provided, further that, in the case of clause (e), any filings required under Section 16(a) of the Exchange Act shall disclose by footnote that such transaction was pursuant to a
10b5-1
Plan. In addition, the undersigned agrees that, without the prior written consent of the Representatives, it will not, during the Restricted Period, make any demand for or exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common Stock. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of
the undersigned’s shares of Common Stock except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the
Initial Purchasers are relying upon this agreement in proceeding toward consummation of the Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal
representatives, successors and assigns.
Whether or not the Offering actually occurs depends on a number of factors, including market conditions. Any
Offering will only be made pursuant to a Purchase Agreement, the terms of which are subject to negotiation between the Company and the Representatives.
This Letter Agreement and any claim, controversy or dispute arising under or related to this Letter Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the conflict of laws principles thereof.
[
Signature page follows
]
|
|
|
|
|
Very truly yours,
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
Title:
|
[Signature Page to Lock-Up Agreement]
Exhibit 4.1
EXECUTION VERSION
SAREPTA THERAPEUTICS, INC.,
as
Issuer
AND
U.S. BANK
NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of
November 14, 2017
1.50% Convertible Senior Notes due 2024
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
P
AGE
|
|
|
|
|
|
ARTICLE 1
|
|
|
|
|
D
EFINITIONS
|
|
|
|
|
|
|
|
Section 1.01
. Definitions
|
|
|
1
|
|
|
Section 1.02
. References to Interest
|
|
|
13
|
|
|
|
|
|
ARTICLE 2
|
|
|
|
|
I
SSUE
, D
ESCRIPTION
, E
XECUTION
, R
EGISTRATION
AND
E
XCHANGE
OF
N
OTES
|
|
|
|
|
|
|
|
Section 2.01
. Designation and Amount
|
|
|
13
|
|
|
Section 2.02
. Form of Notes
|
|
|
13
|
|
|
Section 2.03
. Date and Denomination of Notes; Payments of Interest and Defaulted
Amounts
|
|
|
14
|
|
|
Section 2.04
. Execution, Authentication and Delivery of Notes
|
|
|
15
|
|
|
Section 2.05
. Exchange and Registration of Transfer of Notes; Restrictions on Transfer;
Depositary
|
|
|
16
|
|
|
Section 2.06
. Mutilated, Destroyed, Lost or Stolen Notes
|
|
|
23
|
|
|
Section 2.07
. Temporary Notes
|
|
|
24
|
|
|
Section 2.08
. Cancellation of Notes Paid, Converted, Etc.
|
|
|
24
|
|
|
Section 2.09
. CUSIP Numbers
|
|
|
25
|
|
|
Section 2.10
. Additional Notes; Repurchases
|
|
|
25
|
|
|
|
|
|
ARTICLE 3
|
|
|
|
|
S
ATISFACTION
AND
D
ISCHARGE
|
|
|
|
|
|
|
|
Section 3.01
. Satisfaction and Discharge
|
|
|
25
|
|
|
|
|
|
ARTICLE 4
|
|
|
|
|
P
ARTICULAR
C
OVENANTS
OF
THE
C
OMPANY
|
|
|
|
|
|
|
|
Section 4.01
. Payment of Principal and Interest
|
|
|
26
|
|
|
Section 4.02
. Maintenance of Office or Agency
|
|
|
26
|
|
|
Section 4.03
. Appointments to Fill Vacancies in Trustee’s Office
|
|
|
26
|
|
|
Section 4.04
. Provisions as to Paying Agent
|
|
|
27
|
|
|
Section 4.05
. Existence
|
|
|
28
|
|
|
Section 4.06
. Rule 144A Information Requirement and Annual Reports
|
|
|
28
|
|
|
Section 4.07
. Stay, Extension and Usury Laws
|
|
|
30
|
|
|
Section 4.08
. Compliance Certificate; Statements as to Defaults
|
|
|
30
|
|
|
Section 4.09
. Further Instruments and Acts
|
|
|
30
|
|
|
Section 4.10
. Additional Amounts
|
|
|
30
|
|
i
|
|
|
|
|
|
|
|
|
|
ARTICLE 5
|
|
|
|
|
L
ISTS
OF
H
OLDERS
AND
R
EPORTS
BY
THE
C
OMPANY
AND
THE
T
RUSTEE
|
|
|
|
|
|
|
|
Section 5.01
. Lists of Holders
|
|
|
33
|
|
|
Section 5.02
. Preservation and Disclosure of Lists
|
|
|
33
|
|
|
|
|
|
ARTICLE 6
|
|
|
|
|
D
EFAULTS
AND
R
EMEDIES
|
|
|
|
|
|
|
|
Section 6.01
. Events of Default
|
|
|
33
|
|
|
Section 6.02.
Acceleration; Rescission and Annulment
|
|
|
34
|
|
|
Section 6.03.
Additional Interest
|
|
|
35
|
|
|
Section 6.04
. Payments of Notes on Default; Suit Therefor
|
|
|
36
|
|
|
Section 6.05
. Application of Monies Collected by Trustee
|
|
|
38
|
|
|
Section 6.06
. Proceedings by Holders
|
|
|
38
|
|
|
Section 6.07
. Proceedings by Trustee
|
|
|
39
|
|
|
Section 6.08
. Remedies Cumulative and Continuing
|
|
|
39
|
|
|
Section 6.09
. Direction of Proceedings and Waiver of Defaults by Majority of
Holders
|
|
|
40
|
|
|
Section 6.10
. Notice of Defaults
|
|
|
40
|
|
|
Section 6.11
. Undertaking to Pay Costs
|
|
|
41
|
|
|
|
|
|
ARTICLE 7
|
|
|
|
|
C
ONCERNING
THE
T
RUSTEE
|
|
|
|
|
|
|
|
Section 7.01
. Duties and Responsibilities of Trustee
|
|
|
41
|
|
|
Section 7.02
. Reliance on Documents, Opinions, Etc.
|
|
|
43
|
|
|
Section 7.03
. No Responsibility for Recitals, Etc.
|
|
|
45
|
|
|
Section 7.04
. Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note
Registrar May Own Notes
|
|
|
45
|
|
|
Section 7.05
. Monies and Shares of Common Stock to Be Held in Trust
|
|
|
45
|
|
|
Section 7.06
. Compensation and Expenses of Trustee
|
|
|
45
|
|
|
Section 7.07
. Officer’s Certificate as Evidence
|
|
|
46
|
|
|
Section 7.08
. Eligibility of Trustee
|
|
|
46
|
|
|
Section 7.09
. Resignation or Removal of Trustee
|
|
|
46
|
|
|
Section 7.10
. Acceptance by Successor Trustee
|
|
|
47
|
|
|
Section 7.11
. Succession by Merger, Etc.
|
|
|
48
|
|
|
Section 7.12
. Trustee’s Application for Instructions from the Company
|
|
|
48
|
|
|
|
|
|
ARTICLE 8
|
|
|
|
|
C
ONCERNING
THE
H
OLDERS
|
|
|
|
|
|
|
|
Section 8.01
. Action by Holders
|
|
|
49
|
|
|
Section 8.02
. Proof of Execution by Holders
|
|
|
49
|
|
|
Section 8.03
. Who Are Deemed Absolute Owners
|
|
|
49
|
|
|
Section 8.04
. Company-Owned Notes Disregarded
|
|
|
50
|
|
|
Section 8.05
. Revocation of Consents; Future Holders Bound
|
|
|
50
|
|
ii
|
|
|
|
|
|
|
ARTICLE 9
|
|
|
|
|
H
OLDERS
’ M
EETINGS
|
|
|
|
|
|
|
|
Section 9.01
. Purpose of Meetings
|
|
|
51
|
|
|
Section 9.02
. Call of Meetings by Trustee
|
|
|
51
|
|
|
Section 9.03
. Call of Meetings by Company or Holders
|
|
|
51
|
|
|
Section 9.04
. Qualifications for Voting
|
|
|
52
|
|
|
Section 9.05
. Regulations
|
|
|
52
|
|
|
Section 9.06
. Voting
|
|
|
52
|
|
|
Section 9.07
. No Delay of Rights by Meeting
|
|
|
53
|
|
|
|
|
|
ARTICLE 10
|
|
|
|
|
S
UPPLEMENTAL
I
NDENTURES
|
|
|
|
|
|
|
|
Section 10.01
. Supplemental Indentures Without Consent of Holders
|
|
|
53
|
|
|
Section 10.02
. Supplemental Indentures with Consent of Holders
|
|
|
54
|
|
|
Section 10.03
. Effect of Supplemental Indentures
|
|
|
55
|
|
|
Section 10.04
. Notation on Notes
|
|
|
55
|
|
|
Section 10.05
. Evidence of Compliance of Supplemental Indenture to Be Furnished
Trustee
|
|
|
55
|
|
|
|
|
|
ARTICLE 11
|
|
|
|
|
C
ONSOLIDATION
, M
ERGER
, S
ALE
, C
ONVEYANCE
AND
L
EASE
|
|
|
|
|
|
|
|
Section 11.01
. Company May Consolidate, Etc. on Certain Terms
|
|
|
55
|
|
|
Section 11.02
. Successor Corporation to Be Substituted
|
|
|
56
|
|
|
Section 11.03
. Opinion of Counsel to Be Given to Trustee
|
|
|
57
|
|
|
|
|
|
ARTICLE 12
|
|
|
|
|
I
MMUNITY
OF
I
NCORPORATORS
, S
TOCKHOLDERS
, O
FFICERS
AND
D
IRECTORS
|
|
|
|
|
|
|
|
Section 12.01
. Indenture and Notes Solely Corporate Obligations
|
|
|
57
|
|
|
|
|
|
ARTICLE 13
|
|
|
|
|
[I
NTENTIONALLY
O
MITTED
]
|
|
|
|
|
|
|
|
ARTICLE 14
|
|
|
|
|
|
C
ONVERSION
OF
N
OTES
|
|
|
|
|
|
|
|
Section 14.01
. Conversion Privilege
|
|
|
57
|
|
|
Section 14.02
. Conversion Procedure; Settlement Upon Conversion
|
|
|
60
|
|
|
Section 14.03
. Increased Conversion Rate Applicable to Certain Notes Surrendered in
Connection with Make-Whole Fundamental Changes
|
|
|
64
|
|
|
Section 14.04
. Adjustment of Conversion Rate
|
|
|
66
|
|
|
Section 14.05
. Adjustments of Prices
|
|
|
76
|
|
|
Section 14.06
. Shares to Be Fully Paid
|
|
|
76
|
|
iii
|
|
|
|
|
|
|
Section 14.07
. Effect of Recapitalizations, Reclassifications and Changes of the Common
Stock
|
|
|
76
|
|
|
Section 14.08
. Certain Covenants
|
|
|
78
|
|
|
Section 14.09
. Responsibility of Trustee
|
|
|
78
|
|
|
Section 14.10
. Notice to Holders Prior to Certain Actions
|
|
|
79
|
|
|
Section 14.11.
Stockholder Rights Plans
|
|
|
80
|
|
|
Section 14.12
. Exchange in Lieu of Conversion
|
|
|
80
|
|
|
|
|
|
ARTICLE 15
|
|
|
|
|
R
EPURCHASE
OF
N
OTES
AT
O
PTION
OF
H
OLDERS
|
|
|
|
|
|
|
|
Section 15.01
. [Intentionally Omitted]
|
|
|
81
|
|
|
Section 15.02
. Repurchase
at Option of Holders Upon a Fundamental
Change
|
|
|
81
|
|
|
Section 15.03
. Withdrawal of Fundamental Change Repurchase Notice
|
|
|
83
|
|
|
Section 15.04.
Deposit of Fundamental Change Repurchase Price
|
|
|
84
|
|
|
Section 15.05.
Covenant to Comply with Applicable Laws Upon Repurchase of
Notes
|
|
|
84
|
|
|
Section 15.06.
Exchange in Lieu of Repurchase
|
|
|
85
|
|
|
|
|
|
ARTICLE 16
|
|
|
|
|
N
O
R
EDEMPTION
|
|
|
|
|
|
|
|
Section 16.01.
No Redemption
|
|
|
85
|
|
|
|
|
|
ARTICLE 17
|
|
|
|
|
M
ISCELLANEOUS
P
ROVISIONS
|
|
|
|
|
|
|
|
Section 17.01
. Provisions Binding on Company’s Successors
|
|
|
86
|
|
|
Section 17.02
. Official Acts by Successor Corporation
|
|
|
86
|
|
|
Section 17.03
. Addresses for Notices, Etc.
|
|
|
86
|
|
|
Section 17.04
. Governing Law; Jurisdiction
|
|
|
87
|
|
|
Section 17.05
. Evidence of Compliance with Conditions Precedent; Certificates and Opinions
of Counsel to Trustee
|
|
|
87
|
|
|
Section 17.06
. Legal Holidays
|
|
|
87
|
|
|
Section 17.07
. No Security Interest Created
|
|
|
88
|
|
|
Section 17.08
. Benefits of Indenture
|
|
|
88
|
|
|
Section 17.09
. Table of Contents, Headings, Etc.
|
|
|
88
|
|
|
Section 17.10
. Authenticating Agent
|
|
|
88
|
|
|
Section 17.11
. Execution in Counterparts
|
|
|
89
|
|
|
Section 17.12
. Severability
|
|
|
89
|
|
|
Section 17.13
. Waiver of Jury Trial
|
|
|
89
|
|
|
Section 17.14
. Force Majeure
|
|
|
89
|
|
|
Section 17.15
. Calculations
|
|
|
90
|
|
|
Section 17.16.
USA PATRIOT Act
|
|
|
90
|
|
|
Section 17.17.
Tax Withholding
|
|
|
90
|
|
EXHIBIT
|
|
|
|
|
|
|
|
|
Exhibit A
|
|
Form of Note
|
|
|
A-1
|
|
iv
INDENTURE dated as of November 14, 2017 between SAREPTA THERAPEUTICS, INC., a Delaware
corporation, as issuer (the “
Company
,” as more fully set forth in Section 1.01) and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (the “
Trustee
,” as more fully set forth in
Section 1.01).
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issuance of its 1.50% Convertible Senior Notes due 2024 (the
“
Notes
”), initially in an aggregate principal amount not to exceed $570,000,000, and in order to provide the terms and conditions upon which the Notes are to be authenticated, issued and delivered, the Company has duly authorized
the execution and delivery of this Indenture; and
WHEREAS, the Form of Note, the certificate of authentication to be borne by each Note,
the Form of Notice of Conversion, the Form of Fundamental Change Repurchase Notice and the Form of Assignment and Transfer to be borne by the Notes are to be substantially in the forms hereinafter provided; and
WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee or a
duly authorized authenticating agent, as provided in this Indenture, the valid, binding and legal obligations of the Company, and this Indenture the valid, binding and legal agreement of the Company and the Trustee, have been done and performed, and
the execution of this Indenture and the issuance hereunder of the Notes have in all respects been duly authorized.
NOW, THEREFORE, THIS
INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes are, and are to be, authenticated, issued
and delivered, and in consideration of the premises and of the purchase and acceptance of the Notes by the Holders thereof, the Company covenants and agrees with the Trustee for the equal and proportionate benefit of the respective Holders from time
to time of the Notes (except as otherwise provided below), as follows:
Section 1.01
. Definitions.
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01. The words “herein,”
“hereof,” “hereunder” and words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article include the plural as well as the singular.
“
1% provision
” shall have the meaning specified in Section 14.04(g).
“
Additional Amounts
” shall have the meaning specified in Section 4.10(a).
“
Additional Interest
” means all amounts, if any, payable pursuant to Section 4.06(d), Section 4.06(e) and
Section 6.03, as applicable.
“
Additional Shares
” shall have the meaning specified in Section 14.03(a).
“
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 specified Person means the power to direct or cause the direction of 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. Notwithstanding anything
to the contrary herein, the determination of whether one Person is an “
Affiliate
” of another Person for purposes of this Indenture shall be made based on the facts at the time such determination is made or required to be made, as
the case may be, hereunder.
“
Applicable Procedures
” means, with respect to a Depositary, as to any matter at any time,
the policies and procedures of such Depositary, if any, that are applicable to such matter at such time.
“
Bid Solicitation
Agent
” means the Company or the Person appointed by the Company to solicit bids for the Trading Price of the Notes in accordance with Section 14.01(b)(i). The Company shall initially act as the Bid Solicitation Agent.
“
Board of Directors
” means the board of directors of the Company or a committee of such board duly authorized to act for it
hereunder.
“
Board Resolution
” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors, and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“
Business Day
” means, with respect to any Note, any day other than a Saturday, a Sunday or a day on which the Federal Reserve
Bank of New York is authorized or required by law or executive order to close or be closed.
“
Capital Stock
” means, for
any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock issued by that entity;
provided
that debt securities that are convertible into
or exchangeable for Capital Stock shall not constitute Capital Stock prior to their conversion or exchange, as the case may be.
“
Cash Settlement
” shall have the meaning specified in Section 14.02(a).
“
Clause A Distribution
” shall have the meaning specified in Section 14.04(c).
2
“
Clause B Distribution
” shall have the meaning specified in
Section 14.04(c).
“
Clause C Distribution
” shall have the meaning specified in Section 14.04(c).
“
close of business
” means 5:00 p.m. (New York City time).
“
Combination Settlement
” shall have the meaning specified in Section 14.02(a).
“
Commission
” means the U.S. Securities and Exchange Commission.
“
Common Equity
” of any Person means Capital Stock of such Person that is generally entitled (a) to vote in the election
of directors of such Person or (b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person.
“
Common Stock
” means the common stock of the Company, par value $0.0001 per share, at the date of this Indenture, subject to
Section 14.07.
“
Company
” shall have the meaning specified in the first paragraph of this Indenture, and subject to
the provisions of Article 11, shall include its successors and assigns.
“
Company Order
” means a written order of the
Company, signed on behalf of the Company by an Officer.
“
Conversion Agent
” shall have the meaning specified in
Section 4.02.
“
Conversion Date
” shall have the meaning specified in Section 14.02(c).
“
Conversion
Exchange Election
” shall have the meaning specified in Section 14.12.
“
Conversion Obligation
” shall have the meaning specified in Section 14.01(a).
“
Conversion Price
” means as of any time, $1,000,
divided by
the Conversion Rate as of such time.
“
Conversion Rate
” shall have the meaning specified in Section 14.01(a).
“
Corporate Event
” shall have the meaning specified in Section 14.01(b)(iii).
“
Corporate Trust Office
” means the corporate trust office of the Trustee at which at any time its corporate trust business
shall be administered, which office at the date hereof is located at One Federal Street, 3rd Floor, Boston, MA 02110, Attention: Karen R. Beard, Vice President, or such other address as the Trustee may designate from time to time by notice to the
Holders and the Company, or the principal corporate trust office of any successor trustee (or such other address as such successor trustee may designate from time to time by notice to the Holders and the Company).
3
“
Custodian
” means the Trustee, as custodian for The Depository Trust Company,
with respect to the Global Notes, or any successor entity thereto.
“
Daily Conversion Value
” means, for each of the 40
consecutive Trading Days during the Observation Period, 2.5% of the product of (a) the Conversion Rate on such Trading Day and (b) the Daily VWAP for such Trading Day.
“
Daily Measurement Value
” means the Specified Dollar Amount (if any),
divided by
40.
“
Daily Settlement Amount
,” for each of the 40 consecutive Trading Days during the Observation Period, shall consist of:
(a) cash in an amount equal to the lesser of (i) the Daily Measurement Value and (ii) the Daily Conversion Value on such Trading Day;
and
(b) if the Daily Conversion Value on such Trading Day exceeds the Daily Measurement Value, a number of shares of Common Stock equal to
(i) the difference between the Daily Conversion Value and the Daily Measurement Value,
divided by
(ii) the Daily VWAP for such Trading Day.
“
Daily VWAP
” means, for each of the 40 consecutive Trading Days during the relevant Observation Period, the per share
volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “SRPT <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled
open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of the Common Stock on such Trading Day determined, using
a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by the Company). The “
Daily VWAP
” shall be determined without regard to after-hours trading or any other
trading outside of the regular trading session trading hours. On or after the occurrence of a Share Exchange Event, the “
Daily VWAP
” of a unit of Reference Property on any date shall be determined in accordance with the two
immediately preceding sentences except that (i) in the case of a Share Exchange Event in connection with which holders of Common Stock receive only cash as set forth in Section 14.07(a), the “
Daily VWAP
” shall be equal to
the per share amount of cash received by holders of Common Stock in such Share Exchange Event, (ii) in the case of a Share Exchange Event in connection with which holders of Common Stock receive a type of consideration other than cash or common
stock (or, if applicable, American depositary receipts, ordinary shares or other common equity interests) as set forth in Section 14.07(a), the “
Daily VWAP
” shall be the fair market value of such unit of Reference Property
determined by a nationally recognized independent investment banking firm retained for this purpose by the Company and (iii) in the case of a Share Exchange Event in connection with which holders of Common Stock receive a combination of common
stock (or, if applicable, American depositary receipts, ordinary shares or other common equity interests), cash and/or a type of consideration of the kind described in clause (ii), the “
Daily VWAP
” shall be equal to the sum of
values of each component or portion of such unit of Reference Property determined in accordance with the two immediately preceding sentences, clause (i) and/or clause (ii), as the case may be.
4
“
Default
” means any event that is, or after notice or passage of time, or both,
would be, an Event of Default.
“
Defaulted Amounts
” means any amounts on any Note (including, without limitation, the
Fundamental Change Repurchase Price, principal and interest) that are payable but are not punctually paid or duly provided for.
“
Depositary
” means, with respect to each Global Note, the Person specified in Section 2.05(c) as the Depositary with
respect to such Notes, 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.
“
Distributed Property
” shall have the meaning specified in Section 14.04(c).
“
Effective Date
” shall have the meaning specified in Section 14.03(c), except that, as used in Section 14.04 and
Section 14.05, “
Effective Date
” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, reflecting the relevant share split or share combination, as
applicable.
“
Event of Default
” shall have the meaning specified in Section 6.01.
“
Ex-Dividend
Date
” means the first date on which shares of the Common Stock trade on
the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of Common Stock on such exchange or market (in the
form of due bills or otherwise) as determined by such exchange or market.
“
Exchange Act
” means the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“
Expiration Date
” shall have the meaning
specified in Section 14.04(e).
“
FATCA
” shall have the meaning specified in Section 4.10(a)(i)(D).
“
Form of Assignment and Transfer
” means the “Form of Assignment and Transfer” attached as Attachment 3 to the Form
of Note attached hereto as Exhibit A.
“
Form of Fundamental Change Repurchase Notice
” means the “Form of Fundamental
Change Repurchase Notice” attached as Attachment 2 to the Form of Note attached hereto as Exhibit A.
“
Form of Note
”
means the “Form of Note” attached hereto as Exhibit A.
“
Form of Notice of Conversion
” means the “Form of
Notice of Conversion” attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.
“
Fundamental
Change
” shall be deemed to have occurred at the time after the Notes are originally issued if any of the following occurs:
5
(a) a “person” or “group” within the meaning of Section 13(d) of the
Exchange Act, other than the Company, its Wholly Owned Subsidiaries and the employee benefit plans of the Company and its Wholly Owned Subsidiaries, has become the direct or indirect “beneficial owner,” as defined in Rule
13d-3
under the Exchange Act, of the Common Stock representing more than 50% of the voting power of the Common Stock;
(b) the consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a
subdivision or combination) as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets; (B) any share exchange, consolidation or merger of the Company pursuant to which the
Common Stock will be converted into cash, securities or other property or assets; or (C) any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and
its Subsidiaries, taken as a whole, to any Person other than one of the Company’s Wholly Owned Subsidiaries;
provided, however
, that a transaction described in clause (B) in which the holders of all classes of the Company’s
Common Equity immediately prior to such transaction own, directly or indirectly, more than 50% of all classes of Common Equity of the continuing or surviving company or transferee or the parent thereof immediately after such transaction in
substantially the same proportions as such ownership immediately prior to such transaction shall not be a Fundamental Change pursuant to this clause (b);
(c) the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; or
(d) the Common Stock (or other common stock, American depositary receipts, ordinary shares or other common equity interests underlying the
Notes) 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 any of their respective successors);
provided
,
however
, that a transaction or transactions described in clause (a) or clause (b) above shall not constitute a Fundamental
Change, if at least 90% of the consideration received or to be received by the common stockholders of the Company, excluding cash payments for fractional shares, in connection with such transaction or transactions consists of shares of common stock,
American depositary receipts, ordinary shares or other common equity interests, in any such case, that are listed or quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their
respective successors) or will be so listed or quoted when issued or exchanged in connection with such transaction or transactions and as a result of such transaction or transactions the Notes become convertible into such consideration, excluding
cash payments for fractional shares (subject to the provisions of Section 14.02(a)).
If any transaction in which the Common Stock is replaced by the
securities of another entity occurs, following completion of any related Make-Whole Fundamental Change Period (or, in the case of a transaction that would have been a Fundamental Change or a Make-Whole Fundamental Change but for the
proviso
in the paragraph immediately following clause (d) of this definition, following the effective date of such transaction) references to the Company in this definition shall instead be references to such other entity.
6
“
Fundamental Change Company Notice
” shall have the meaning specified in
Section 15.02(c).
“
Fundamental Change Repurchase Date
” shall have the meaning specified in Section 15.02(a).
“
Fundamental Change Repurchase Notice
” shall have the meaning specified in Section 15.02(b)(i).
“
Fundamental Change Repurchase Price
” shall have the meaning specified in Section 15.02(a).
“
Global Note
” shall have the meaning specified in Section 2.05(b).
“
Holder
,” as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), means any
Person in whose name at the time a particular Note is registered on the Note Register.
“
Indenture
” means this instrument
as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented.
“
Interest Payment
Date
” means each May 15 and November 15 of each year, beginning on May 15, 2018.
“
Last Reported Sale
Price
” of the Common Stock (or other security for which a closing sale price must be determined) 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 (or such other security)
is traded. If the Common Stock (or such other security) is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “
Last Reported Sale Price
” shall be the last quoted bid price for the
Common Stock (or such other security) 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 (or such other security) is not so quoted, the “
Last Reported Sale Price
” shall be the average of the
mid-point
of the last bid and ask prices for the Common Stock (or such other
security) on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose. The “
Last Reported Sale Price
” shall be determined without regard to
after-hours trading or any other trading outside of the regular trading session trading hours. On or after the occurrence of a Share Exchange Event, the “
Last Reported Sale Price
” of a unit of Reference Property on any date shall be
determined in accordance with the four immediately preceding sentences except that (i) in the case of a Share Exchange Event in connection with which holders of Common Stock receive only cash as set forth in Section 14.07(a), the
“
Last Reported Sale Price
” shall be equal to the per share amount of cash received by holders of
7
Common Stock in such Share Exchange Event, (ii) in the case of a Share Exchange Event in connection with which holders of Common Stock receive a type of consideration other than cash or
common stock (or, if applicable, American depositary receipts, ordinary shares or other common equity interests) as set forth in Section 14.07(a), the “
Last Reported Sale Price
” shall be the fair market value of such unit of
Reference Property determined by a nationally recognized independent investment banking firm retained for this purpose by the Company and (iii) in the case of a Share Exchange Event in connection with which holders of Common Stock receive a
combination of common stock (or, if applicable, American depositary receipts, ordinary shares or other common equity interests), cash and/or a type of consideration of the kind described in clause (ii), the “
Last Reported Sale
Price
” shall be equal to the sum of values of each component or portion of such unit of Reference Property determined in accordance with the four immediately preceding sentences, clause (i) and/or clause (ii), as the case may be.
“
Make-Whole Fundamental Change
” means any transaction or event that constitutes a Fundamental Change (as defined above and
determined after giving effect to any exceptions to or exclusions from such definition, but without regard to the
proviso
in clause (b) of the definition thereof).
“
Make-Whole Fundamental Change Period
” shall have the meaning specified in Section 14.03(a).
“
Market Disruption Event
” means, for the purposes of determining amounts due upon conversion (a) a failure by the
primary U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted for trading to open for trading during its regular trading session or (b) the occurrence or existence prior to 1:00 p.m., New York
City time, on any Scheduled Trading Day for the Common Stock for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits
permitted by the relevant stock exchange or otherwise) in the Common Stock or in any options contracts or futures contracts traded on any U.S. exchange relating to the Common Stock.
“
Maturity Date
” means November 15, 2024.
“
Measurement Period
” shall have the meaning specified in Section 14.01(b)(i).
“
Note
” or “
Notes
” shall have the meaning specified in the first paragraph of the recitals of this Indenture.
“
Note Register
” shall have the meaning specified in Section 2.05(a).
“
Note Registrar
” shall have the meaning specified in Section 2.05(a).
“
Notice of Conversion
” shall have the meaning specified in Section 14.02(b).
“
Observation Period
” with respect to any Note surrendered for conversion means: (i) if the relevant Conversion Date
occurs prior to May 15, 2024, the 40 consecutive Trading Day period beginning on, and including, the second Trading Day immediately succeeding such Conversion Date; and (ii) if the relevant Conversion Date occurs on or after May 15,
2024, the 40 consecutive Trading Days beginning on, and including, the 41st Scheduled Trading Day immediately preceding the Maturity Date.
8
“
Offering Memorandum
” means the preliminary offering memorandum dated
November 7, 2017, as supplemented by the related pricing term sheet dated November 8, 2017, relating to the offering and sale of the Notes.
“
Officer
” means, with respect to the Company, the President, the Chief Executive Officer, the Chief Financial Officer, the
Treasurer, the Secretary, any assistant Treasurer, any assistant Secretary, any Executive or Senior Vice President or any Vice President (whether or not designated by a number or numbers or word or words added before or after the title “Vice
President”).
“
Officer’s Certificate
,” when used with respect to the Company, means a certificate that is
delivered to the Trustee and that is signed on behalf of the Company by an Officer of the Company that meets the requirements of Section 17.05.
“
open of business
” means 9:00 a.m. (New York City time).
“
Opinion of Counsel
” means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the
Company, that is delivered to the Trustee.
“
outstanding
,” when used with reference to Notes, shall, subject to the
provisions of Section 8.04, mean, as of any particular time, all Notes authenticated and delivered by the Trustee under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or accepted by the Trustee for cancellation;
(b) Notes, or portions thereof, that have become due and payable and in respect of which monies in the necessary amount shall have been
deposited in trust with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent);
(c) Notes that have been paid pursuant to Section 2.06 or Notes in lieu of which, or in substitution for which, other Notes shall have
been authenticated and delivered pursuant to the terms of Section 2.06 unless proof satisfactory to the Trustee is presented that any such Notes are held by protected purchasers in due course;
(d) Notes surrendered for purchase in accordance with Article 15 for which Paying Agent holds money sufficient to pay the Fundamental Change
Repurchase Price, in accordance with Section 15.04(b);
(e) Notes converted pursuant to Article 14 and required to be cancelled
pursuant to Section 2.08; and
9
(f) Notes repurchased by the Company pursuant to the last sentence of Section 2.10 after the
Company surrenders them to the Trustee for cancellation in accordance with Section 2.08.
“
Paying Agent
” shall have
the meaning specified in Section 4.02.
“
Person
” means an individual, a corporation, a limited liability company, an
association, a partnership, a joint venture, a joint stock company, a trust, an unincorporated organization or a government or an agency or a political subdivision thereof.
“
Physical Notes
” means permanent certificated Notes in registered form issued in denominations of $1,000 principal amount and
integral multiples thereof.
“
Physical Settlement
” shall have the meaning specified in Section 14.02(a).
“
Predecessor Note
” of any particular Note means every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.06 in lieu of or in exchange for a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note that it replaces.
“
Record Date
” means, with respect to any
dividend, distribution or other transaction or event in which the holders of Common Stock (or other applicable security) have the right to receive any cash, securities or other property or in which the Common Stock (or such other security) is
exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of holders of the Common Stock (or such other security) entitled to receive such cash, securities or other property (whether such
date is fixed by the Board of Directors, by statute, by contract or otherwise).
“
Reference Property
” shall have the
meaning specified in Section 14.07(a).
“
Regular Record Date
,” with respect to any Interest Payment Date, means the
May 1 or November 1 (whether or not such day is a Business Day) immediately preceding the applicable May 15 or November 15 Interest Payment Date, respectively.
“
Relevant Taxing Jurisdiction
” shall have the meaning specified in Section 4.10(a).
“
Repurchase Exchange Election
” shall have the meaning specified in Section 15.06.
“
Resale Restriction Termination Date
” shall have the meaning specified in Section 2.05(c).
“
Responsible Officer
” means, when used with respect to the Trustee, any officer within the Corporate Trust Office of the
Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and, in each case, who shall have direct responsibility for the
administration of this Indenture.
10
“
Restricted Securities
” shall have the meaning specified in
Section 2.05(c).
“
Restrictive Legend
” shall have the meaning specified in Section 2.05(c).
“
Rule 144
” means Rule 144 as promulgated under the Securities Act.
“
Rule 144A
” means Rule 144A as promulgated under the Securities Act.
“
Sale Price Condition
” shall have the meaning specified in Section 14.01(b)(iv).
“
Scheduled Trading Day
” means a day that is scheduled to be a Trading Day on the principal U.S. national or regional
securities exchange or market on which the Common Stock is listed or admitted for trading. If the Common Stock is not so listed or admitted for trading, “
Scheduled Trading Day
” means a Business Day.
“
Securities Act
” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“
Settlement Amount
” has the meaning specified in Section 14.02(a)(iv).
“
Settlement Method
” means, with respect to any conversion of Notes, Physical Settlement, Cash Settlement or Combination
Settlement, as elected (or deemed to have been elected) by the Company.
“
Settlement Notice
” has the meaning specified in
Section 14.02(a)(iii).
“
Share Exchange Event
” has the meaning specified in Section 14.07(a).
“
Significant Subsidiary
” means a Subsidiary of the Company that meets the definition of “significant subsidiary” in
Article 1, Rule
1-02
of Regulation
S-X
under the Exchange Act.
“
Specified Dollar Amount
” means the maximum cash amount per $1,000 principal amount of Notes to be received upon conversion
as specified in the Settlement Notice related to any converted Notes.
“
Spin-Off
”
shall have the meaning specified in Section 14.04(c).
“
Stock Price
” shall have the meaning specified in
Section 14.03(c).
“
Subsidiary
” means, with respect to any Person, any corporation, association, partnership or
other business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers, general partners or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries
of such Person.
11
“
Successor Company
” shall have the meaning specified in Section 11.01(a).
“
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;
provided
that if the Common Stock
(or such other security) is not so listed or traded, “
Trading Day
” means a Business Day; and
provided
,
further
, that for purposes of determining amounts due upon conversion only, “
Trading Day
” means a
day on which (x) there is no Market Disruption Event and (y) trading in the Common Stock generally occurs on The NASDAQ Global Select Market or, if the Common Stock 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 is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is
then listed or admitted for trading, except that if the Common Stock is not so listed or admitted for trading, “
Trading Day
” means a Business Day.
“
Trading Price
” of the Notes on any date of determination means the average of the secondary market bid quotations obtained
by the Bid Solicitation Agent for $5,000,000 principal amount of Notes at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers the Company selects for this purpose;
provided
that if three such bids cannot reasonably be obtained by the Bid Solicitation Agent but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Bid
Solicitation Agent, that one bid shall be used. If the Bid Solicitation Agent cannot reasonably obtain at least one bid for $5,000,000 principal amount of Notes from a nationally recognized securities dealer on any determination date, then the
Trading Price per $1,000 principal amount of Notes on such determination date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate.
“
Trading Price Condition
” shall have the meaning specified in Section 14.01(b)(i).
“
transfer
” shall have the meaning specified in Section 2.05(c).
“
Trigger Event
” shall have the meaning specified in Section 14.04(c).
12
“
Trust Indenture Act
” means the Trust Indenture Act of 1939, as amended, as it
was in force at the date of execution of this Indenture;
provided
,
however
, that in the event the Trust Indenture Act of 1939 is amended after the date hereof, the term “Trust Indenture Act” shall mean, to the extent required
by such amendment, the Trust Indenture Act of 1939, as so amended.
“
Trustee
” means the Person named as the
“
Trustee
” in the first paragraph of this Indenture until a successor trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “
Trustee
” shall mean or include each Person
who is then a Trustee hereunder.
“
unit of Reference Property
” shall have the meaning specified in Section 14.07(a).
“
Valuation Period
” shall have the meaning specified in Section 14.04(c).
“
Wholly Owned Subsidiary
” means, with respect to any Person, any Subsidiary of such Person, except that, solely for purposes
of this definition, the reference to “more than 50%” in the definition of “Subsidiary” shall be deemed replaced by a reference to “100%”.
Section 1.02.
References to Interest
.
Unless the context otherwise requires, any reference to interest on, or in respect
of, any Note 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 4.06(d), Section 4.06(e) and Section 6.03. Unless the
context otherwise requires, any express mention of Additional Interest in any provision hereof shall not be construed as excluding Additional Interest in those provisions hereof where such express mention is not made.
ARTICLE 2
I
SSUE
,
D
ESCRIPTION
, E
XECUTION
, R
EGISTRATION
AND
E
XCHANGE
OF
N
OTES
Section 2.01.
Designation and Amount
.
The Notes shall be designated as the “1.50% Convertible Senior Notes due
2024.” The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is initially limited to $570,000,000, subject to Section 2.10 and except for Notes authenticated and delivered upon registration or
transfer of, or in exchange for, or in lieu of other Notes to the extent expressly permitted hereunder.
Section 2.02.
Form of
Notes
.
The Notes and the Trustee’s certificate of authentication to be borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, the terms and provisions of which shall constitute, and are hereby
expressly incorporated in and made a part of this Indenture. 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 Global Note may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the
provisions of this Indenture as may be required by the Custodian or the Depositary, or as may be required to comply with any applicable law or any regulation thereunder or with the rules and regulations of any securities exchange or automated
quotation system upon which the Notes 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 Notes are subject.
13
Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends or endorsements as the Officer 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 to comply with
any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, or to conform to usage or to indicate
any special limitations or restrictions to which any particular Notes are subject.
Each Global Note shall represent such principal amount
of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be increased or reduced to reflect repurchases, cancellations, conversions, transfers or exchanges permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the
amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in such manner and upon instructions given by the Holder of such Notes in accordance with this Indenture. Payment of
principal (including the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, a Global Note shall be made to the Holder of such Note on the date of payment, unless a record date or other means of determining
Holders eligible to receive payment is provided for herein.
Section 2.03.
Date and Denomination of Notes; Payments of Interest
and Defaulted Amounts
.
(a) The Notes shall be issuable in registered form without coupons in denominations of $1,000 principal amount
and integral multiples thereof. Each Note shall be dated the date of its authentication and shall bear interest from the date specified on the face of such Note. Accrued interest on the Notes shall be computed on the basis of a
360-day
year composed of twelve
30-day
months and, for partial months, on the basis of the number of days actually elapsed in a
30-day
month.
(b) The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register at the close of business on any
Regular Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date. The Company shall pay the principal amount of any Note (x) in the case of any Physical Note, at the
office or agency of the Company maintained by the Company for such purposes in the United States, which shall initially be the Trustee at its agency in New York, New York, and (y) in the case of any Global Note, by wire transfer of immediately
available funds to the account of the Depositary or its nominee. The Company shall pay interest (i) on any Physical Notes (A) to Holders holding Physical Notes having an aggregate principal amount of $5,000,000 or less, by check mailed to
the Holders of these Notes at their address as it appears in the Note Register and (B) to Holders holding Physical Notes having an aggregate principal amount of more than $5,000,000, either by check mailed to each Holder or, upon application by
such a Holder to the Note Registrar not later than the relevant Regular Record Date, by wire transfer in immediately available funds to that Holder’s account within the United States, which application shall remain in effect until the Holder
notifies, in writing, the Note Registrar to the contrary or (ii) on any Global Note by wire transfer of immediately available funds to the account of the Depositary or its nominee.
14
(c) Any Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant
payment date but shall accrue interest per annum at the rate borne by the Notes, subject to the enforceability thereof under applicable law, from, and including, such relevant payment date, and such Defaulted Amounts together with such interest
thereon shall be paid by the Company, at its election in each case, as provided in clause (i) or (ii) below:
(i) The
Company may elect to make payment of any Defaulted Amounts to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a special record date for the payment of such Defaulted Amounts,
which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of the Defaulted Amounts proposed to be paid on each Note and the date of the proposed payment (which shall be not less than 25 days after
the receipt by the Trustee of such notice, unless the Trustee shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount to be paid in respect of such Defaulted
Amounts or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Amounts as in
this clause provided. Thereupon the Company shall fix a special record date for the payment of such Defaulted Amounts which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment, and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The Company shall promptly notify the Trustee of such special record date and the Trustee, in the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Amounts and the special record date therefor to be delivered to each Holder not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Amounts and the special record date
therefor having been so delivered, such Defaulted Amounts shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such special record date and shall no longer be
payable pursuant to the following clause (ii) of this Section 2.03(c).
(ii) The Company may make payment of any
Defaulted Amounts in any other lawful manner not inconsistent with the requirements of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, and upon such notice as may be required by such
exchange or automated quotation system, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Section 2.04.
Execution, Authentication and Delivery of Notes
.
The Notes shall be signed in the name and on behalf of the
Company by the manual or facsimile signature of one of its Officers.
15
At any time and from time to time after the execution and delivery of this Indenture, the Company
may deliver Notes executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with such Company Order shall authenticate and deliver such
Notes, without any further action by the Company hereunder.
Only such Notes as shall bear thereon a certificate of authentication
substantially in the form set forth on the Form of Note attached as Exhibit A hereto, executed manually by an authorized officer of the Trustee (or an authenticating agent appointed by the Trustee as provided by Section 17.10), shall be
entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee (or such an authenticating agent) upon any Note executed by the Company shall be conclusive evidence that the Note so authenticated
has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
In case any
Officer of the Company who shall have signed any of the Notes shall cease to be such Officer before the Notes so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Notes nevertheless may be
authenticated and delivered or disposed of as though the person who signed such Notes had not ceased to be such Officer of the Company; and any Note may be signed on behalf of the Company by such persons as, at the actual date of the execution of
such Note, shall be the Officers of the Company, although at the date of the execution of this Indenture any such person was not such an Officer.
Section 2.05.
Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary
.
(a) The Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office or in any other office
or agency of the Company designated pursuant to Section 4.02, the “
Note Register
”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers
of Notes. Such register shall be in written form or in any form capable of being converted into written form within a reasonable period of time. The Trustee is hereby initially appointed the “
Note Registrar
” for the purpose of
registering Notes and transfers of Notes as herein provided. The Company may appoint one or more
co-Note
Registrars in accordance with Section 4.02.
Upon surrender for registration of transfer of any Note to the Note Registrar or any
co-Note
Registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.05, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more
new Notes of any authorized denominations and of a like aggregate principal amount and bearing such legends as may be required by this Indenture.
Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate principal amount, upon surrender of the Notes
to be exchanged at any such office or agency maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes that the
Holder making the exchange is entitled to receive, bearing registration numbers not contemporaneously outstanding.
16
All Notes presented or surrendered for registration of transfer or for exchange, repurchase or
conversion shall (if so required by the Company, the Trustee, the Note Registrar or any
co-Note
Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form
satisfactory to the Note Registrar and duly executed, by the Holder thereof or its
attorney-in-fact
duly authorized in writing.
No service charge shall be imposed by the Company, the Trustee, the Note Registrar, any
co-Note
Registrar or the Paying Agent for any exchange or registration of transfer of Notes, but the Company, the Trustee, the Note Registrar, any
co-Note
Registrar or the Paying Agent may require a Holder to pay a
sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a result of the name of the Holder of new Notes issued upon such exchange or registration of transfer being different from the name
of the Holder of the old Notes surrendered for exchange or registration of transfer.
None of the Company, the Trustee, the Note Registrar
or any
co-Note
Registrar shall be required to exchange or register a transfer of (i) any Notes surrendered for conversion or, if a portion of any Note is surrendered for conversion, such portion thereof
surrendered for conversion or (ii) any Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with Article 15.
All Notes issued upon any registration of transfer or exchange of Notes in accordance with this Indenture shall be the valid obligations of
the Company, evidencing the same debt, and entitled to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer or exchange.
(b) So long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise required by law, subject to the fourth
paragraph from the end of Section 2.05(c) all Notes shall be represented by one or more Notes in global form (each, a “
Global Note
”) registered in the name of the Depositary or the nominee of the Depositary. The transfer and
exchange of beneficial interests in a Global Note that does not involve the issuance of a Physical Note shall be effected through the Depositary (but not the Trustee or the Custodian) in accordance with this Indenture (including the restrictions on
transfer set forth herein) and the Applicable Procedures.
(c) Every Note that bears or is required under this Section 2.05(c) to bear
the legend set forth in this Section 2.05(c) (together with any Common Stock issued upon conversion of the Notes that is required to bear the legend set forth in Section 2.05(d), collectively, the “
Restricted Securities
”)
shall be subject to the restrictions on transfer set forth in this Section 2.05(c) (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 2.05(c) and Section 2.05(d), the term “
transfer
”
encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.
17
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 of the Notes, or such shorter period of time as permitted by Rule 144 or any successor provision thereto, and (2) such later date, if any, as may be required by
applicable law, any certificate evidencing such Note (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 2.05(d), if applicable) shall bear a legend in substantially the following form (the “
Restrictive Legend
”) (unless such Notes 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 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 SAREPTA THERAPEUTICS, 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 AND IS EFFECTIVE AT
THE TIME OF SUCH TRANSFER, 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.
18
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND
THE NOTE REGISTRAR 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 AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF SAREPTA THERAPEUTICS, INC., OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED
IN RULE 144 UNDER THE SECURITIES ACT) OF SAREPTA THERAPEUTICS, INC. DURING THE IMMEDIATELY PRECEDING THREE MONTHS MAY PURCHASE, OTHERWISE ACQUIRE OR HOLD THIS SECURITY OR A BENEFICIAL INTEREST HEREIN.
No transfer of any Note prior to the Resale Restriction Termination Date will be registered by the Note Registrar unless the applicable box on
the Form of Assignment and Transfer has been checked.
Any Note (or security issued in exchange or substitution therefor) (i) as to
which such restrictions on transfer shall have expired in accordance with their terms, (ii) that has been transferred pursuant to a registration statement that has become effective or been declared effective under the Securities Act and that
continues to be effective at the time of such transfer or (iii) that has been sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, may, upon surrender of such
Note for exchange to the Note Registrar in accordance with the provisions of this Section 2.05, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the Restrictive Legend required by this
Section 2.05(c) and shall not be assigned a restricted CUSIP number. 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 any proposed transfer of any Note is being made in compliance with the Securities Act and applicable state securities laws.
The Company shall be entitled to instruct the Custodian in writing to so surrender any Global Note as to which any of the conditions set forth
in clause (i) through (iii) of the immediately preceding sentence have been satisfied, and, upon such instruction, the Custodian shall so surrender such Global Note for exchange; and any new Global Note so exchanged therefor shall not bear the
Restrictive Legend specified in this Section 2.05(c) and shall not be assigned a restricted CUSIP number;
provided
that that the Depositary of any Global Note may require a mandatory exchange or other process to cause such Global Note to
be identified by an unrestricted CUSIP number in the facilities of such Depositary. Without limiting the generality of any other provision of this Indenture, the Trustee will be entitled to receive an instruction letter from the Company before
taking any action with respect to effecting any such mandatory exchange or other process. 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 Notes or any Common Stock issued upon conversion of the Notes has been declared effective under the Securities Act.
19
Notwithstanding any other provisions of this Indenture (other than the provisions set forth in
this Section 2.05(c)), a Global Note 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 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 exchange of a Global Note or a portion thereof for one or more Physical Notes in accordance with the second immediately
succeeding paragraph.
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 Note. Initially, each Global Note 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.
If (i) the Depositary notifies the Company at any time that the Depositary is unwilling
or unable to continue as depositary for the Global Notes and a successor depositary is not appointed within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange Act and a successor depositary is not
appointed within 90 days or (iii) an Event of Default with respect to the Notes has occurred and is continuing and a beneficial owner of any Note requests that its beneficial interest therein be issued as a Physical Note, the Company shall
execute, and the Trustee, upon receipt of an Officer’s Certificate and a Company Order for the authentication and delivery of Notes, shall authenticate and deliver (x) in the case of clause (iii), a Physical Note to such beneficial owner
in a principal amount equal to the principal amount of such Note corresponding to such beneficial owner’s beneficial interest and (y) in the case of clause (i) or (ii), Physical Notes to each beneficial owner of the related Global
Notes (or a portion thereof) in an aggregate principal amount equal to the aggregate principal amount of such Global Notes in exchange for such Global Notes, and upon delivery of the Global Notes to the Trustee such Global Notes shall be canceled.
Physical Notes issued in exchange for all or a part of the Global Note pursuant to this Section 2.05(c) shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, or, in the case of clause (iii) of the immediately preceding paragraph, the relevant beneficial owner,
shall instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such Physical Notes to the Persons in whose names such Physical Notes are so registered.
At such time as all interests in a Global Note have been converted, canceled, repurchased or transferred, such Global Note shall be, upon
receipt thereof, canceled by the Trustee in accordance with standing procedures and existing instructions between the Depositary and the Custodian. At any time prior to such cancellation, if any interest in a Global Note is exchanged for Physical
Notes, converted, canceled, repurchased or transferred to a transferee who receives Physical Notes therefor or any Physical Note is exchanged or transferred for part of such Global Note, the principal amount of such Global Note shall, in accordance
with the standing procedures and instructions existing between the Depositary and the Custodian, be appropriately reduced or increased, as the case may be, and an endorsement shall be made on such Global Note, by the Trustee or the Custodian, at the
direction of the Trustee, to reflect such reduction or increase.
20
Members of, or participants in, the Depositary shall have no rights under this Indenture with
respect to any Global Note held on their behalf by the Depositary, or the Trustee as its Custodian, or under a Global Note, and the Depositary (or its nominee) may be treated by the Company, the Trustee and any agent of the Company or the Trustee as
the absolute owner of a Global Note for all purposes whatsoever, except as otherwise stated herein. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any of their respective agents from giving effect to any
written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its participants, the operation of customary practices governing the exercise of the rights of a Holder of any Note.
None of the Company, the Trustee or any agent of the Company or the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Neither the Company nor the Trustee shall have any responsibility or liability for any act or omission of the Depositary, including without
limitation with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice or the payment of any amount or delivery of any Notes (or other Note or property) under or with respect to
such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to, or upon the order of, the registered Holder(s) (which shall be the Depositary or its
nominee in the case of a Global Note).
The rights of beneficial owners in any Global Note shall be exercised only through the Depositary
subject to the Applicable Procedures of the Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.
(d) Until the Resale Restriction Termination Date, any stock certificate representing Common Stock issued upon conversion of a Note shall bear
a legend in substantially the following form (unless 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 or any similar provision then in force under the Securities Act, or such Common Stock has been issued upon conversion of a Note that has 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 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):
21
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
(2) AGREES FOR THE
BENEFIT OF SAREPTA THERAPEUTICS, 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 OF THE SERIES OF NOTES UPON THE CONVERSION OF WHICH THIS SECURITY WAS ISSUED 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 THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT AND IS EFFECTIVE AT THE TIME OF SUCH TRANSFER, OR
(C) TO A PERSON THAT YOU REASONABLY BELIEVE TO BE 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 CLAUSE (2)(D) ABOVE, THE
COMPANY AND THE TRANSFER AGENT FOR THE COMPANY’S COMMON STOCK 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.
22
Any such Common Stock (i) as to which such restrictions on transfer shall have expired in
accordance with their terms, (ii) that 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
(iii) that has been sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, 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 2.05(d).
(e) Any Note or Common Stock issued upon conversion or exchange of a Note that is repurchased or owned by any
Affiliate of the Company may not be resold by such Affiliate (or such Person, as the case may be) unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction
that results in such Note or Common Stock, as the case may be, no longer being a “restricted security” (as defined under Rule 144). The Company shall cause any Note that is repurchased or owned by the Company to be surrendered to the
Trustee for cancellation in accordance with Section 2.08.
(f) Notwithstanding anything contained herein to the contrary, neither the
Trustee nor the Note Registrar shall be responsible for ascertaining whether any transfer complies with the registration provisions of, or exemptions from, the Securities Act, applicable state securities laws or other applicable law.
Section 2.06.
Mutilated, Destroyed, Lost or Stolen Notes
.
In case any Note shall become mutilated or be destroyed, lost or
stolen, upon request and satisfaction of the conditions of the immediately succeeding sentence, the Company in its discretion may execute, and upon receipt of a Company Order, the Trustee or an authenticating agent appointed by the Trustee shall
authenticate and deliver, a new Note, bearing a registration number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed, lost or stolen, at the expense
of the Holder of such Note. In every case the applicant for a substituted Note 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 from any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.
The
Trustee or such authenticating agent may authenticate any such substituted Note and deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and, if applicable, such authenticating agent may require. No service
charge shall be imposed by the Company, the Trustee, the Note Registrar, any
co-Note
Registrar or the Paying Agent upon the issuance of any substitute Note, but the Company may require a Holder to pay a sum
sufficient to cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a result of the name of the Holder of the new substitute Note being different from the name of the Holder of the old Note that became
mutilated or was destroyed, lost or stolen. In case any Note that has matured or is about to mature or has been surrendered for required repurchase or is about to be converted in accordance with Article 14 shall become mutilated or be destroyed,
lost or stolen, the Company may, in its sole discretion, instead of issuing a substitute Note, pay or
23
authorize the payment of or convert or authorize the conversion of the same (without surrender thereof except in the case of a mutilated Note), 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 connected with such substitution, and, in every case of destruction, loss or theft, evidence satisfactory to the Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent evidence of their satisfaction of the destruction,
loss or theft of such Note and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of this
Section 2.06 by virtue of the fact that any Note is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any time, and shall be
entitled to all the benefits of (but shall be subject to all the limitations set forth in) this Indenture equally and proportionately with any and all other Notes duly issued hereunder. To the extent permitted by law, all Notes shall be held and
owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement, payment, conversion or repurchase of mutilated, destroyed, lost or stolen Notes and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement, payment, conversion or repurchase of negotiable instruments or other securities without their surrender.
Section 2.07.
Temporary Notes
.
Pending the preparation of Physical Notes, the Company may execute and the Trustee or an
authenticating agent appointed by the Trustee shall, upon receipt of a Company Order, authenticate and deliver temporary Notes (printed or lithographed). Temporary Notes shall be issuable in any authorized denomination, and substantially in the form
of the Physical Notes but with such omissions, insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Company. Every such temporary Note 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 Physical Notes. Without unreasonable delay, the Company shall execute and deliver to the Trustee or such authenticating
agent Physical Notes (other than any Global Note) and thereupon any or all temporary Notes (other than any Global Note) may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 4.02 and the
Trustee or such authenticating agent shall authenticate and deliver in exchange for such temporary Notes an equal aggregate principal amount of Physical Notes. Such exchange shall be made by the Company at its own expense and without any charge
therefor. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Physical Notes authenticated and delivered hereunder.
Section 2.08.
Cancellation of Notes Paid, Converted, Etc
.
. The Company shall cause all Notes surrendered for the purpose of
payment, repurchase (including as described in Section 2.10), registration of transfer or exchange or conversion, if surrendered to any Person other than the Trustee (including any of the Company’s agents, Subsidiaries or Affiliates), to
be surrendered to the Trustee for cancellation. All Notes delivered to the Trustee shall be canceled promptly by it. Except for any Notes surrendered for registration of transfer or exchange, or as
24
otherwise expressly permitted by any of the provisions of this Indenture, no Notes shall be authenticated in exchange for any Notes surrendered to the Trustee for cancellation. The Trustee shall
dispose of canceled Notes in accordance with its customary procedures. After such cancellation, the Trustee shall deliver a certificate of such cancellation to the Company, at the Company’s written request in a Company Order.
Section 2.09.
CUSIP Numbers
.
The Company in issuing the Notes may use CUSIP numbers (if then generally in use), and, if so,
the Trustee shall use CUSIP numbers in all notices issued to Holders as a convenience to such Holders;
provided
that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes
or on such notice and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall promptly notify the Trustee in writing of any change in the CUSIP numbers.
Section 2.10.
Additional Notes; Repurchases
.
The Company may, without the consent of the Holders and notwithstanding
Section 2.01, reopen this Indenture for the Notes and issue additional Notes hereunder with the same terms as the Notes initially issued hereunder (other than differences in the issue date, the issue price and interest accrued prior to the
issue date of such additional Notes) in an unlimited aggregate principal amount;
provided
that if any such additional Notes are not fungible with the Notes initially issued hereunder for U.S. federal income tax or securities law purposes,
such additional Notes shall have a separate CUSIP number. Prior to the issuance of any such additional Notes, the Company shall deliver to the Trustee a Company Order, an Officer’s Certificate and an Opinion of Counsel, such Officer’s
Certificate and Opinion of Counsel to cover such matters, in addition to those required by Section 17.05, as the Trustee shall reasonably request. In addition, the Company may, to the extent permitted by law, and directly or indirectly
(regardless of whether such Notes are surrendered to the Company), repurchase Notes in the open market or otherwise, whether by the Company or its Subsidiaries or through a private or public tender or exchange offer or through counterparties to
private agreements, including by cash-settled swaps or other derivatives and, in each case, at any price. The Company shall cause any Notes so repurchased (other than Notes repurchased pursuant to cash-settled swaps or other derivatives) to be
surrendered to the Trustee for cancellation in accordance with Section 2.08, and any such Notes shall no longer be considered outstanding under this Indenture upon their repurchase.
ARTICLE 3
S
ATISFACTION
AND
D
ISCHARGE
Section 3.01.
Satisfaction and Discharg
e
.
This Indenture shall upon request of the Company contained in an
Officer’s Certificate cease to be of further effect, and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when (a) (i) all Notes theretofore
authenticated and delivered (other than Notes which have been destroyed, lost or stolen and which have been replaced, paid or converted as provided in Section 2.06) have been delivered to the Trustee for cancellation; or (ii) after the
Notes have become due and payable, whether on the Maturity Date, on any Fundamental Change Repurchase Date, upon conversion or otherwise, the Company has deposited with the Trustee cash and/or has delivered to Holders shares of Common Stock, as
25
applicable, (in the case of Common Stock, solely to satisfy the Company’s Conversion Obligation) sufficient to pay all of the outstanding Notes and all other sums due and payable under this
Indenture by the Company; and (b) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.06 shall survive.
ARTICLE 4
P
ARTICULAR
C
OVENANTS
OF
THE
C
OMPANY
Section 4.01.
Payment of Principal and Interest
.
The Company covenants and agrees that it will cause to be paid the
principal (including the Fundamental Change Repurchase Price, if applicable) of, the Settlement Amounts owed upon conversion on, and accrued and unpaid interest on, each of the Notes at the places, at the respective times and in the manner provided
herein and in the Notes.
Section 4.02.
Maintenance of Office or Agency
.
The Company will maintain in the United States
an office or agency where the Notes may be surrendered for registration of transfer or exchange or for presentation for payment or repurchase (“
Paying Agent
”) or for conversion (“
Conversion Agent
”) and where notices
in respect of the Notes and this Indenture may be made. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. 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 at the Corporate Trust Office.
The Company may also from time to time designate a Paying Agent one or more other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such designations;
provided
that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the
United States for such purposes. 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. The terms “
Paying Agent
” and
“
Conversion Agent
” include any such additional or other offices or agencies, as applicable.
The Company hereby initially
designates the Trustee as the Paying Agent, Note Registrar, Custodian and Conversion Agent and its agency in New York, New York as a place where Notes may be surrendered for registration of transfer or exchange or for presentation for payment or
repurchase (if applicable) or for conversion and where notices in respect of the Notes and this Indenture may be made.
Section 4.03.
Appointments to Fill Vacancies in Trustee’s Office
.
The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.09, a Trustee, so that there shall at
all times be a Trustee hereunder.
26
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Section 4.04.
Provisions as to Paying Agent
.
|
(a) If the Company shall appoint a Paying Agent other than the Trustee, the Company will cause such Paying
Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.04:
(i) that it will hold all sums held by it as such agent for the payment of the principal (including the Fundamental Change
Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes in trust for the benefit of the Holders of the Notes;
(ii) that it will give the Trustee prompt notice of any failure by the Company to make any payment of the principal (including
the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes when the same shall be due and payable; and
(iii) that at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the
Trustee all sums so held in trust;
provided
, that a Paying Agent appointed as contemplated under Section 15.02(f) shall not
be required to deliver any such instrument.
The Company shall, on or before each due date of the principal (including the Fundamental
Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Notes, deposit with the Paying Agent a sum sufficient to pay such principal (including the Fundamental Change Repurchase Price, if applicable) or accrued and unpaid
interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of any failure to take such action;
provided
that if such deposit is made on the due date, such deposit must be received by the Paying Agent
by 11:00 a.m., New York City time, on such date.
(b) If the Company shall act as its own Paying Agent, it will, on or before each due date
of the principal (including the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes, set aside, segregate and hold in trust for the benefit of the Holders of the Notes a sum sufficient to pay such
principal (including the Fundamental Change Repurchase Price, if applicable) and accrued and unpaid interest so becoming due and will promptly notify the Trustee in writing of any failure to take such action and of any failure by the Company to make
any payment of the principal (including the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Notes when the same shall become due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a
satisfaction and discharge of this Indenture, or for any other reason, pay, cause to be paid or deliver to the Trustee all sums or amounts held in trust by the Company or any Paying Agent hereunder as required by this Section 4.04, such sums or
amounts to be held by the Trustee upon the trusts herein contained and upon such payment or delivery by the Company or any Paying Agent to the Trustee, the Company or such Paying Agent shall be released from all further liability but only with
respect to such sums or amounts.
27
(d) Subject to applicable law, any money deposited with the Trustee, the Conversion Agent or any
Paying Agent, or any money and shares of Common Stock then held by the Company, in trust for the payment of the principal (including the Fundamental Change Repurchase Price, if applicable) of, accrued and unpaid interest on and the consideration due
upon conversion of any Note and remaining unclaimed for two years after such principal (including the Fundamental Change Repurchase Price, if applicable), interest or consideration due upon conversion has become due and payable shall be paid to the
Company on request of the Company contained in an Officer’s Certificate, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee, the Conversion Agent or such Paying Agent with respect to such trust money, and all liability of the Company as trustee with respect to such trust money and shares of Common Stock, shall
thereupon cease;
provided
,
however
, that the Trustee, Conversion Agent or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general circulation in The Borough of Manhattan, The City of New York, notice that such money and shares of Common Stock remain unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money and shares of Common Stock then remaining will be repaid or delivered to the Company.
Section 4.05.
Existence
. Subject to Article 11, the Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence.
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Section 4.06.
Rule 144A Information Requirement and Annual Reports
.
|
(a) At any time the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall,
so long as any of the Notes or any shares of Common Stock issuable upon conversion thereof shall, at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, promptly provide to the
Trustee and, upon written request, any Holder, beneficial owner or prospective purchaser of such Notes or any shares of Common Stock issuable upon conversion of such Notes, the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act to facilitate the resale of such Notes or shares of Common Stock pursuant to Rule 144A. The Company shall take such further action as any Holder or beneficial owner of such Notes may reasonably request to the extent from time to
time required to enable such Holder or beneficial owner to sell such Notes or shares of Common Stock in accordance with Rule 144A under the Securities Act, as such rule may be amended from time to time.
(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 (excluding, for the avoidance of doubt, any such documents or reports (or portions thereof) that are subject to
confidential treatment and any correspondence with the SEC) (giving effect to any grace periods 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 4.06(b) at the time such documents are filed via the EDGAR system.
28
(c) Delivery of the reports and documents described in subsection (b) above to the Trustee
is for informational purposes only, and the Trustee’s receipt of such 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 Officer’s Certificate).
(d) If, at any
time during the
six-month
period beginning on, and including, the date that is six months after the last date of original issuance of the Notes, 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 Notes are not otherwise freely tradable pursuant to Rule 144 by Holders other than the Company’s Affiliates or Holders that were the Company’s Affiliates at any time during the three
months immediately preceding (as a result of restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Notes), the Company shall pay Additional Interest on the Notes. Such Additional Interest shall accrue on the Notes at
the rate of 0.25% per annum of the principal amount of the Notes outstanding for each day during the first
90-day
period for which the Company’s failure to file has occurred and is continuing or the Notes
are not otherwise freely tradable pursuant to Rule 144 by Holders other than the Company’s Affiliates (or Holders that were the Company’s Affiliates at any time during the three months immediately preceding) and 0.50% per annum of the
principal amount of Notes outstanding for each day thereafter during which the Company’s failure to file has occurred and is continuing or the Notes are not otherwise freely tradable pursuant to Rule 144 by Holders other than the Company’s
Affiliates (or Holders that were the Company’s Affiliates at any time during the three months immediately preceding). As used in this Section 4.06(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 Notes specified in Section 2.05(c) has not been removed, the Notes are assigned
a restricted CUSIP or the Notes are not otherwise freely tradable pursuant to Rule 144 by Holders other than the Company’s Affiliates or Holders that were the Company’s Affiliates at any time during the three months immediately preceding
(without restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Notes) as of the 380th day after the last date of original issuance of the Notes, the Company shall pay Additional Interest on the Notes at a rate equal to
0.50% per annum of the principal amount of Notes outstanding until the Restrictive Legend on the Notes has been removed in accordance with Section 2.05(c), the Notes are assigned an unrestricted CUSIP and the Notes are freely tradable pursuant
to Rule 144 by Holders other than the Company’s Affiliates (or Holders that were the Company’s Affiliates at any time during the three months immediately preceding) without restrictions pursuant to U.S. securities laws or the terms of this
Indenture or the Notes.
(f) Additional Interest will be payable in arrears on each Interest Payment Date following accrual in the same
manner as regular interest on the Notes.
29
(g) The Additional Interest that is payable in accordance with Section 4.06(d) or
Section 4.06(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 6.03.
(h) If Additional Interest is payable by the Company pursuant to Section 4.06(d) or Section 4.06(e), the Company shall deliver to the
Trustee an Officer’s Certificate to that effect stating (i) the amount of such Additional Interest that is payable and (ii) the date on which such Additional Interest is payable. Unless and until a Responsible Officer of the Trustee
receives at the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no such Additional Interest is payable.
Section 4.07.
Stay, Extension and Usury Laws
.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal
of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of this Indenture; and the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 4.08.
Compliance Certificate; Statements as to Defaults
.
The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company (beginning with the fiscal year ending on December 31, 2017) an Officer’s Certificate stating whether the signers thereof have
knowledge of any failure by the Company to comply with all conditions and covenants then required to be performed under this Indenture and, if so, specifying each such failure and the nature thereof.
In addition, the Company shall deliver to the Trustee within 30 days after the occurrence of any Event of Default or Default, an
Officer’s Certificate setting forth the details of such Event of Default or Default, its status and the action that the Company is taking or proposing to take in respect thereof.
Section 4.09.
Further Instruments and Acts
.
Upon request of the Trustee, Paying Agent or Conversion Agent, the Company will
execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.
Section 4.10.
Additional Amounts.
(a) If the Company consolidates with or merges with or into, or sells, conveys, transfers or leases all or substantially all of the
Company’s properties and assets to, another company pursuant to Section 11.01, and the Successor Company is not organized and existing under the laws of the United States of America, any State thereof or the District of Columbia, then all
payments and deliveries made by, or on behalf of, the Successor Company under or with respect to the Notes, including, but not limited to, payments of principal (including, if applicable,
30
the Fundamental Change Repurchase Price), payments of interest and deliveries of Common Stock or other Reference Property and/or payments of cash, in each case, upon conversion, shall be made
without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by a taxing authority within any jurisdiction in which the Successor Company is,
for tax purposes, organized or resident or doing business or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “
Relevant Taxing Jurisdiction
”), unless such
withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Successor Company shall pay such additional amounts (the
“
Additional Amounts
”) as may be necessary to ensure that the net amount received by the beneficial owner after such withholding or deduction (and after deducting or withholding any taxes on the Additional Amounts) shall equal the
amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no Additional Amounts shall be payable:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or beneficial owner of such Note and the Relevant
Taxing Jurisdiction, other than merely holding such Note or the receipt of payments thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing
Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date
on which the payment of the principal of (including the Fundamental Change Repurchase Price, if applicable) and interest on, such Note or the delivery of Common Stock and other Reference Property and/or payments of cash, in each case, upon
conversion of such Note became due and payable pursuant to the terms thereof or was made or duly provided for; or
(3) the
failure of the Holder or beneficial owner to comply with a timely request from the Successor Company to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence,
identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by
statute, regulation or administrative practice of the Relevant Taxing Jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
31
(B) any estate, inheritance, gift, sale, transfer, excise, personal property or
similar tax, assessment or other governmental charge;
(C) any tax, duty, assessment or other governmental charge that is
payable otherwise than by withholding or deduction from payments under or with respect to the Notes;
(D) any tax,
assessment, withholding or deduction required by sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (“
FATCA
”), any current or future Treasury Regulations or rulings promulgated thereunder, any
law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law, regulation or other official guidance
enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA;
(E) any tax, duty, assessment or other governmental charge required to be withheld or deducted by any Paying Agent from any
payment of principal of, or interest on, any Notes, if such payment could have been made without such withholding or deduction by at least one other Paying Agent;
(F) all United States backup withholding taxes; or
(G) any combination of taxes referred to in the preceding clauses (A), (B), (C), (D), (E) or (F).
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable) and
interest on, such Note or the delivery of Common Stock or other Reference Property and/or payments of cash, in each case, upon conversion of such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial
owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a partner or member
of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner, member or beneficial owner been the Holder thereof.
(b) If the Successor Company is required to make any deduction or withholding from any payments with respect to the Notes, the Successor
Company will deliver to the Trustee official tax receipts evidencing the remittance to the relevant tax authorities of the amounts so withheld or deducted or other evidence reasonably satisfactory to the Trustee.
32
(c) Any reference in this Supplemental Indenture or the Notes in any context to the delivery of
Common Stock or other Reference Property and/or payments of cash, in each case, upon conversion of any Note or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable) and interest on, any Note or any other
amount payable with respect to such Note, shall be deemed to include payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to this Section 4.10.
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ARTICLE 5
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L
ISTS
OF
H
OLDERS
AND
R
EPORTS
BY
THE
C
OMPANY
AND
THE
T
RUSTEE
|
Section 5.01.
Lists of Holders
.
The
Company covenants and agrees that it will furnish or cause to be furnished to the Trustee, semi-annually, no later than May 1 and November 1 in each year beginning with May 1, 2018, and at such other times as the Trustee may request
in writing, within 30 days after receipt by the Company of any such request (or such lesser time as the Trustee may reasonably request in order to enable it to timely provide any notice to be provided by it hereunder), a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders as of a date not more than 15 days (or such other date as the Trustee may reasonably request in order to so provide any such notices) prior to the time such information is
furnished, except that no such list need be furnished so long as the Trustee is acting as Note Registrar.
Section 5.02.
Preservation and Disclosure of Lists
.
The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders contained in the most recent list furnished to it as
provided in Section 5.01 or maintained by the Trustee in its capacity as Note Registrar, if so acting. The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
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ARTICLE 6
|
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D
EFAULTS
AND
R
EMEDIES
|
Section 6.01.
Events of Default
.
Each of the following events shall be an “
Event of Default
” with respect
to the Notes:
(a) default in any payment of interest on any Note when due and payable, and the default continues for a period of 30 days;
(b) default in the payment of principal of any Note when due and payable on the Maturity Date, upon any required repurchase, upon
declaration of acceleration or otherwise;
(c) failure by the Company to comply with its obligation to convert the Notes in accordance with
this Indenture upon exercise of a Holder’s conversion right, and such failure continues for five Business Days;
(d) failure by the
Company to issue (i) a Fundamental Change Company Notice in accordance with Section 15.02(c) or (ii) notice of a corporate event in accordance with Section 14.01(b)(ii) or 14.01(b)(iii), in each case when due and such failure
continues for three Business Days;
33
(e) failure by the Company to comply with its obligations under Article 11;
(f) failure by the Company for 60 days after written notice from the Trustee or the Holders of at least 25% in principal amount of the Notes
then outstanding has been received by the Company to comply with any of its other agreements contained in the Notes or this Indenture;
(g)
default by the Company or any Significant Subsidiary of the Company with respect to any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed
in excess of $25,000,000 (or its foreign currency equivalent) in the aggregate of the Company and/or any such Significant Subsidiary, whether such indebtedness now exists or shall hereafter be created (i) resulting in such indebtedness becoming
or being declared due and payable prior to its stated maturity or (ii) constituting a failure to pay the principal or interest of any such debt when due and payable (after the expiration of all applicable grace periods) at its stated maturity,
upon required repurchase, upon declaration of acceleration or otherwise, if such acceleration shall not have been rescinded or annulled or such failure to pay or default shall not have been cured or waived, or such indebtedness shall not have been
paid or discharged, as the case may be, within 30 days after written notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least 25% in aggregate principal amount of Notes then outstanding in accordance with this
Indenture;
(h) the Company or any Significant Subsidiary shall commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to the Company or any such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the Company or any such Significant Subsidiary or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall publicly admit in writing that it generally is not paying, or is unable to pay, its debts as they become due; or
(i) an involuntary case or other proceeding shall be commenced against the Company or any Significant Subsidiary seeking liquidation,
reorganization or other relief with respect to the Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of the Company or such Significant Subsidiary or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 consecutive days.
Section 6.02.
Acceleration; Rescission and Annulment
.
If one or more Events of Default shall have occurred and be
continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be 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), then, and in each and every such case (other than an Event of Default
34
specified in Section 6.01(h) or Section 6.01(i)), unless the principal of all of the Notes shall have already become due and payable, either the Trustee or the Holders of at least 25%
in aggregate principal amount of the Notes then outstanding determined in accordance with Section 8.04, by notice in writing to the Company (and to the Trustee if given by Holders), may, and the Trustee at the request of such Holders shall,
declare 100% of the principal of, and accrued and unpaid interest on, all the Notes to be due and payable immediately, and upon any such declaration the same shall become and shall automatically be immediately due and payable, anything contained in
this Indenture or in the Notes to the contrary notwithstanding. If an Event of Default specified in Section 6.01(h) or Section 6.01(i) occurs and is continuing, 100% of the principal of, and accrued and unpaid interest, if any, on, all
Notes shall become and shall automatically be immediately due and payable.
The immediately preceding paragraph, however, is subject to
the conditions that if, at any time after the principal of the Notes shall have been so declared due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay installments of accrued and unpaid interest upon all Notes and the principal of any and all Notes that shall have become due otherwise than by acceleration (with interest on
overdue installments of accrued and unpaid interest to the extent that payment of such interest is enforceable under applicable law, and on such principal at the rate borne by the Notes at such time) and amounts due to the Trustee pursuant to
Section 7.06, and if (1) rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (2) any and all existing Events of Default under this Indenture, other than the nonpayment of the principal of
and accrued and unpaid interest, if any, on Notes that shall have become due solely by such acceleration, shall have been cured or waived pursuant to Section 6.09, then and in every such case (except as provided in the immediately succeeding
sentence) the Holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Company and to the Trustee, may waive all Defaults or Events of Default with respect to the Notes and rescind and annul such
declaration and its consequences and such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver or rescission and annulment shall extend to
or shall affect any subsequent Default or Event of Default, or shall impair any right consequent thereon. Notwithstanding anything to the contrary herein, no such waiver or rescission and annulment shall extend to or shall affect any Default or
Event of Default resulting from (i) the nonpayment of the principal (including the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, any Notes, (ii) a failure to repurchase any Notes when required
or (iii) a failure to pay or deliver, as the case may be, the consideration due upon conversion of the Notes.
Section 6.03.
Additional Interest
.
Notwithstanding anything in this Indenture or in the Notes to the contrary, to the extent the Company elects, the sole remedy for an Event of Default relating to the Company’s failure to comply with its
obligations as set forth in Section 4.06(b) shall, for the first 180 days after the occurrence of such an Event of Default, consist exclusively of the right to receive Additional Interest on the Notes at a rate equal to: (i) 0.25% per annum of
the principal amount of the Notes outstanding for each day during which such an Event of Default is continuing during the
90-day
period beginning on, and including, the date on which
35
such an Event of Default first occurs; and (ii) 0.50% per annum of the principal amount of the Notes outstanding for each day during which such Event of Default is continuing during the
90-day
period beginning on, and including the 91
st
day following, and including, the date on which such an Event of Default first occurs. Additional Interest
payable pursuant to this Section 6.03 shall be in addition to, not in lieu of, any Additional Interest payable pursuant to Section 4.06(d) or Section 4.06(e). If the Company so elects, such Additional Interest shall be payable in the
same manner and on the same dates as the stated interest payable on the Notes. On the 181st day after such Event of Default (if such Event of Default is not cured or waived prior to such 181st day), the Notes shall be immediately subject to
acceleration as provided in Section 6.02. The provisions of this paragraph will not affect the rights of Holders of Notes in the event of the occurrence of any Event of Default other than the Company’s failure to comply with its
obligations as set forth in Section 4.06(b). In the event the Company does not elect to pay Additional Interest following an Event of Default in accordance with this Section 6.03 or the Company has elected to make such payment but does not
pay the Additional Interest when due, the Notes shall be immediately subject to acceleration as provided in Section 6.02.
In order
to elect to pay Additional Interest as the sole remedy during the first 180 days after the occurrence of any Event of Default described in the immediately preceding paragraph, the Company must notify all Holders of the Notes, the Trustee and the
Paying Agent in an Officer’s Certificate (consistent with Section 4.06(h)) of such election prior to the beginning of such
180-day
period. Upon the failure to timely give such notice, the Notes shall
be immediately subject to acceleration as provided in Section 6.02.
Section 6.04.
Payments of Notes on Default; Suit
Therefor
.
If an Event of Default described in clause (a) or (b) of Section 6.01 shall have occurred, the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of the Notes, the whole
amount then due and payable on the Notes for principal and interest, if any, with interest on any overdue principal and interest, if any, at the rate borne by the Notes at such time, and, in addition thereto, such further amount as shall be
sufficient to cover any amounts due to the Trustee under Section 7.06. If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the Notes and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or any other obligor upon the Notes, wherever situated.
In the
event there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Notes under Title 11 of the United States Code, or any other applicable law, or in case a receiver, assignee or trustee
in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Company, the property of the Company, or in the event of any other judicial proceedings relative to the Company,
or to the creditors or property of the Company, the Trustee, irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section 6.04, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims
36
for the whole amount of principal and accrued and unpaid interest, if any, in respect of the Notes, and, in case of any judicial proceedings, to file such proofs of claim and other papers or
documents and to take such other actions as it may deem necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceedings relative to the Company, its creditors, or its property, and to collect and receive any monies or other property payable or deliverable on any such claims, and to distribute the same
after the deduction of any amounts due to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is hereby authorized by each of the Holders to make such
payments to the Trustee, as administrative expenses, and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for reasonable compensation, expenses, advances and
disbursements, including agents and counsel fees, and including any other amounts due to the Trustee under Section 7.06, incurred by it up to the date of such distribution. To the extent that such payment of reasonable compensation, expenses,
advances and disbursements out of the estate in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, monies, securities and other
property that the Holders of the Notes may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting such Holder or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Trustee without the
possession of any of the Notes, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery
of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes.
In any proceedings brought by the Trustee (and in any proceedings involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Notes, and it shall not be necessary to make any Holders of the Notes parties to any such proceedings.
In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or
abandoned because of any waiver pursuant to Section 6.09 or any rescission and annulment pursuant to Section 6.02 or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the
Holders and the Trustee shall, subject to any determination in such proceeding, be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the Holders and the Trustee shall continue
as though no such proceeding had been instituted.
37
Section 6.05.
Application of Monies Collected by Trustee
.
Any monies collected
by the Trustee pursuant to this Article 6 with respect to the Notes shall be applied in the following order, at the date or dates fixed by the Trustee for the distribution of such monies, upon presentation of the several Notes, and stamping thereon
the payment, if only partially paid, and upon surrender thereof, if fully paid:
First
, to the payment of all amounts due the
Trustee, including its agent and counsel, under Section 7.06;
Second
, in case the principal of the outstanding Notes shall not
have become due and be unpaid, to the payment of interest on, and any cash due upon conversion of, the Notes in default in the order of the date due of the payments of such interest and cash due upon conversion, as the case may be, with interest (to
the extent that such interest has been collected by the Trustee) upon such overdue payments at the rate borne by the Notes at such time, such payments to be made ratably to the Persons entitled thereto;
Third
, in case the principal of the outstanding Notes shall have become due, by declaration or otherwise, and be unpaid to the payment
of the whole amount (including, if applicable, the payment of the Fundamental Change Repurchase Price and any cash due upon conversion) then owing and unpaid upon the Notes for principal and interest, if any, with interest on the overdue principal
and, to the extent that such interest has been collected by the Trustee, upon overdue installments of interest at the rate borne by the Notes at such time, and in case such monies shall be insufficient to pay in full the whole amounts so due and
unpaid upon the Notes, then to the payment of such principal (including, if applicable, the Fundamental Change Repurchase Price and any cash due upon conversion) and interest without preference or priority of principal over interest, or of interest
over principal or of any installment of interest over any other installment of interest, or of any Note over any other Note, ratably to the aggregate of such principal (including, if applicable, the Fundamental Change Repurchase Price and any cash
due upon conversion) and accrued and unpaid interest; and
Fourth
, to the payment of the remainder, if any, to the Company.
Section 6.06.
Proceedings by Holders
.
Except to enforce the right to receive payment of principal (including, if
applicable, the Fundamental Change Repurchase Price) or interest when due, or the right to receive payment or delivery of the consideration due upon conversion, no Holder of any Note shall have any right by virtue of or by availing of any provision
of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture, or for the appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any other
remedy hereunder, unless:
(a) such Holder previously shall have given to the Trustee notice of an Event of Default and of the continuance
thereof, as herein provided;
38
(b) Holders of at least 25% in aggregate principal amount of the Notes then outstanding shall
have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder;
(c) such
Holders shall have offered to the Trustee such security or indemnity reasonably satisfactory to it against any loss, liability or expense to be incurred therein or thereby;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of such security or indemnity, shall have failed to institute
any such action, suit or proceeding; and
(e) no direction that, in the opinion of the Trustee, is inconsistent with such written request
shall have been given to the Trustee by the Holders of a majority of the aggregate principal amount of the Notes then outstanding within such
60-day
period pursuant to Section 6.09,
it being understood and intended, and being expressly covenanted by the taker and Holder of every Note with every other taker and Holder and the Trustee that
no one or more Holders shall have any right in any manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders (except as otherwise provided herein). For the protection and
enforcement of this Section 6.06, each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision of this Indenture and any provision of any Note, each Holder shall have the contractual right to receive
payment or delivery, as the case may be, of (x) the principal (including the Fundamental Change Repurchase Price, if applicable) of, (y) accrued and unpaid interest, if any, on, and (z) the consideration due upon conversion of, such
Note, on or after the respective due dates expressed or provided for in such Note or in this Indenture, and the contractual right to institute suit for the enforcement of any such payment or delivery, as the case may be, on or after such respective
dates, shall not be amended without the consent of each Holder.
Section 6.07.
Proceedings by Trustee
.
In case of an
Event of Default, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either by suit in
equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any
other legal or equitable right vested in the Trustee by this Indenture or by law.
Section 6.08.
Remedies Cumulative and
Continuing
.
Except as provided in the last paragraph of Section 2.06, all powers and remedies given by this Article 6 to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of
any thereof or of any other powers and remedies available to the Trustee or the Holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants
39
and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Notes to exercise any right or power accruing upon any Default or Event of
Default shall impair any such right or power, or shall be construed to be a waiver of any such Default or Event of Default or any acquiescence therein; and, subject to the provisions of Section 6.06, every power and remedy given by this Article
6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.
Section 6.09.
Direction of Proceedings and Waiver of Defaults by Majority of Holders
.
The Holders of a majority of the
aggregate principal amount of the Notes at the time outstanding determined in accordance with Section 8.04 shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Notes;
provided
,
however
, that (a) such direction shall not be in conflict with any rule of law or with this Indenture, and (b) the Trustee may take
any other action deemed proper by the Trustee that is not inconsistent with such direction. The Trustee may refuse to follow any direction that it determines is unduly prejudicial to the rights of any other Holder or that would involve the Trustee
in personal liability. The Holders of a majority in aggregate principal amount of the Notes at the time outstanding determined in accordance with Section 8.04 may on behalf of the Holders of all of the Notes (x) waive any past Default or
Event of Default hereunder and its consequences except (i) a default in the payment of accrued and unpaid interest, if any, on, or the principal (including any Fundamental Change Repurchase Price) of, the Notes when due that has not been cured
pursuant to the provisions of Section 6.01, (ii) a failure by the Company to pay or deliver, as the case may be, the consideration due upon conversion of the Notes or (iii) a default in respect of a covenant or provision hereof which under
Article 10 cannot be modified or amended without the consent of each Holder of an outstanding Note affected; and (y) rescind any resulting acceleration of the Notes and its consequences if (i) such rescission would not conflict with any
judgment or decree of a court of competent jurisdiction and (ii) all existing Events of Default (other than nonpayment of the principal of, and interest on, the Notes that have become due solely by such acceleration) have been cured or waived.
Upon any such waiver the Company, the Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right
consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as permitted by this Section 6.09, said Default or Event of Default shall for all purposes of the Notes and this Indenture be deemed to have been
cured and to be not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
Section 6.10.
Notice of Defaults
.
The Trustee shall, after the occurrence and continuance of a Default of which it has
knowledge, deliver to all Holders notice of such Default within 90 days after such Default occurs, unless such Defaults shall have been cured or waived before the giving of such notice;
provided
that, except in the case of a Default in the
payment of the principal of (including the Fundamental Change Repurchase Price, if applicable), or accrued and unpaid interest on, any of the Notes or a Default in the payment or delivery of the consideration due upon conversion, the Trustee shall
be protected in withholding such notice if and so long as a Responsible Officer of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders.
40
Section 6.11.
Undertaking to Pay Costs
.
All parties to this Indenture agree,
and each Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees
and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant;
provided
that the provisions of this Section 6.11 (to the extent permitted by
law) shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Notes at the time outstanding determined in accordance with
Section 8.04, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or accrued and unpaid interest, if any, on any Note (including, but not limited to, the Fundamental Change Repurchase Price, if
applicable) on or after the due date expressed or provided for in such Note or to any suit for the enforcement of the right to convert any Note, or receive the consideration due upon conversion, in accordance with the provisions of Article 14.
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ARTICLE 7
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C
ONCERNING
THE
T
RUSTEE
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Section 7.01.
Duties and Responsibilities of Trustee
.
The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiver of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In the event an Event of Default has occurred and is continuing, the
Trustee shall exercise such of 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;
provided
that, subject to the provisions of this Article 7, the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such
Holders have offered to the Trustee indemnity or security reasonably satisfactory to it against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action, its own grossly
negligent failure to act or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default that may have occurred:
(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
41
(ii) in the absence of bad faith and willful misconduct on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture;
but, in the case of any such certificates or opinions that by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein);
(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it
shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a majority of the aggregate principal amount of the Notes at the time outstanding determined as provided in
Section 8.04 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(d) whether or not therein provided, 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;
(e) the Trustee shall not be liable in respect of any
payment (as to the correctness of amount, entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent (except in its capacity as Paying Agent pursuant to the terms of this Indenture) or any
records maintained by any
co-Note
Registrar with respect to the Notes;
(f) if any party fails to
deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred,
unless a Responsible Officer of the Trustee had actual knowledge of such event;
(g) in the absence of written investment direction from
the Company, all cash received by the Trustee shall be placed in a
non-interest
bearing trust account, and in no event shall the Trustee be liable for the selection of investments or for investment losses
incurred thereon or for losses incurred as a result of the liquidation of any such investment prior to its maturity date or the failure of the party directing such investments prior to its maturity date or the failure of the party directing such
investment to provide timely written investment direction, and the Trustee shall have no obligation to invest or reinvest any amounts held hereunder in the absence of such written investment direction from the Company; and
42
(h) in the event that the Trustee is also acting as Custodian, Note Registrar, Paying Agent,
Conversion Agent, Bid Solicitation Agent or transfer agent hereunder, the rights and protections afforded to the Trustee pursuant to this Article 7 shall also be afforded to such Custodian, Note Registrar, Paying Agent, Conversion Agent, Bid
Solicitation Agent or transfer agent.
None of the provisions contained in this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers.
Section 7.02
.
Reliance on Documents, Opinions, Etc
.. Except as otherwise provided in Section 7.01:
(a) The Trustee may conclusively rely and shall be fully protected in acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, note, coupon or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties.
(b) Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officer’s Certificate
(unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company. Before the Trustee acts or
refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of
Counsel.
(c) The Trustee may consult with counsel and require an Opinion of Counsel and any advice of such counsel or Opinion of Counsel
shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in reliance on such advice or Opinion of Counsel.
(d) 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, direction, consent, order, bond, debenture or 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,
and, if the Trustee shall determine in its reasonable judgment to make such further inquiry or investigation, it shall be entitled, at a reasonable time on any Business Day after reasonable notice, to examine the books, records and premises of the
Company, personally or by agent or attorney at the expense of the Company and shall incur no liability of any kind by reason of such inquiry or investigation.
(e) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents,
custodians, nominees or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent, custodian, nominee or attorney appointed by it with due care hereunder, and the permissive rights of the Trustee
enumerated herein shall not be construed as duties.
43
(f) The Trustee shall not be required to give any bond or surety in respect of the execution of
the trusts and powers under this Indenture.
(g) The Trustee may request that the Company deliver an Officer’s Certificate setting
forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person authorized to sign an Officer’ Certificate,
including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(h) The Trustee shall not
be deemed to have notice of any Default or Event of Default (except in the case of a Default or Event of Default in payment of scheduled principal of, premium, if any, or interest on, any Note) unless a Responsible 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 (and stating the occurrence of a Default or Event of Default) is received by the Trustee at the Corporate Trust Office of the Trustee, and
such notice references the Notes and this Indenture.
(i) The Trustee shall not be responsible or liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or within its rights or powers.
(j) The Trustee shall not be
responsible or liable for any action taken or omitted by it in good faith at the direction of the holders of not less than a majority in principal amount of the Notes as to the time, method and place of conducting any proceedings for any remedy
available to the Trustee or the exercising of any power conferred by this Indenture.
(k) Neither the Trustee nor any of its directors,
officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Company, or any of their respective directors, members, officers, agents, affiliates or employee, nor shall it have
any liability in connection with the malfeasance or nonfeasance by such party. The Trustee shall not be responsible for any inaccuracy in the information obtained from the Company or for any inaccuracy or omission in the records which may result
from such information or any failure by the Trustee to perform its duties as set forth herein as a result of any inaccuracy or incompleteness.
(l) In no event shall the Trustee be responsible or liable for punitive, special, indirect or any consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action other than any such loss or damage caused by the Trustee’s willful
misconduct or gross negligence. The Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes, unless either (1) a Responsible Officer shall have actual knowledge of such Default or Event of
Default or (2) written notice of such Default or Event of Default shall have been given to the Trustee by the Company or by any Holder of the Notes.
(m) Neither the Trustee nor any Agent shall have any responsibility or liability for any actions taken or not taken by the Depositary.
44
Section 7.03.
No Responsibility for Recitals, Etc
.
.
The recitals contained
herein and in the Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the Company of any Notes or the proceeds of any Notes authenticated and delivered by the Trustee in conformity with
the provisions of this Indenture.
Section 7.04.
Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note
Registrar May Own Notes
.
The Trustee, any Paying Agent, any Conversion Agent, Bid Solicitation Agent or Note Registrar (in each case, if other than an Affiliate of the Company), in its individual or any other capacity, may become the
owner or pledgee of Notes with the same rights it would have if it were not the Trustee, Paying Agent, Conversion Agent, Bid Solicitation Agent or Note Registrar.
Section 7.05.
Monies and Shares of Common Stock to Be Held in Trust
.
All monies and shares of Common Stock received by the
Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received. Money and shares of Common Stock held by the Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as may be agreed from time to time by the Company and the Trustee.
Section 7.06.
Compensation and Expenses of Trustee
.
The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, compensation for all services rendered by it hereunder in any capacity (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as mutually agreed
to in writing between the Trustee and the Company, and the Company will pay or reimburse the Trustee upon its request for all expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this
Indenture in any capacity thereunder (including the compensation and the reasonable expenses and disbursements of its agents and counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have
been caused by its gross negligence, willful misconduct or bad faith. The Company also covenants to indemnify the Trustee in any capacity under this Indenture and any other document or transaction entered into in connection herewith and its agents
and any authenticating agent for, and to hold them harmless against, any loss, claim, damage, liability or expense (including attorneys’ fees) incurred without gross negligence, willful misconduct or bad faith on the part of the Trustee, its
officers, directors, agents or employees, or such agent or authenticating agent, as the case may be, and arising out of or in connection with the acceptance or administration of this Indenture or in any other capacity hereunder (whether such claims
arise by or against the Company or a third person), including the reasonable costs and expenses of defending themselves against any claim of liability in the premises or enforcing the Company’s obligations hereunder. The obligations of the
Company under this Section 7.06 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall be secured by a senior claim to which the Notes are hereby made subordinate on all money
or property held or collected by the Trustee,
45
except, subject to the effect of Section 6.05, funds held in trust herewith for the benefit of the Holders of particular Notes. The Trustee’s right to receive payment of any amounts due
under this Section 7.06 shall not be subordinate to any other liability or indebtedness of the Company. The obligation of the Company under this Section 7.06 shall survive the satisfaction and discharge of this Indenture and the earlier
resignation or removal of the Trustee. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The indemnification provided in this Section 7.06 shall extend to the officers,
directors, agents and employees of the Trustee.
Without prejudice to any other rights available to the Trustee under applicable law, when
the Trustee and its agents and any authenticating agent incur expenses or render services after an Event of Default specified in Section 6.01(h) or Section 6.01(i) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any bankruptcy, insolvency or similar laws.
Section 7.07.
Officer’s Certificate
as Evidence
.
Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or
omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of gross negligence or willful misconduct on the part of the Trustee, be deemed to be conclusively proved and
established by an Officer’s Certificate delivered to the Trustee, and such Officer’s Certificate, in the absence of gross negligence or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action
taken or omitted by it under the provisions of this Indenture upon the faith thereof.
Section 7.08.
Eligibility of
Trustee
.
There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act (as if the Trust Indenture Act were applicable hereto) to act as such and has a combined capital and
surplus of at least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 7.09.
Resignation or
Removal of Trustee
.
(a) The Trustee may at any time resign by giving written notice of such resignation to the Company. Upon receiving
such notice of resignation, the Company shall promptly notify all Holders and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 60 days after the giving of such notice of resignation to the Holders, the resigning Trustee may, upon
ten Business Days’ notice to the Company and the Holders, petition any court of competent jurisdiction for the appointment of a successor trustee, or any Holder who has been a bona fide holder of a Note or Notes for at least six months (or
46
since the date of this Indenture) may, subject to the provisions of Section 6.11, on behalf of himself or herself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.08 and shall fail to resign
after written request therefor by the Company or by any such Holder, or
(ii) the Trustee shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in either case, the Company may by a Board Resolution remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.11, any Holder
who has been a bona fide holder of a Note or Notes for at least six months (or since the date of this Indenture) may, on behalf of himself or herself and all others similarly situated, petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the Notes at the time outstanding, as determined in accordance with
Section 8.04, may at any time remove the Trustee and nominate a successor trustee that shall be deemed appointed as successor trustee unless within ten days after notice to the Company of such nomination the Company objects thereto, in which
case the Trustee so removed or any Holder, upon the terms and conditions and otherwise as in Section 7.09(a) provided, may petition any court of competent jurisdiction for an appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this
Section 7.09 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.10.
Section 7.10.
Acceptance by Successor Truste
e
.
Any successor trustee appointed as provided in Section 7.09
shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee herein; but, nevertheless, on the written
request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such
47
successor trustee all the rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a senior claim to which the Notes are hereby made subordinate on all money or property held or
collected by such trustee as such, except for funds held in trust for the benefit of Holders of particular Notes, to secure any amounts then due it pursuant to the provisions of Section 7.06.
No successor trustee shall accept appointment as provided in this Section 7.10 unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 7.08.
Upon acceptance of appointment by a successor trustee as provided in
this Section 7.10, each of the Company and the successor trustee, at the written direction and at the expense of the Company shall deliver or cause to be delivered notice of the succession of such trustee hereunder to the Holders. If the
Company fails to deliver such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be delivered at the expense of the Company.
Section 7.11.
Succession by Merger, Etc
. Any corporation or other entity into which the Trustee may
be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other entity succeeding to all or
substantially all of the corporate trust business of the Trustee (including the administration of this Indenture), shall be the successor to the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of
the parties hereto;
provided
that in the case of any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee such corporation or other entity shall be eligible under the provisions of
Section 7.08.
In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture, any of the
Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee or authenticating agent appointed by such predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee or an authenticating agent appointed by such successor trustee may authenticate such Notes either in the name of any predecessor
trustee hereunder or in the name of the successor trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have;
provided
,
however
, that the right to adopt the certificate of authentication of any predecessor trustee or to authenticate Notes in the name of any predecessor trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 7.12.
Trustee’s Application for Instructions from the Company
.
Any
application by the Trustee for written instructions from the Company (other than with regard to any action proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders of the Notes under this Indenture) may, at
the option of the Trustee, set forth in writing any
48
action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not
be liable to the Company for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after
the date any officer that the Company has indicated to the Trustee should receive such application actually receives such application, unless any such officer shall have consented in writing to any earlier date), unless, prior to taking any such
action (or the effective date in the case of any omission), the Trustee shall have received written instructions in accordance with this Indenture in response to such application specifying the action to be taken or omitted.
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ARTICLE 8
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C
ONCERNING
THE
H
OLDERS
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Section 8.01.
Action by Holders
.
Whenever in this Indenture it is provided that the Holders of a specified percentage of
the aggregate principal amount of the Notes may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action, the
Holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing, or (b) by the record of
the Holders voting in favor thereof at any meeting of Holders duly called and held in accordance with the provisions of Article 9, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Holders.
Whenever the Company or the Trustee solicits the taking of any action by the Holders of the Notes, the Company or the Trustee may, but shall not be required to, fix in advance of such solicitation, a date as the record date for determining Holders
entitled to take such action. The record date if one is selected shall be not more than fifteen days prior to the date of commencement of solicitation of such action.
Section 8.02.
Proof of Execution by Holders
.
Subject to the provisions of Section 7.01, Section 7.02 and
Section 9.05, proof of the execution of any instrument by a Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar. The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.
Section 8.03.
Who Are Deemed Absolute Owners
.
The Company, the Trustee, any authenticating agent, any Paying Agent, any
Conversion Agent and any Note Registrar may deem the Person in whose name a Note shall be registered upon the Note Register to be, and may treat it as, the absolute owner of such Note (whether or not such Note shall be overdue and notwithstanding
any notation of ownership or other writing thereon made by any Person other than the Company or any Note Registrar) for the purpose of receiving payment of or on account of the principal (including any Fundamental Change Repurchase Price) of and
(subject to Section 2.03) accrued and unpaid interest on such Note, for conversion of such Note and for all other purposes; and neither the Company nor the Trustee nor any Paying Agent nor any Conversion
49
Agent nor any Note Registrar shall be affected by any notice to the contrary. All such payments or deliveries so made to any Holder for the time being, or upon its order, shall be valid, and, to
the extent of the sums or shares of Common Stock so paid or delivered, effectual to satisfy and discharge the liability for monies payable or shares deliverable upon any such Note. Notwithstanding anything to the contrary in this Indenture or the
Notes following an Event of Default, any holder of a beneficial interest in a Global Note may directly enforce against the Company, without the consent, solicitation, proxy, authorization or any other action of the Depositary or any other Person,
such holder’s right to exchange such beneficial interest for a Note in certificated form in accordance with the provisions of this Indenture.
Section 8.04.
Company-Owned Notes Disregarded
.
In determining whether the Holders of the requisite aggregate principal
amount of Notes have concurred in any direction, consent, waiver or other action under this Indenture, Notes that are owned by the Company, by any Subsidiary thereof or by any Affiliate of the Company or any Subsidiary thereof shall be disregarded
and deemed not to be outstanding for the purpose of any such determination;
provided
that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent, waiver or other action only Notes that
a Responsible Officer actually knows are so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as outstanding for the purposes of this Section 8.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right to so act with respect to such Notes and that the pledgee is not the Company, a Subsidiary thereof or an Affiliate of the Company or a Subsidiary thereof. In the case of a dispute as to such
right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying all
Notes, if any, known by the Company to be owned or held by or for the account of any of the above described Persons; and, subject to Section 7.01, the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of
the facts therein set forth and of the fact that all Notes not listed therein are outstanding for the purpose of any such determination.
Section 8.05.
Revocation of Consents; Future Holders Bound
.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 8.01, of the taking of any action by the Holders of the percentage of the aggregate principal amount of the Notes specified in this Indenture in connection with such action, any Holder of a Note that is shown by
the evidence to be included in the Notes the Holders of which have consented to such action may, by filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Note. Except as aforesaid, any such action taken by the Holder of any Note shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Note and of any Notes issued in exchange or
substitution therefor or upon registration of transfer thereof, irrespective of whether any notation in regard thereto is made upon such Note or any Note issued in exchange or substitution therefor or upon registration of transfer thereof.
50
ARTICLE 9
H
OLDERS
’ M
EETINGS
Section 9.01
. Purpose of Meetings
.
A meeting of Holders may be called at any time and from time to time pursuant to the
provisions of this Article 9 for any of the following purposes:
(a) to give any notice to the Company or to the Trustee or to give any
directions to the Trustee permitted under this Indenture, or to consent to the waiving of any Default or Event of Default hereunder (in each case, as permitted under this Indenture) and its consequences, or to take any other action authorized to be
taken by Holders pursuant to any of the provisions of Article 6;
(b) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article 7;
(c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions
of Section 10.02; or
(d) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate
principal amount of the Notes under any other provision of this Indenture or under applicable law.
Section 9.02
. Call of Meetings
by Trustee
.
The Trustee may at any time call a meeting of Holders to take any action specified in Section 9.01, to be held at such time and at such place as the Trustee shall determine. Notice of every meeting of the Holders, setting
forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting and the establishment of any record date pursuant to Section 8.01, shall be delivered to Holders of such Notes. Such notice shall also
be delivered to the Company. Such notices shall be delivered not less than 20 nor more than 90 days prior to the date fixed for the meeting.
Any meeting of Holders shall be valid without notice if the Holders of all Notes then outstanding are present in person or by proxy or if
notice is waived before or after the meeting by the Holders of all Notes then outstanding, and if the Company and the Trustee are either present by duly authorized representatives or have, before or after the meeting, waived notice.
Section 9.03
. Call of Meetings by Company or Holders
.
In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% of the aggregate principal amount of the Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by written request setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have delivered the notice of such meeting within 20 days after receipt of such request, then the Company or such Holders may determine the time and the place for such meeting and may call such meeting to take any
action authorized in Section 9.01, by delivering notice thereof as provided in Section 9.02.
51
Section 9.04
. Qualifications for Voting
.
To be entitled to vote at any meeting
of Holders a Person shall (a) be a Holder of one or more Notes on the record date pertaining to such meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Notes on the record date pertaining
to such meeting. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
Section 9.05
. Regulations
.
Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders, in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 9.03, in which case the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Holders of a majority in aggregate principal amount of the Notes represented at the meeting and entitled to vote at the meeting.
Subject to the provisions of Section 8.04, at any meeting of Holders each Holder or proxyholder shall be entitled to one vote for each $1,000
principal amount of Notes held or represented by him or her;
provided
,
however
, that no vote shall be cast or counted at any meeting in respect of any Note challenged as not outstanding and ruled by the chairman of the meeting to be
not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Notes held by it or instruments in writing as aforesaid duly designating it as the proxy to vote on behalf of other Holders. Any meeting of Holders duly
called pursuant to the provisions of Section 9.02 or Section 9.03 may be adjourned from time to time by the Holders of a majority of the aggregate principal amount of Notes represented at the meeting, whether or not constituting a quorum, and the
meeting may be held as so adjourned without further notice.
Section 9.06
. Voting
.
The vote upon any resolution
submitted to any meeting of Holders shall be by written ballot on which shall be subscribed the signatures of the Holders or of their representatives by proxy and the outstanding aggregate principal amount of the Notes held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was delivered as provided in Section 9.02. The record shall
show the aggregate principal amount of the Notes voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be
delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
52
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
Section 9.07
. No Delay of Rights by Meeting
.
Nothing contained in this Article 9 shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or
to the Holders under any of the provisions of this Indenture or of the Notes.
ARTICLE 10
S
UPPLEMENTAL
I
NDENTURES
Section 10.01
. Supplemental Indentures Without Consent of Holders
.
The Company, when authorized by the resolutions of the
Board of Directors and the Trustee, at the Company’s expense, may from time to time and at any time amend this Indenture for one or more of the following purposes:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to provide for the assumption by a Successor Company of the obligations of the Company under this Indenture pursuant to Article 11;
(c) to add guarantees with respect to the Notes;
(d) to secure the Notes;
(e) to
add to the covenants or Events of Default of the Company for the benefit of the Holders or surrender any right or power conferred upon the Company;
(f) to make any change that does not adversely affect the rights of any Holder;
(g) in connection with any Share Exchange Event, to provide that the notes are convertible into Reference Property, subject to the provisions
of Section 14.02, and make such related changes to the terms of the Notes to the extent expressly required by Section 14.07;
(h) increase
the Conversion Rate as provided in this Indenture;
(i) provide for the issuance of additional Notes in accordance with Section 2.10;
(j) comply with the rules of any applicable securities depositary in a manner that does not adversely affect the rights of any Holder;
(k) irrevocably elect or eliminate one of the Settlement Methods and/or irrevocably elect a Specified Dollar Amount; or
(l) to conform the provisions of this Indenture or the Notes to the “Description of notes” section of the Offering Memorandum.
53
Upon the written request of the Company, the Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to, but may in its discretion, enter into any supplemental
indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture
authorized by the provisions of this Section 10.01 may be executed by the Company and the Trustee without the consent of the Holders of any of the Notes at the time outstanding, notwithstanding any of the provisions of Section 10.02.
Section 10.02
. Supplemental Indentures with Consent of Holders
.
With the consent (evidenced as provided in Article 8) of
the Holders of at least a majority of the aggregate principal amount of the Notes then outstanding (determined in accordance with Article 8 and including, without limitation, consents obtained in connection with a repurchase of, or tender or
exchange offer for, Notes), the Company, when authorized by the resolutions of the Board of Directors and the Trustee, at the Company’s expense, may from time to time and at any time enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, any supplemental indenture or the Notes or of modifying in any manner the rights of the Holders;
provided
,
however
, that, without the consent of each Holder of an outstanding Note affected, no such supplemental indenture shall:
(a) reduce
the amount of Notes whose Holders must consent to an amendment;
(b) reduce the rate of or extend the stated time for payment of interest
on any Note;
(c) reduce the principal of or extend the Maturity Date of any Note;
(d) make any change that adversely affects the conversion rights of any Notes other than as required by this Indenture;
(e) reduce the Fundamental Change Repurchase Price of any Note or amend or modify in any manner adverse to the Holders the Company’s
obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise;
(f)
make any Note payable in a currency, or at a place of payment, other than that stated in the Note;
(g) change the ranking of the Notes;
(h) change the provisions described in Section 4.10; or
(i) make any change in this Article 10 that requires each Holder’s consent or in the waiver provisions in Section 6.02 or
Section 6.09.
54
Upon the written request of the Company, and upon the filing with the Trustee of evidence of the
consent of Holders as aforesaid and subject to Section 10.05, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
Holders do not need under this Section 10.02 to approve the particular form of any proposed supplemental indenture. It shall be sufficient if
such Holders approve the substance thereof. After any such supplemental indenture becomes effective, the Company shall deliver to the Holders a notice briefly describing such supplemental indenture. However, the failure to give such notice to all
the Holders, or any defect in the notice, will not impair or affect the validity of the supplemental indenture.
Section 10.03
.
Effect of Supplemental Indentures
.
Upon the execution of any supplemental indenture pursuant to the provisions of this Article 10, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective
rights, limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and
amendments and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 10.04
. Notation on Notes
.
Notes authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article 10 may, at the Company’s expense, bear a notation as to any matter provided for in such supplemental indenture. If the Company or the Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may, at the Company’s expense, be prepared and executed by the Company, authenticated, upon receipt of a Company Order, by
the Trustee (or an authenticating agent duly appointed by the Trustee pursuant to Section 17.10) and delivered in exchange for the Notes then outstanding, upon surrender of such Notes then outstanding.
Section 10.05
. Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee
.
In addition to the documents
required by Section 17.05, the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the requirements of this Article 10 and is
permitted or authorized by this Indenture such Opinion of Counsel to include a customary legal opinion stating that such supplemental indenture is the valid and binding obligation of the Company, subject to customary exceptions and qualifications.
ARTICLE 11
C
ONSOLIDATION
, M
ERGER
, S
ALE
, C
ONVEYANCE
AND
L
EASE
Section 11.01
. Company May Consolidate, Etc. on Certain Terms
.
Subject to the provisions of Section 11.02, the Company
shall not consolidate with, merge with or into, or sell, convey, transfer or lease all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries, taken as a whole, to another Person, unless:
55
(a) the resulting, surviving or transferee Person (the “
Successor Company
”), if
not the Company, shall be (1) a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia, or (2) a corporation or entity treated as a corporation for U.S. federal
income tax purposes organized and existing under the laws of the Islands of Bermuda, the Netherlands, Belgium, Switzerland, Luxembourg, the Republic of Ireland, Canada or the United Kingdom, and the Successor Company (if not the Company) shall
expressly assume, by supplemental indenture all of the obligations of the Company under the Notes and this Indenture (including, for the avoidance of doubt, the obligation to pay Additional Amounts, as set forth in Section 4.10); and
(b) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing under this
Indenture
Section 11.02
. Successor Company to Be Substituted
.
In case of any such consolidation, merger, sale,
conveyance, transfer or lease and upon the assumption by the Successor Company, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal of and accrued
and unpaid interest on all of the Notes, the due and punctual delivery and/or payment, as the case may be, of any consideration due upon conversion of the Notes and the due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Company, such Successor Company (if not the Company) shall succeed to and, except in the case of a lease of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries,
taken as a whole, shall be substituted for the Company, with the same effect as if it had been named herein as the party of the first part, and the Company shall be discharged from its obligations under the Notes and this Indenture (except in the
case of a lease of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries, taken as a whole). Such Successor Company thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company any or all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such Successor Company 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 Notes that previously shall have been signed and delivered by the Officers of the
Company to the Trustee for authentication, and any Notes that such Successor Company thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Notes so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Notes had been issued at the date of the execution hereof. In the event of any such consolidation,
merger, sale, conveyance or transfer (but not in the case of a lease), upon compliance with this Article 11 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 11) may be dissolved, wound up and liquidated at any time thereafter and, except in the case of a lease, such Person shall be released from its liabilities as obligor and maker of the Notes and from its
obligations under this Indenture and the Notes.
56
In case of any such consolidation, merger, sale, conveyance, transfer or lease, such changes in
phraseology and form (but not in substance) may be made in the Notes thereafter to be issued as may be appropriate.
Section 11.03
. Opinion of Counsel to Be Given to Trustee
.
If a supplemental indenture is required pursuant to this Article
11, no such consolidation, merger, sale, conveyance, transfer or lease shall be effective unless the Trustee shall receive an Officer’s 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 11.
ARTICLE 12
I
MMUNITY
OF
I
NCORPORATORS
, S
TOCKHOLDERS
, O
FFICERS
AND
D
IRECTORS
Section 12.01
. Indenture and Notes Solely Corporate Obligations
.
No recourse for the payment
of the principal of or accrued and unpaid interest on, or the payment or delivery of consideration due upon conversion of, any Note, nor for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any Note, nor because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent, Officer
or director or Subsidiary, as such, past, present or future, of the Company or of any successor company, either directly or through the Company or any successor company, whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the
Notes.
ARTICLE 13
[I
NTENTIONALLY
O
MITTED
]
ARTICLE 14
C
ONVERSION
OF
N
OTES
Section 14.01
. Conversion Privilege
.
(a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s
option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the
close of business on the Business Day immediately preceding May 15, 2024 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after
May 15, 2024 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 13.6210 shares of Common Stock (subject to adjustment as provided in
this Article 14, the “
Conversion Rate
”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “
Conversion Obligation
”).
57
(b) (i) Prior to the close of business on the Business Day immediately preceding
May 15, 2024, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “
Measurement Period
”) in which
the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last
Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day (the “
Trading Price Condition
”). The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this
subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers
selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000
principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine
the Trading Price per $1,000 principal amount of Notes) unless a Holder a Note provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the
Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting
as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is
greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to
obtain bids when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid
Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product
of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price Condition has been met, the Company shall so notify the Holders, the Trustee and the Conversion Agent (if other
than the Trustee). If, at any time after the Trading Price Condition has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the
Conversion Rate for such date, the Company shall so notify the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
58
(ii) If, prior to the close of business on the Business Day immediately preceding May 15, 2024, the Company elects to:
(A) issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than pursuant to a
stockholder rights plan, so long as such rights have not separated from the shares of Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of
Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of 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; or
(B) distribute to all or substantially all holders of Common Stock the Company’s assets, securities
or rights to purchase securities of the Company (other than pursuant to a stockholder rights plan, so long as such rights have not separated from the shares of Common Stock), which distribution has a per share value, as reasonably determined by the
Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution,
then, in either case, the Company shall notify all Holders of the Notes at least 50 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or
distribution. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend
Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, even if the Notes are not otherwise convertible at such time.
(iii) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the
close of business on the Business Day immediately preceding May 15, 2024, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange
Event that occurs prior to the close of business on the Business Day immediately preceding May 15, 2024 (each such Fundamental Change, Make-Whole Fundamental Change or Share Exchange Event, a “
Corporate Event
”), all or any
portion of a Holder’s Notes may be surrendered for conversion at any time from or after the date that is 35 Scheduled Trading Days prior to the anticipated effective date of the Corporate Event (or, if later, the earlier of (x) the
Business Day after the Company gives notice of such Corporate Event and (y) the actual effective date of such Corporate Event) until 35 Trading Days after the actual effective date of such Corporate Event or, if such Corporate Event also
constitutes a Fundamental Change, until the related Fundamental Change Repurchase Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) (i) as promptly as practicable following the date the
Company publicly announces such Corporate Event, but in no event less than 35 Scheduled Trading Days prior to the anticipated effective date of such Corporate Event; or (ii) if the Company does not have knowledge of the anticipated effective
date of such Corporate Event, at least 35 Scheduled Trading Days prior to the anticipated effective date of such Corporate Event, within three Business
59
Days of the date upon which the Company receives notice, or otherwise become aware, of the anticipated effective date of such Corporate Event, but in no event later than the actual effective date
of such Corporate Event. The anticipated effective date of any such Corporate Event shall be determined by the Company in its reasonable discretion, and in no event shall the Company be deemed to have knowledge of the anticipated effective date of a
merger prior to entering into the related merger agreement.
(iv) Prior to the close of business on the Business Day
immediately preceding May 15, 2024, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on December 31, 2017 (and only during such
calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately
preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day (the “
Sale Price Condition
”). If the Sale Price Condition has been met, the Company shall so notify the Holders, the
Trustee and the Conversion Agent (if other than the Trustee).
Section 14.02
. Conversion Procedure; Settlement Upon
Conversion.
(a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall
pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“
Cash Settlement
”), shares of Common Stock, together with cash, if applicable, in lieu of
delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“
Physical Settlement
”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of
delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02 (“
Combination Settlement
”), at its election, as set forth in this Section 14.02.
(i) All conversions for which the relevant Conversion Date occurs on or after May 15, 2024 shall be settled using the same
Settlement Method.
(ii) Except for any conversions for which the relevant Conversion Date occurs on or after May 15,
2024, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.
(iii) If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of
parentheses, as the case may be), the Company elects to deliver a notice (the “
Settlement Notice
”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver
such Settlement Notice to converting Holders through the Trustee no later than the close of business on the second Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions for which the relevant Conversion
Date occurs on or after May 15, 2024, no later than May 15, 2024). If the Company does not elect a
60
Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company
shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant
Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing
Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be
deemed to be $1,000.
(iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of
any conversion of Notes (the “
Settlement Amount
”) shall be computed as follows:
(A) if the Company elects
to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock
equal to the Conversion Rate;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such conversion
by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days
during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its
Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount
equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the
Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any
fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of
delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
61
(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note
as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to the interest payable on the next Interest Payment Date to which
such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or
a facsimile thereof) (a “
Notice of Conversion
”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the
certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate
endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date
to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice
of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change
Repurchase Notice in accordance with Section 15.03.
(c) A Note shall be deemed to have been converted immediately prior to the close of
business on the date (the “
Conversion Date
”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as
the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business Day immediately
following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the
Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s
Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall
authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment
of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may
be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
62
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or
similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder shall pay
that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such
Holder in accordance with the immediately preceding sentence.
(f) Except as provided in Section 14.04, no adjustment shall be made for
dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of
an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing
of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h) Upon conversion, a Holder shall not receive
any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note,
and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than
cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the
foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding
Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be
accompanied by funds equal to the amount of interest payable on the Notes so converted;
provided
that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date;
(2) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (3) to the extent of any
Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date or any
Fundamental Change Repurchase Date described in clause (2) above shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted or
repurchased, as applicable, following such Regular Record Date.
(i) The Person in whose name the shares of Common Stock shall be issuable
upon conversion shall become the stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant
Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
63
(j) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes
and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of Physical Settlement) or based on the Daily VWAP for the last
Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of shares that shall be issued upon conversion
thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.
Section 14.03
. Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental
Changes
.
(a) If the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date and a Holder elects to convert
its Notes in connection with such Make-Whole Fundamental Change, the Company shall, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock
(the “
Additional Shares
”), as described below. A conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Notice of Conversion is received by the
Conversion Agent from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental
Change that would have been a Fundamental Change but for the
proviso
in clause (b) of the definition thereof, the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change) (such period, the
“
Make-Whole Fundamental Change Period
”).
(b) Upon surrender of Notes for conversion in connection with a Make-Whole
Fundamental Change pursuant to Section 14.01(b)(iii), the Company shall, at its option, satisfy the related Conversion Obligation by Physical Settlement, Cash Settlement or Combination Settlement in accordance with Section 14.02;
provided
,
however
, that if, at the effective time of a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash,
for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000
principal amount of converted Notes equal to the Conversion Rate (including any adjustment for Additional Shares),
multiplied by
such Stock Price. In such event, the Conversion Obligation shall be paid to Holders in cash on the second
Business Day following the Conversion Date. The Company shall notify the Holders of Notes of the Effective Date of any Make-Whole Fundamental Change and issue a press release announcing such Effective Date no later than five Business Days after such
Effective Date.
64
(c) The number of Additional Shares, if any, by which the Conversion Rate shall be increased
shall be determined by reference to the table below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (the “
Effective Date
”) and the price (the “
Stock Price
”) paid (or deemed
to be paid) per share of the Common Stock in the Make-Whole Fundamental Change. If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition
of Fundamental Change, 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 over the five Trading Day period ending on, and including, the
Trading Day immediately preceding the Effective Date of the Make-Whole Fundamental Change. The Board of Directors shall make appropriate adjustments to the Stock Price, in its good faith determination, to account for any adjustment to the Conversion
Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective Date (as such term is used in Section 14.04) or Expiration Date of the event occurs during such five consecutive Trading
Day period.
(d) The Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the
Conversion Rate of the Notes is otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment,
multiplied by
a fraction, the numerator of which is the Conversion Rate immediately
prior to such adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares set forth in the table below shall be adjusted in the same manner and at the same
time as the Conversion Rate as set forth in Section 14.04.
(e) The following table sets forth the number of Additional Shares of Common
Stock by which the Conversion Rate shall be increased per $1,000 principal amount of Notes pursuant to this Section 14.03 for each Stock Price and Effective Date set forth below:
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Stock Price
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Effective Date
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$52.44
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$55.00
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$65.00
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$73.42
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$100.00
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$150.00
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$200.00
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$300.00
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$400.00
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November 14, 2017
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5.4484
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5.1636
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3.8732
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3.1167
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1.7378
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0.7383
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0.3667
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0.1049
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0.0243
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November 15, 2018
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5.4484
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5.1504
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3.8164
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3.0408
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1.6474
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0.6689
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0.3195
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0.0840
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0.0157
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November 15, 2019
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5.4484
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5.1281
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3.7411
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2.9428
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1.5352
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0.5869
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0.2662
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0.0623
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0.0077
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November 15, 2020
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5.4484
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5.0855
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3.6330
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2.8080
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1.3895
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0.4880
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0.2060
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0.0407
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0.0014
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November 15, 2021
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5.4484
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5.0280
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3.4864
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2.6265
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1.2005
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0.3709
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0.1409
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0.0211
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0.0000
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November 15, 2022
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5.4484
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4.8911
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3.2314
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2.3309
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0.9263
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0.2288
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0.0739
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0.0061
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0.0000
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November 15, 2023
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5.4484
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4.6615
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2.7912
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1.8278
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0.5179
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0.0796
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0.0223
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0.0005
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0.0000
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November 15, 2024
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5.4484
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4.5764
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1.7090
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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The exact Stock Price and Effective Date may not be set forth in the table above, in which case:
(i) if the Stock Price is between two Stock Prices in the table above or the Effective Date is between two Effective Dates in
the table, the number of Additional Shares by which the Conversion Rate shall be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the earlier
and later Effective Dates, as applicable, based on a 365-day year;
65
(ii) if the Stock Price is greater than $400.000 per share (subject to adjustment
in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate; and
(iii) if the Stock Price is less than $52.44 per share (subject to adjustment in the same manner as the Stock Prices set forth
in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate.
Notwithstanding the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of Notes exceed 19.0694 shares of Common
Stock, subject to adjustment in the same manner as the Conversion Rate pursuant to Section 14.04.
(f) Nothing in this Section 14.03 shall
prevent an adjustment to the Conversion Rate pursuant to Section 14.04 in respect of a Make-Whole Fundamental Change.
Section 14.04
. Adjustment of Conversion Rate
.
The Conversion Rate shall be adjusted from time to time by the Company if any
of the following events occurs, except that the Company shall not make any adjustments to the Conversion Rate if Holders of the Notes 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 the Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 14.04, without having to convert their Notes, 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 Notes held by such Holder.
(a) If the Company exclusively issues shares of Common Stock as a dividend or distribution on shares of the Common Stock, or if the Company
effects a share split or share combination, the Conversion Rate shall be adjusted based on the following formula:
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' = the Conversion Rate in effect immediately after the open of
business on such Ex-Dividend Date or Effective Date;
66
OS
0
= the number of shares of Common
Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date before giving effect to such dividend, distribution, share split or share combination; and
OS' = the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or
share combination.
Any adjustment made under this Section 14.04(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 14.04(a) is declared
but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend
or distribution had not been declared.
(b) If the Company issues to all or substantially all holders of the Common Stock any rights,
options or warrants (other than pursuant to a stockholder rights plan) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, 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 shall be increased based on the following formula:
where,
CR
0
= the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance;
CR' = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
OS
0
= the number of shares of Common Stock outstanding immediately prior to the open
of business on such Ex-Dividend Date;
X = the total number of shares of Common Stock issuable pursuant to such rights, options or
warrants; and
Y = the number of shares of 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.
67
Any increase made under this Section 14.04(b) shall 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 such rights, options or warrants are not exercised prior to their expiration or shares of the 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 or if no such right, option or warrant is exercised prior to its expiration, 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 purposes of this Section 14.04(b) and for the purpose of Section 14.01(b)(ii)(A), 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 for 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.
(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 its 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 or will be so effected in
accordance with the 1% provision (as defined below) pursuant to Section 14.04(a) or Section 14.04(b), (ii) except as otherwise described in Section 14.11, rights issued pursuant to any stockholder rights plan of the Company then in effect,
(iii) dividends or distributions paid exclusively in cash as to which the provisions set forth in Section 14.04(d) shall apply, (iv) any dividends or distributions of Reference Property in exchange for or upon conversion of the Common
Stock in connection with any Share Exchange Event, and (v) Spin-Offs as to which the provisions set forth below in this Section 14.04(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or
rights, options or warrants to acquire Capital Stock or other securities, the “
Distributed Property
”), then the Conversion Rate shall be increased based on the following formula:
where,
CR
0
= the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;
68
CR' = 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 Distributed Property with respect to each outstanding share of
the Common Stock on the Ex-Dividend Date for such distribution.
Any increase made under the portion of this Section 14.04(c) above shall
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 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 a Note 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 receive the Distributed Property, the amount and kind of Distributed Property
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. If the Board of Directors determines the “FMV” (as defined above)
of any distribution for purposes of this Section 14.04(c) by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing 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.
With respect to an adjustment pursuant to this Section 14.04(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 of the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national
securities exchange (a “
Spin-Off
”), the Conversion Rate shall be increased based on the following formula:
where,
CR
0
= the Conversion Rate in effect immediately prior to the end of the Valuation Period;
CR' = the Conversion Rate in effect immediately after the end of the Valuation Period;
69
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 14.01(b)(iv) 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
”); 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 shall occur
at the close of business on the last Trading Day of the Valuation Period;
provided
that (x) in respect of any conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the Valuation
Period, references to “10” in the preceding paragraph shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the Conversion Date in determining the
Conversion Rate and (y) in respect of any conversion of Notes for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation
Period, references to “10” in the preceding paragraph shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and such Trading Day in determining the Conversion
Rate as of such Trading Day. If the Ex-Dividend Date of the Spin-Off is after the 10th Trading Day immediately preceding, and including, the end of any Observation Period in respect of a conversion of Notes, references to “10” or
“10th” in the preceding paragraph and this paragraph shall be deemed to be replaced, solely in respect of that conversion of Notes, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for the
Spin-Off to, and including, the last Trading Day of such Observation Period. If any dividend or distribution that constitutes a Spin-Off is declared but not so paid or made, the Conversion Rate shall be immediately decreased, effective as of the
date the Board of Directors determines not to pay or make such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared or announced.
For purposes of this Section 14.04(c) (and subject in all respect to Section 14.11), rights, options or warrants distributed by the Company to
all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence
of a specified event or events (“
Trigger Event
”): (i) are deemed to be transferred with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common
Stock, shall be deemed not to have been distributed for purposes of this Section 14.04(c) (and no adjustment to the Conversion Rate under this Section 14.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such
rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 14.04(c). If any such right, option or warrant, including any such
existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different
70
securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect
to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any
distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution
amount for which an adjustment to the Conversion Rate under this Section 14.04(c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon
such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed
distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming
such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated
without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.
For purposes of Section 14.04(a), Section 14.04(b) and this Section 14.04(c), if any dividend or distribution to which this Section 14.04(c)
is applicable also includes one or both of:
(A) a dividend or distribution of shares of Common Stock to which Section 14.04(a) is
applicable (the “
Clause A Distribution
”); or
(B) a dividend or distribution of rights, options or warrants to which
Section 14.04(b) is applicable (the “
Clause B Distribution
”),
then, in either case, (1) such dividend or
distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 14.04(c) is applicable (the “
Clause C Distribution
”) and any Conversion Rate
adjustment required by this Section 14.04(c) with respect to such Clause C Distribution shall then be made, and (2) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any
Conversion Rate adjustment required by Section 14.04(a) and Section 14.04(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B
Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately
prior to the open of business on such Ex-Dividend Date or Effective Date” within the meaning of Section 14.04(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section
14.04(b).
71
(d) If any cash dividend or distribution is made to all or substantially all holders of the
Common Stock, the Conversion Rate shall be adjusted based on the following formula:
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' = 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 to the Conversion Rate pursuant to this Section 14.04(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 a Note shall receive, for each $1,000 principal amount of Notes, 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 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 the 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 exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula:
where,
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 (the date such tender offer or exchange offer expires, the “
Expiration Date
”);
72
CR' = 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 Expiration Date;
AC = the aggregate value of all
cash and any other consideration (as determined by the Board of Directors) paid or payable for shares of Common Stock purchased in such tender or exchange offer;
OS
0
= the number of shares of Common Stock outstanding immediately prior to the
Expiration Date (prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);
OS' = the number of shares of Common Stock outstanding immediately after the Expiration Date (after giving effect to the purchase of all
shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and
SP' = the average of the Last
Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date.
The increase to the Conversion Rate under this Section 14.04(e) shall 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 (x) in respect of any conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion
Date occurs during 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 the Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Notes for
which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant 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 Trading Day immediately
preceding, and including, the end of any Observation Period in respect of a conversion of Notes, references to “10” or “10th” in the preceding paragraph and this paragraph shall be deemed to be replaced, solely in respect of that
conversion of Notes, 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 Trading Day of such Observation Period.
In the event that the Company or one of its Subsidiaries is obligated to purchase shares of Common Stock pursuant to any such tender offer or
exchange offer, but the Company is, or such Subsidiary is, permanently prevented by applicable law from effecting any such purchases, or all such purchases are rescinded, then the Conversion Rate shall again be adjusted to be the Conversion Rate
that would then be in effect if such tender offer or exchange offer had not been made or had been made only in respect of the purchases that have been effected.
73
(f) Notwithstanding this Section 14.04 or any other provision of this Indenture or the Notes, if
a Conversion Rate adjustment becomes effective on any Ex-Dividend Date, and a Holder that has converted its Notes on or after such Ex-Dividend Date and on or prior to the related Record Date would be treated as the record holder of the shares of
Common Stock as of the related Conversion Date as described under Section 14.02(i) based on an adjusted Conversion Rate for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment provisions in this Section 14.04, the Conversion
Rate adjustment relating to such Ex-Dividend Date shall not be made for such converting Holder. Instead, such Holder shall be treated as if such Holder were the record owner of the shares of Common Stock on an unadjusted basis and participate in the
related dividend, distribution or other event giving rise to such adjustment.
(g) If an adjustment to the Conversion Rate otherwise
required by this Section 14.04 would result in a change of less than 1% to the Conversion Rate, then, notwithstanding the foregoing, the Company may, at its election, defer and carry forward such adjustment, except that all such deferred adjustments
must be given effect immediately upon the earliest to occur of the following:
(i) when all such deferred adjustments would
result in an aggregate change of at least 1% to the Conversion Rate;
(ii) the Conversion Date of (if Physical Settlement
applies to such conversion), or each Trading Day of the applicable Observation Period for (if Cash Settlement or Combination Settlement applies to such conversion), any Note;
(iii) the date a Fundamental Change or Make-Whole Fundamental Change occurs; and
(iv) May 15, 2024.
The provisions described in this Section 14.04(g) are referred to herein as the “
1% provision
.”
(h) In addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this Section 14.04, and to the extent permitted by
applicable law and subject to the applicable rules of The NASDAQ Global Select Market, the Company from time to time may increase the Conversion Rate of the Notes by any amount for a period of at least 20 Business Days if the Board of Directors
determines that such increase would be in the Company’s best interest. In addition, to the extent permitted by applicable law and subject to the applicable rules of The NASDAQ Global Select Market, the Company may (but is not required to)
increase the Conversion Rate to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares of Common Stock (or rights to acquire shares of Common Stock) or
similar event. Whenever the Conversion Rate is increased pursuant to either of the preceding two sentences, the Company shall deliver to the Holder of each Note a notice of the increase at least 15 days prior to the date the increased Conversion
Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
74
(i) Notwithstanding this Section 14.04, the Conversion Rate shall not be adjusted:
(i) upon 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;
(ii) upon 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 the Company’s Subsidiaries;
(iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or
convertible security not described in clause (ii) of this subsection and outstanding as of the date the Notes were first issued;
(iv) solely for a change in the par value of the Common Stock;
(v) upon the repurchase of any shares of Common Stock pursuant to an open market share repurchase program or other buy-back
transaction, including structured or derivative transactions, that is not a tender offer or exchange offer of the kind described in Section 14.04(e); or
(vi) for accrued and unpaid interest, if any.
(j) All calculations and other determinations under this Article 14 shall be made by the Company and shall be made to the nearest one-ten
thousandth (1/10,000th) of a share.
(k) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file
with the Trustee (and the Conversion Agent if not the Trustee) an Officer’s 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
Responsible Officer of the Trustee shall have received such Officer’s Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume without inquiry that the last Conversion Rate of which
it has 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 deliver such notice of such adjustment of the Conversion Rate to each Holder. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(l) For purposes of this Section 14.04, the number of shares of Common Stock at any time outstanding shall not include shares of Common Stock
held in the treasury of the Company so long as the Company does not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company, but shall include shares of Common Stock issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock.
75
Section 14.05
. Adjustments of Prices
.
Whenever any provision of this Indenture
requires the Company to calculate the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts over a span of multiple days (including, without limitation, an Observation Period and the period for
determining the Stock Price for purposes of a Make-Whole Fundamental Change), the Board of Directors shall make appropriate adjustments to each to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an
adjustment to the Conversion Rate where the Ex-Dividend Date, Effective Date or Expiration Date of the event occurs, at any time during the period when the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or the Daily
Settlement Amounts are to be calculated.
Section 14.06
. Shares to Be Fully Paid
.
The Company shall reserve, free from
preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock to provide for conversion of the Notes from time to time as such Notes are presented for conversion (assuming delivery of the
maximum number of Additional Shares pursuant to Section 14.03 and that at the time of computation of such number of shares, all such Notes would be converted by a single Holder and that Physical Settlement were applicable).
Section 14.07
. Effect of Recapitalizations, Reclassifications and Changes of the Common Stock
.
(a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or
combination),
(ii) any consolidation, merger, combination or similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s
Subsidiaries, substantially as an entirety, or
(iv) any statutory share exchange,
in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including
cash or any combination thereof) (any such event, a “
Share Exchange Event
”), then at and after the effective time of such Share Exchange Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right
to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the
Conversion Rate immediately prior to such Share Exchange Event would have owned or been entitled to receive (the “
Reference Property
,” with each “
unit of Reference Property
” meaning the kind and amount of Reference
Property that a holder of one share of Common Stock is entitled to receive) upon such Share
76
Exchange Event and, prior to or at the effective time of such Share Exchange Event, the Company or the successor or acquiring Person, as the case may be, shall execute with the Trustee a
supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes;
provided
,
however
, that at and after the effective time of the Share Exchange Event
(A) the Company or the successor or acquiring company, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section
14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon
conversion of the Notes in accordance with Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have been entitled to receive in such Share Exchange
Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property.
If the Share Exchange Event causes
the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will
be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively
make such an election, the types and amounts of consideration actually received by the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration
referred to in clause (i) attributable to one share of Common Stock. If the holders of the Common Stock receive only cash in such Share Exchange Event, then for all conversions for which the relevant Conversion Date occurs after the effective
date of such Share Exchange Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any
Additional Shares pursuant to Section 14.03),
multiplied by
the price paid per share of Common Stock in such Share Exchange Event and (B) the Company shall satisfy the Conversion Obligation by paying such cash amount to converting
Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such
determination is made.
If the Reference Property in respect of any Share Exchange Event includes, in whole or in part, shares of common
equity, such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14
with respect to the portion of the Reference Property consisting of such common equity. If, in the case of any Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets of a Person other than the
successor or purchasing company, as the case may be, in such Share Exchange Event, then such supplemental indenture shall also be executed by such other Person, and shall contain such additional provisions to protect the interests of the Holders of
the Notes as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
77
(b) When the Company executes a supplemental indenture pursuant to subsection (a) of this Section
14.07, the Company shall promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such
Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly deliver notice thereof to all Holders. The Company shall cause notice of the execution of such
supplemental indenture to be delivered to each Holder within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 14.07. None of the
foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02 prior to the
effective date of such Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Share Exchange
Events.
Section 14.08
. Certain Covenants
.
(a) Subject to Sections 14.02(d) and 14.02(e), the Company covenants that all shares of Common Stock issued upon conversion of Notes will be
fully paid and non-assessable by the Company and free from all taxes, liens and charges with respect to the issue thereof.
(b) The Company
covenants that, if any shares of Common Stock to be provided for the purpose of conversion of Notes hereunder require registration with or approval of any governmental authority under any federal or state law before such shares of Common Stock may
be validly issued upon conversion, the Company will, to the extent then permitted by the rules and interpretations of the Commission, secure such registration or approval, as the case may be.
(c) The Company further covenants that if at any time the Common Stock shall be listed on any national securities exchange or automated
quotation system the Company will list and use its commercially reasonable efforts to keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, any Common Stock issuable upon conversion of the Notes.
Section 14.09
. Responsibility of Trustee
.
The Trustee and any other Conversion Agent shall not at any time be under
any duty or responsibility to any Holder to determine the Conversion Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment (including any increase) of the Conversion Rate, or with respect to the nature or extent
or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent 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 securities, property or cash that may at any time be issued or delivered upon the conversion of any Note; and the Trustee and any other Conversion
Agent make no representations with respect thereto. Neither
78
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 Note for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article. 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 14.07 relating either to the kind or amount of shares of stock
or securities or property (including cash) receivable by Holders upon the conversion of their Notes after any event referred to in such Section 14.07 or to any adjustment to be made with respect thereto, but, subject to the provisions of Section
7.01, may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officer’s Certificate (which the Company shall be obligated to file with the
Trustee prior to the execution of any such supplemental indenture) with respect thereto. Neither the Trustee nor the Conversion Agent shall be responsible for determining whether any event contemplated by Section 14.01(b) has occurred that makes the
Notes eligible for conversion or no longer eligible therefor. The Trustee and the Conversion Agent may conclusively rely upon any notice with respect to the commencement or termination of such conversion rights, and the Company agrees to deliver
such notices to the Trustee and the Conversion Agent immediately after the occurrence of any such event or at such other times as shall be provided for in Section 14.01(b).
Section 14.10
. Notice to Holders Prior to Certain Actions
.
In case of any:
(a) action by the Company or one of its Subsidiaries that would require an adjustment in the Conversion Rate pursuant to Section 14.04 or
Section 14.11;
(b) Share Exchange Event; or
(c) voluntary or involuntary dissolution, liquidation or winding-up of the Company;
then, in each case (unless notice of such event is otherwise required pursuant to another provision of this Indenture) and to the extent applicable, the
Company shall cause to be filed with the Trustee and the Conversion Agent (if other than the Trustee) and to be delivered to each Holder, a notice stating the date on which a record is to be taken for the purpose of such action by the Company or one
of its Subsidiaries or, if a record is not to be taken, the date as of which the holders of Common Stock of record are to be determined for the purposes of such action by the Company or one of its Subsidiaries no later than the earlier of the date
notice of such date is required to be provided under Rule 10b-17 of the Exchange Act, other applicable Commission rule or applicable rules of the principal U.S. national or regional securities exchange on which the Common Stock is then listed or
admitted for trading and such date is publicly announced by the Company. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such action by the Company or one of its Subsidiaries, Share Exchange Event,
dissolution, liquidation or winding-up.
79
Section 14.11.
Stockholder Rights Plans
.
If the Company has a stockholder
rights plan in effect upon conversion of the Notes, each share of Common Stock, if any, issued upon such conversion shall be entitled to receive the appropriate number of rights, if any, under such stockholder rights plan and the certificates
representing the Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any such stockholder rights plan, as the same may be amended from time to time. However, if, prior to any
conversion of Notes, the rights have separated from the shares of Common Stock in accordance with the provisions of the applicable stockholder rights plan, the Conversion Rate shall be adjusted at the time of separation as if the Company distributed
to all or substantially all holders of the Common Stock Distributed Property as provided in Section 14.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights.
Section 14.12
. Exchange in Lieu of Conversion
.
When a Holder surrenders its Notes for conversion, the Company may, at its
election (a “
Conversion Exchange Election
”), direct the Conversion Agent to surrender, on or prior to the close of business on the Trading Day following the Conversion Date, such Notes to a financial institution designated by the
Company for exchange in lieu of conversion. In order to accept any Notes surrendered for conversion, the designated financial institution must agree to timely deliver, in exchange for such Notes, the cash, shares of Common Stock or combination
thereof due upon conversion as described in Section 14.02. If the Company makes a Conversion Exchange Election, the Company shall, by the close of business on the Trading Day following the relevant Conversion Date, notify the Holder surrendering its
Notes for conversion that it has made the Conversion Exchange Election, and the Company shall notify the designated financial institution of the Settlement Method it has elected with respect to such conversion and the relevant deadline for payment
and/or delivery of cash, shares of Common Stock or a combination thereof due upon conversion.
Any Notes exchanged by the designated
financial institution shall remain outstanding. If the designated financial institution accepts any such Notes, it shall deliver, in exchange for such Notes, the cash, shares of Common Stock or a combination thereof, as the case may be, due upon
conversion directly to the Holder of such Notes on the date the Company would have otherwise been required to deliver such consideration. If the designated financial institution agrees to accept any Notes for exchange but does not timely pay and/or
deliver the required cash, shares of Common Stock or a combination thereof due upon conversion, or if such designated financial institution does not accept the Notes for exchange, the Company shall pay and/or deliver the required cash, shares of
Common Stock or a combination thereof due upon conversion to the converting Holder at the time and in the manner required under this Indenture as if the Company had not made a Conversion Exchange Election.
The Company’s designation of a financial institution to which the Notes may be submitted for exchange does not require that financial
institution to accept any Notes (unless the financial institution has separately made an agreement with the Company to do so). The Company may, but shall not be obligated to, enter into a separate agreement with any designated financial institution
that would compensate it for any such transaction.
80
ARTICLE 15
R
EPURCHASE
OF
N
OTES
AT
O
PTION
OF
H
OLDERS
Section 15.01
. [Intentionally Omitted].
Section 15.02
. Repurchase at Option of Holders Upon a Fundamental Change
.
(a) If a Fundamental Change occurs at any time, each Holder shall have the right, at such Holder’s option, to require the Company to
repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple thereof, on the date (the “
Fundamental Change Repurchase Date
”) specified by the
Company that is not less than 10 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof,
plus
accrued and unpaid interest
thereon to, but excluding, the Fundamental Change Repurchase Date (the “
Fundamental Change Repurchase Price
”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment
Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be
equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15.
(b) Repurchases of Notes under this Section
15.02 shall be made, at the option of the Holder thereof, upon:
(i) delivery to the Paying Agent by a Holder of a duly
completed notice (the “
Fundamental Change Repurchase Notice
”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Applicable Procedures
for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Fundamental
Change Repurchase Notice (together with all necessary endorsements for transfer) at the office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case
such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor.
The Fundamental Change
Repurchase Notice in respect of any Notes to be repurchased shall state:
(i) in the case of Physical Notes, the
certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be
repurchased, which must be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the
Company pursuant to the applicable provisions of the Notes and this Indenture;
provided
,
however
, that if the Notes are Global Notes, the
Fundamental Change Repurchase Notice must comply with the Applicable Procedures.
81
Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately
preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 15.03.
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.
(c) On or before the 20th day after the occurrence of the effective date of a Fundamental Change, the Company shall
provide to all Holders of Notes, the Trustee, and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “
Fundamental Change Company Notice
”) of the occurrence of the effective date of the Fundamental
Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with
the Applicable Procedures of the Depositary. Each Fundamental Change Company Notice shall specify:
(i) the events causing
the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be
converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their Notes.
No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the
validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02.
82
At the Company’s request, the Paying Agent shall give such notice in the Company’s name
and at the Company’s expense;
provided
,
however
, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders in connection with a
Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the
Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration
resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the Applicable Procedures shall be deemed to
have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e) Notwithstanding anything to the contrary in this Indenture, the Company shall not be required to repurchase, or to make an offer to
repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15, and such
third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth in this Article 15.
(f) For purposes of this Article 15, the Paying Agent may be any agent, depositary, tender agent, paying agent or other agent appointed by
the Company to accomplish the purposes set forth herein.
Section 15.03
. Withdrawal of Fundamental Change Repurchase
Notice
.
(a) A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the office of the Paying Agent in accordance with this Section 15.03 at any time prior
to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:
(i)
the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, which must be $1,000 or an integral multiple thereof,
(ii) if Physical Notes have been issued, the certificate number of the Note in respect of which such notice of withdrawal is
being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Fundamental
Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple thereof;
provided
,
however
, that if
the Notes are Global Notes, the notice must comply with appropriate procedures of the Depositary.
83
Section 15.04.
Deposit of Fundamental Change Repurchase Price
.
(a) The Company will deposit with the Paying Agent, or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust
as provided in Section 4.04) on or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date an amount of money sufficient to repurchase all of the Notes to be repurchased at the appropriate Fundamental Change Repurchase
Price. Subject to receipt of funds and/or Notes by the Paying Agent, payment for Notes surrendered for repurchase (and not withdrawn prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date)
will be made on the later of (i) the Fundamental Change Repurchase Date (
provided
the Holder has satisfied the conditions in Section 15.02) and (ii) the time of book-entry transfer or the delivery of such Note to the Paying Agent by
the Holder thereof in the manner required by Section 15.02 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register;
provided
,
however
, that payments to the
Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Paying Agent shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in
excess of the Fundamental Change Repurchase Price.
(b) If by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the
Paying Agent holds money sufficient to make payment on all the Notes or portions thereof that are to be repurchased on such Fundamental Change Repurchase Date, then, with respect to the Notes that have been properly surrendered for repurchase and
have not been validly withdrawn, (i) such Notes will cease to be outstanding, (ii) interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Paying
Agent) and (iii) all other rights of the Holders of such Notes will terminate (other than the right to receive the Fundamental Change Repurchase Price.
(c) Upon surrender of a Physical Note that is to be repurchased in part pursuant to Section 15.02, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder a new Note in an authorized denomination equal in principal amount to the unrepurchased portion of the Note surrendered.
Section 15.05.
Covenant to Comply with Applicable Laws Upon Repurchase of Notes
. In connection with any repurchase offer, the
Company will, if required:
(a) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange
Act that may then be applicable;
(b) file a Schedule TO or any other required schedule under the Exchange Act; and
(c) otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes;
84
in each case, so as to permit the rights and obligations under this Article 15 to be exercised in
the time and in the manner specified in this Article 15. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture relating to the Company’s obligations to repurchase the Notes upon a
Fundamental Change, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions of this Indenture by virtue of such conflict.
Section 15.06.
Exchange in Lieu of Repurchase
.
Notwithstanding any other provision of this Article 15, when a Holder surrenders Notes for repurchase upon a Fundamental Change, the Company
may, at its election (a “
Repurchase Exchange Election
”), direct the Paying Agent to surrender, on or prior to the second Business Day following the Fundamental Change Repurchase Date, such Notes to a financial institution designated
by the Company for exchange in lieu of repurchase. In order to accept any Notes surrendered for repurchase, the designated financial institution must agree to pay, in exchange for such Notes, the Fundamental Change Repurchase Price on the
Fundamental Change Repurchase Date as set forth under Section 15.02 through Section 15.05 above. By the close of business on the Business Day prior to the Fundamental Change Repurchase Date, the Company shall notify the Holder surrendering
Notes for repurchase that it has made the Repurchase Exchange Election.
Any Notes exchanged by the designated financial institution will
remain outstanding. If the designated financial institution accepts any such Notes, it shall pay the Fundamental Change Repurchase Price due upon repurchase of such Notes directly to the Holder of such Notes on the date the Company would have
otherwise been required to deliver such consideration. If the designated financial institution agrees to accept any Notes for exchange but does not timely pay the related Fundamental Change Repurchase Price, or if such designated financial
institution does not accept the Notes for exchange, the Company shall repurchase the Notes and pay the Fundamental Change Repurchase Price at the time and in the manner required under Section 15.02 through Section 15.05 above as if the
Company had not made Repurchase Exchange Election.
The Company’s designation of a financial institution to which the Notes may be
submitted for exchange does not require the financial institution to accept any Notes (unless the financial institution has separately made an agreement with the Company to do so). The Company may, but is not obligated to, enter into a separate
agreement with any designated financial institution that would compensate it for any such transaction.
ARTICLE 16
N
O
R
EDEMPTION
Section 16.01.
No Redemption
. The Notes shall not be redeemable by the Company prior to the Maturity Date, and no sinking fund is
provided for the Notes.
85
ARTICLE 17
M
ISCELLANEOUS
P
ROVISIONS
Section 17.01
. Provisions Binding on Company’s Successors
.
All the covenants, stipulations, promises and agreements of
the Company contained in this Indenture shall bind its successors and assigns whether so expressed or not.
Section 17.02
.
Official Acts by Successor Company
.
Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or Officer of the Company shall and may be done and performed with like
force and effect by the like board, committee or officer of any company or other entity that shall at the time be the lawful sole successor of the Company.
Section 17.03
. Addresses for Notices, Etc.
Any notice or demand that by any provision of this Indenture is required or permitted to
be given or served by the Trustee or by the Holders on the Company shall be deemed to have been sufficiently given or made, for all purposes if given or served by being deposited postage prepaid by registered or certified mail in a post office
letter box addressed (until another address is filed by the Company with the Trustee) to Sarepta Therapeutics, Inc., 215 First Street, Suite 415, Cambridge, Massachusetts 02142, Attention: General Counsel, with a copy sent to Ropes & Gray
LLP, 800 Boylston Street, Boston, MA 02199, Attention: Paul Kinsella & Thomas Holden. Any notice, direction, request or demand hereunder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if
given or served by being deposited postage prepaid by registered or certified mail in a post office letter box addressed to the Corporate Trust Office.
The Trustee, by notice to the Company, may designate additional or different addresses for subsequent notices or communications.
Any notice or communication delivered or to be delivered to a Holder of Physical Notes shall be mailed to it by first class mail, postage
prepaid, at its address as it appears on the Note Register and shall be sufficiently given to it if so mailed within the time prescribed. Any notice or communication delivered or to be delivered to a Holder of Global Notes shall be delivered in
accordance with the Applicable Procedures of the Depositary and shall be sufficiently given to it if so delivered within the time prescribed.
Failure to mail or deliver a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other
Holders. If a notice or communication is mailed or delivered, as the case may be, in the manner provided above, it is duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
86
Section 17.04
. Governing Law; Jurisdiction
.
THIS INDENTURE AND EACH NOTE, AND
ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH NOTE, 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).
The Company irrevocably consents and agrees, for the benefit of the Holders from time to time of the Notes and the Trustee, that any legal
action, suit or proceeding against it with respect to obligations, liabilities or any other matter arising out of or in connection with this Indenture or the Notes may be brought in the courts of the State of New York or the courts of the United
States located in the Borough of Manhattan, New York City, New York and, until amounts due and to become due in respect of the Notes have been paid, hereby irrevocably consents and submits to the non-exclusive jurisdiction of each such court
in
personam
, generally and unconditionally with respect to any action, suit or proceeding for itself in respect of its properties, assets and revenues.
The Company irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter have
to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Indenture brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan,
New York City, New York and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
Section 17.05
. Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee
.
Upon any
application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall, if requested by the Trustee, furnish to the Trustee an Officer’s Certificate and/or an Opinion of Counsel,
in form and substance reasonably satisfactory to the Trustee, stating that such action is permitted by the terms of this Indenture and that all conditions precedent to such action have been complied with.
Each Officer’s Certificate and Opinion of Counsel provided for, by or on behalf of the Company in this Indenture and delivered to the
Trustee with respect to compliance with this Indenture (other than the Officer’s Certificates provided for in Section 4.08) shall include (a) a statement that the person signing such certificate is familiar with the requested action and
this Indenture; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statement contained in such certificate is based; (c) a statement that, in the judgment of such person, he or she has made
such examination or investigation as is necessary to enable him or her to express an informed judgment as to whether or not such action is permitted by this Indenture; and (d) a statement as to whether or not, in the judgment of such person,
such action is permitted by this Indenture and that all conditions precedent to such action have been complied with.
Section 17.06
. Legal Holidays
.
In any case where any Interest Payment Date, any Fundamental Change Repurchase Date or the
Maturity Date is not a Business Day, then any action to be taken on such date need not be taken on such date, but may be taken on the next succeeding Business Day with the same force and effect as if taken on such date, and no interest shall accrue
in respect of the delay.
87
Section 17.07
. No Security Interest Created
.
Nothing in this Indenture or in
the Notes, expressed or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.
Section 17.08
. Benefits of Indenture
.
Nothing in this Indenture or in the Notes, expressed or implied, shall give to any
Person, other than the Holders, the parties hereto, any Paying Agent, any Conversion Agent, any Bid Solicitation Agent, any Custodian, any authenticating agent, any Note Registrar and their successors hereunder, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 17.09
. Table of Contents, Headings, Etc.
The table of contents and the
titles and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 17.10
. Authenticating Agent
.
The Trustee may appoint an authenticating agent that shall be authorized to act on its
behalf and subject to its direction in the authentication and delivery of Notes in connection with the original issuance thereof and transfers and exchanges of Notes hereunder, including under Section 2.04, Section 2.05, Section 2.06, Section 2.07,
Section 10.04 and Section 15.04 as fully to all intents and purposes as though the authenticating agent had been expressly authorized by this Indenture and those Sections to authenticate and deliver Notes. For all purposes of this Indenture, the
authentication and delivery of Notes by the authenticating agent shall be deemed to be authentication and delivery of such Notes “by the Trustee” and a certificate of authentication executed on behalf of the Trustee by an authenticating
agent shall be deemed to satisfy any requirement hereunder or in the Notes for the Trustee’s certificate of authentication. Such authenticating agent shall at all times be a Person eligible to serve as trustee hereunder pursuant to Section
7.08.
Any corporation or other entity into which any authenticating agent may be merged or converted or with which it may be
consolidated, or any corporation or other entity resulting from any merger, consolidation or conversion to which any authenticating agent shall be a party, or any corporation or other entity succeeding to the corporate trust business of any
authenticating agent, shall be the successor of the authenticating agent hereunder, if such successor corporation or other entity is otherwise eligible under this Section 17.10, without the execution or filing of any paper or any further act on the
part of the parties hereto or the authenticating agent or such successor corporation or other entity.
Any authenticating agent may at any
time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating agent by giving written notice of termination to such authenticating agent and to the
Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any authenticating agent shall cease to be eligible under this Section, the Trustee may appoint a successor authenticating agent (which may be
the Trustee), shall give written notice of such appointment to the Company and shall deliver notice of such appointment to all Holders.
88
The Company agrees to pay to the authenticating agent from time to time reasonable compensation
for its services although the Company may terminate the authenticating agent, if it determines such agent’s fees to be unreasonable.
The provisions of Section 7.02, Section 7.03, Section 7.04, Section 8.03 and this Section 17.10 shall be applicable to any authenticating
agent.
If an authenticating agent is appointed pursuant to this Section 17.10, the Notes may have endorsed thereon, in addition to the
Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
,
as Authenticating
Agent, certifies that this is one of the Notes described
in the within-named Indenture.
By:
Authorized Officer
Section 17.11
.
Execution in Counterparts
.
This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this
Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the
parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 17.12
.
Severability
.
In the event any provision of this Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality or enforceability of the remaining provisions shall not in
any way be affected or impaired.
Section 17.13
. Waiver of Jury Trial
.
EACH OF THE COMPANY AND THE TRUSTEE 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 INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 17.14
. Force Majeure
.
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts that are consistent
with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
89
Section 17.15
. Calculations
. Except as otherwise provided in this Indenture, the
Company shall be responsible for making all calculations called for under the Notes. These calculations include, but are not limited to, determinations of the Stock Price, the Last Reported Sale Prices of the Common Stock, the Daily VWAPs, the Daily
Conversion Values, the Daily Settlement Amounts, accrued interest payable on the Notes and the Conversion Rate of the Notes. The Company shall make all these calculations in good faith and, absent manifest error, the Company’s calculations
shall be final and binding on Holders of Notes. The Company shall provide a schedule of its calculations to each of the Trustee and the Conversion Agent, and each of the Trustee and Conversion Agent is entitled to rely conclusively upon the accuracy
of the Company’s calculations without independent verification. The Trustee will forward the Company’s calculations to any Holder of Notes upon the written request of that Holder at the sole cost and expense of the Company.
Section 17.16.
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 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.
Section 17.17.
Tax Withholding
.
Subject in all respects to Section 4.10, the Company or the Trustee, as the case may
be, shall be entitled to make a deduction or withholding from any payment which it makes under this Indenture for or on account of any present or future taxes, duties or charges if and to the extent so required by any applicable law and any current
or future regulations or agreements thereunder or official interpretations thereof or any law implementing an intergovernmental approach thereto or by virtue of the relevant Holder failing to satisfy any certification or other requirements in
respect of the Notes, in which event the Company or the Trustee, as the case may be, shall make such payment after such withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted and
shall have no obligation to gross up any payment hereunder or pay any additional amount as a result of such withholding tax.
[Remainder of
page intentionally left blank]
90
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the
date first written above.
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SAREPTA THERAPEUTICS, INC.
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By
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/s/ Sandesh Mahatme
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Name:
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Sandesh Mahatme
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Title:
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Executive Vice President, Chief Financial Officer and Chief Business Officer
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[Signature Page to Indenture]
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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By:
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/s/ Karen Beard
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Name: Karen Beard
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Title: Vice President
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[Signature Page to Indenture]
EXHIBIT A
[FORM OF FACE OF NOTE]
[INCLUDE
FOLLOWING LEGEND IF A GLOBAL NOTE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY,
A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREUNDER 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.]
[INCLUDE 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 SAREPTA THERAPEUTICS, 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 AND IS EFFECTIVE AT THE TIME OF
SUCH TRANSFER, OR
A-1
(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 CLAUSE (2)(D) ABOVE,
THE COMPANY AND THE NOTE REGISTRAR 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 AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF SAREPTA THERAPEUTICS, INC. OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED
IN RULE 144 UNDER THE SECURITIES ACT) OF SAREPTA THERAPEUTICS, INC. DURING THE IMMEDIATELY PRECEDING THREE MONTHS MAY PURCHASE, OTHERWISE ACQUIRE OR HOLD THIS SECURITY OR A BENEFICIAL INTEREST HEREIN.]
A-2
Sarepta Therapeutics, Inc.
1.50% Convertible Senior Note due 2024
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No. [
]
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[Initially]
1
$[
]
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CUSIP No. [
]
Sarepta Therapeutics, Inc., a corporation duly organized and validly existing under the laws of the State of Delaware (the
“
Company
,” which term includes any successor corporation or other entity under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to [CEDE & CO.]
2
[ ]
3
, or registered assigns, the principal sum [as set forth in the
“Schedule of Exchanges of Notes” attached hereto]
4
[of $[ ]]
5
,
which amount, taken together with the principal amounts of all other outstanding Notes, shall not, unless permitted by the Indenture, exceed $570,000,000, in accordance with the rules and procedures of the Depositary, on November 15, 2024, and
interest thereon as set forth below.
This Note shall bear interest at the rate of 1.50% per year from November 14, 2017, or
from the most recent date to which interest had been paid or provided for to, but excluding, the next scheduled Interest Payment Date until November 15, 2024. Interest is payable semi-annually in arrears on each May 15 and
November 15, commencing on May 15, 2018, to Holders of record at the close of business on the preceding May 1 and November 1 (whether or not such day is a Business Day), respectively. Additional Interest will be payable as set
forth in Section 4.06(d), Section 4.06(e) and Section 6.03 of the within-mentioned Indenture, and any reference to interest on, or in respect of, any Note therein shall be deemed to include Additional Interest if, in such context, Additional
Interest is, was or would be payable pursuant to any of such Section 4.06(d), Section 4.06(e) or Section 6.03, and any express mention of the payment of Additional Interest in any provision therein shall not be construed as excluding Additional
Interest in those provisions thereof where such express mention is not made.
Any Defaulted Amounts shall accrue interest per annum at the
rate borne by the Notes, subject to the enforceability thereof under applicable law, from, and including, the relevant payment date to, but excluding, the date on which such Defaulted Amounts shall have been paid by the Company, at its election, in
accordance with Section 2.03(c) of the Indenture.
The Company shall pay the principal of and interest on this Note, if and so long as
such Note is a Global Note, in immediately available funds to the Depositary or its nominee, as the case may be, as the registered Holder of such Note. As provided in and subject to the provisions of the Indenture, the Company shall pay the
principal of any Notes (other than Notes that are Global Notes) at the office or agency designated by the Company for that purpose. The Company has initially designated the Trustee as its Paying Agent and Note Registrar in respect of the Notes and
its agency in New York, New York as a place where Notes may be presented for payment or for registration of transfer and exchange.
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1
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Include if a global note.
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2
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Include if a global note.
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3
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Include if a physical note.
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4
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Include if a global note.
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5
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Include if a physical note.
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A-3
Reference is made to the further provisions of this Note set forth on the reverse hereof,
including, without limitation, provisions giving the Holder of this Note the right to convert this Note into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, on the terms and subject to the limitations
set forth in the Indenture. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This Note, and any claim, controversy or dispute arising under or related to this Note, shall be construed in accordance with and governed by
the laws of the State of New York (without regard to the conflicts of laws provisions thereof).
In the case of any conflict between this
Note and the Indenture, the provisions of the Indenture shall control and govern.
This Note shall not be valid or become obligatory for
any purpose until the certificate of authentication hereon shall have been signed manually by the Trustee or a duly authorized authenticating agent under the Indenture.
[
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]
A-4
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
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SAREPTA THERAPEUTICS, INC.
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By:
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Name:
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Title:
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Dated:
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
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U.S. BANK NATIONAL ASSOCIATION
as Trustee,
certifies that this is one of the Notes describedin the within-named Indenture.
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By:
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Authorized Officer
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A-5
[FORM OF REVERSE OF NOTE]
Sarepta Therapeutics, Inc.
1.50%
Convertible Senior Note due 2024
This Note is one of a duly authorized issue of Notes of the Company, designated as its 1.50% Convertible
Senior Notes due 2024 (the “
Notes
”), limited to the aggregate principal amount of $570,000,000, all issued or to be issued under and pursuant to an Indenture dated as of November 14, 2017 (the “
Indenture
”),
between the Company and U.S. BANK NATIONAL ASSOCIATION (the “
Trustee
”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company and the Holders of the Notes. Additional Notes may be issued in an unlimited aggregate principal amount, subject to certain conditions specified in the Indenture. Capitalized terms used in this
Note and not defined in this Note shall have the respective meanings set forth in the Indenture.
In case certain Events of Default shall
have occurred and be continuing, the principal of, and interest on, all Notes may be declared, by either the Trustee or Holders of at least 25% in aggregate principal amount of Notes then outstanding, and upon said declaration shall become, due and
payable, in the manner, with the effect and subject to the conditions and certain exceptions set forth in the Indenture.
Subject to the
terms and conditions of the Indenture, the Company will make all payments and deliveries in respect of the Fundamental Change Repurchase Price on the Fundamental Change Repurchase Date and the principal amount on the Maturity Date, as the case may
be, to the Holder who surrenders a Note to a Paying Agent to collect such payments in respect of the Note. The Company will pay cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private
debts.
The Indenture contains provisions permitting the Company and the Trustee in certain circumstances, without the consent of the
Holders of the Notes, and in certain other circumstances, with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding, evidenced as in the Indenture provided, to execute supplemental
indentures modifying the terms of the Indenture and the Notes as described therein. It is also provided in the Indenture that, subject to certain exceptions, the Holders of a majority in aggregate principal amount of the Notes at the time
outstanding may on behalf of the Holders of all of the Notes waive any past Default or Event of Default under the Indenture and its consequences.
Notwithstanding any other provision of the Indenture or any provision of this Note, each Holder shall have the contractual right to receive
payment or delivery, as the case may be, of (x) the principal (including the Fundamental Change Repurchase Price, if applicable) of, (y) accrued and unpaid interest, if any, on, and (z) the consideration due upon conversion of, this
Note, on or after the respective due dates expressed or provided for in this Note or in the Indenture, and the contractual right to institute suit for the enforcement of any such payment or delivery, as the case may be, on or after such respective
dates, shall not be amended without the consent of each Holder.
A-6
The Notes are issuable in registered form without coupons in denominations of $1,000 principal
amount and integral multiples thereof. At the office or agency of the Company referred to on the face hereof, and in the manner and subject to the limitations provided in the Indenture, Notes may be exchanged for a like aggregate principal amount of
Notes of other authorized denominations, without payment of any service charge but, if required by the Company or Trustee, with payment of a sum sufficient to cover any transfer or similar tax that may be imposed in connection therewith as a result
of the name of the Holder of the new Notes issued upon such exchange of Notes being different from the name of the Holder of the old Notes surrendered for such exchange.
The Notes are not subject to redemption through the operation of any sinking fund or otherwise.
Upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s option, to require the Company to repurchase for
cash all of such Holder’s Notes or any portion thereof (in principal amounts of $1,000 or integral multiples thereof) on the Fundamental Change Repurchase Date at a price equal to the Fundamental Change Repurchase Price.
Subject to the provisions of the Indenture, the Holder hereof has the right, at its option, during certain periods and upon the occurrence of
certain conditions specified in the Indenture, prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, to convert any Notes or portion thereof that is $1,000 or an integral multiple thereof, into
cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, at the Conversion Rate specified in the Indenture, as adjusted from time to time as provided in the Indenture.
A-7
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM = as tenants in common
UNIF GIFT MIN ACT = Uniform Gifts to Minors Act
CUST =
Custodian
TEN ENT = as tenants by the entireties
JT TEN =
joint tenants with right of survivorship and not as tenants in common
Additional abbreviations may also be used though not in the above
list.
A-8
SCHEDULE A
6
SCHEDULE OF EXCHANGES OF NOTES
Sarepta Therapeutics, Inc.
1.50%
Convertible Senior Notes due 2024
The initial principal amount of this Global Note is
DOLLARS ($[ ]). The following increases or decreases in this Global Note have been made:
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Date of exchange
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Amount of
decrease in
principal amount
of this Global Note
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Amount of
increase in
principal amount
of this Global Note
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Principal amount
of this Global Note
following
such
decrease or
increase
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Signature of
authorized
signatory of
Trustee or
Custodian
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6
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Include if a global note.
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A-9
ATTACHMENT 1
[FORM OF NOTICE OF CONVERSION]
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To:
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U.S. BANK NATIONAL ASSOCIATION
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One Federal Street, 3rd Floor
Boston, MA 02110
Attention:
Karen Beard, Vice President
The undersigned registered owner of this Note hereby exercises the option to convert this Note, or the
portion hereof (that is $1,000 principal amount or an integral multiple thereof) below designated, into cash, shares of Common Stock or a combination of cash and shares of Common Stock, at the Company’s election, in accordance with the terms of
the Indenture referred to in this Note, and directs that any cash payable and any shares of Common Stock issuable and deliverable upon such conversion, together with any cash for any fractional share, and any Notes representing any unconverted
principal amount hereof, be issued and delivered to the registered Holder hereof unless a different name has been indicated below. If any shares of Common Stock or any portion of this Note not converted are to be issued in the name of a Person other
than the undersigned, the undersigned will pay all documentary, stamp or similar issue or transfer taxes, if any in accordance with Section 14.02(d) and Section 14.02(e) of the Indenture. Any amount required to be paid to the undersigned on account
of interest accompanies this Note. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.
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
1
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
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Principal amount to be converted (if less than all): $
,000
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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.
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Social Security or Other Taxpayer
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Identification Number
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2
ATTACHMENT 2
[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]
The undersigned registered owner of this Note hereby acknowledges receipt of a
notice from Sarepta Therapeutics, Inc. (the “
Company
”) as to the occurrence of a Fundamental Change with respect to the Company and specifying the Fundamental Change Repurchase Date and requests and instructs the Company to pay to
the registered holder hereof in accordance with Section 15.02 of the Indenture referred to in this Note (1) the entire principal amount of this Note, or the portion thereof (that is $1,000 principal amount or an integral multiple thereof) below
designated, and (2) if such Fundamental Change Repurchase Date does not fall during the period after a Regular Record Date and on or prior to the corresponding Interest Payment Date, accrued and unpaid interest, if any, thereon to, but
excluding, such Fundamental Change Repurchase Date. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.
In the case of Physical Notes, the certificate numbers of the Notes to be repurchased are as set forth below:
Dated:
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Signature(s)
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Social Security or Other Taxpayer
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Identification Number
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Principal amount to be repaid (if less than all): $
,000
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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.
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1
ATTACHMENT 3
[FORM OF ASSIGNMENT AND TRANSFER]
For value
received hereby sell(s), assign(s) and transfer(s) unto
(Please insert social security or Taxpayer Identification Number of assignee) the within Note, and hereby irrevocably constitutes
and appoints attorney to transfer the said Note on the books of the Company, with full power of substitution in the premises.
In connection with any transfer of the within Note occurring prior to the Resale Restriction Termination Date, as defined in the Indenture governing such
Note, the undersigned confirms that such Note is being transferred:
☐ To Sarepta Therapeutics, Inc. or a subsidiary thereof; or
☐ Pursuant to a registration statement that has become or been declared effective under the Securities Act of 1933, as amended; or
☐ Pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended; or
☐ Pursuant to and in compliance with 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.
1
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 Notes are to be delivered, other
than to and in the name of the registered holder.
NOTICE: The
signature on the assignment must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.
2
