INDENTURE
Dated as of May 30, 2023
between
OPTIWAVE SEMICONDUCTOR CORP., a Delaware corporation,
as the Company,
and
BROADMERE TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association organized under the laws of the United States,
as Trustee
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2.75% Convertible Senior Notes due 2028
Aggregate Principal Amount: $287,500,000
CUSIP: 683742AA5 ISIN: US683742AA53
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RECITALS
WHEREAS, Optiwave Semiconductor Corp., a corporation duly organized and existing under the laws of the State of Delaware (Delaware file no. 5738291), with its principal executive offices located at 4800 Great America Parkway, Suite 1200, San Jose, California 95054 (the "Company"), has duly authorized the creation and issuance of Two Hundred Eighty-Seven Million Five Hundred Thousand Dollars ($287,500,000) aggregate principal amount of its 2.75% Convertible Senior Notes due 2028 (the "Notes");
WHEREAS, the Company's common stock, par value $0.001 per share (the "Common Stock"), is listed on The Nasdaq Stock Market LLC ("Nasdaq") under the ticker symbol "OWS";
WHEREAS, the Board of Directors of the Company (the "Board of Directors"), at a meeting duly called and held on May 19, 2023, adopted resolutions authorizing the issuance of the Notes, the execution and delivery of this Indenture, and the consummation of the transactions contemplated hereby, and a Pricing Committee of the Board of Directors, at a meeting duly called and held on May 23, 2023, adopted resolutions approving the final pricing terms of the Notes, including the initial Conversion Rate, the interest rate, and the aggregate principal amount of the offering;
WHEREAS, the Notes are being offered and sold to qualified institutional buyers ("QIBs") in reliance on the exemption from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), provided by Section 4(a)(2) thereof and Rule 144A thereunder, and accordingly the Notes have not been and will not be registered under the Securities Act;
WHEREAS, the Company has requested Broadmere Trust Company, National Association, a national banking association organized under the laws of the United States (the "Trustee"), to act as trustee, registrar, paying agent, and conversion agent under this Indenture, and the Trustee has agreed to accept such trust and to act as trustee, registrar, paying agent, and conversion agent upon the terms and conditions set forth herein;
WHEREAS, the Corporate Trust Office of the Trustee is located at 100 Wall Street, 6th Floor, New York, New York 10005; and
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee hereunder, the valid and legally binding obligations of the Company, and to make this Indenture a valid agreement of the Company and the Trustee, in accordance with their respective terms, have been done.
GRANTING CLAUSE
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each party agrees as follows for the equal and ratable benefit of the Holders of the Notes:
ARTICLE 1
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01 — Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires, the following terms shall have the meanings assigned to them in this Section 1.01. All other terms used but not defined herein shall have the meanings assigned to them in the Notes or, if not defined therein, shall have the meanings assigned to such terms under the Securities Act or the Exchange Act, as applicable.
"Additional Interest" means the additional interest, if any, payable on the Notes pursuant to Section 3.04 and Section 4.06 of this Indenture in certain circumstances in which the Company fails to comply with its reporting obligations hereunder.
"Additional Shares" has the meaning specified in Section 14.03.
"Affiliate" means, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such specified Person. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlling," "controlled by," and "under common control with"), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement, or otherwise. The term "Affiliate" shall be construed consistently with the definition of such term in Rule 144 promulgated under the Securities Act.
"Board of Directors" means the board of directors of the Company, or any duly authorized committee of such board.
"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.
"Business Day" means any day other than a Saturday, a Sunday, or a day on which banking institutions in The City of New York, New York are authorized or obligated by law, regulation, or executive order to close.
"Cap Price" means $110.07 per share of Common Stock (as adjusted for any adjustment to the Conversion Rate), being the cap price referenced in the Capped Call Transactions entered into by the Company in connection with the offering of the Notes. The Cap Price is included herein solely for cross-reference and informational purposes and shall not create any rights or obligations of any party under this Indenture.
"Close of Business" means 5:00 p.m., New York City time.
"Combination Settlement" has the meaning specified in Section 14.02(a)(c).
"Common Stock" means the common stock, par value $0.001 per share, of the Company, subject to Section 14.07.
"Company" means Optiwave Semiconductor Corp., a Delaware corporation, and any Successor Company in accordance with Article 11, until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, means the successor.
"Conversion Agent" means, initially, Broadmere Trust Company, National Association, acting in its capacity as Conversion Agent under this Indenture, and its successors and assigns in such capacity, or any other conversion agent appointed pursuant to Section 2.03.
"Conversion Date" means, with respect to any Note, the date on which the Holder of such Note satisfies all of the requirements for conversion of such Note as set forth in Section 14.02.
"Conversion Price" means, as of any date of determination, a dollar amount (rounded to the nearest cent) equal to One Thousand Dollars ($1,000) divided by the Conversion Rate in effect on such date. As of the date of this Indenture, the initial Conversion Price is approximately $94.50 per share of Common Stock (calculated as $1,000 ÷ 10.5820).
"Conversion Rate" means, for each $1,000 principal amount of Notes, the number of shares of Common Stock deliverable upon conversion, initially equal to 10.5820 shares of Common Stock per $1,000 principal amount of Notes, subject to adjustment as set forth in Article 14.
"Corporate Trust Office" means the office of the Trustee at which at any particular time its corporate trust business with respect to this Indenture shall be principally administered, which office at the date of execution of this Indenture is located at 100 Wall Street, 6th Floor, New York, New York 10005, Attention: Corporate Trust — Relationship Manager.
"CUSIP" means, with respect to the Notes, 683742AA5, as such number may be changed or supplemented from time to time.
"Daily Conversion Value" means, for each of the 40 consecutive Trading Days during the applicable Observation Period, the product of (a) the Conversion Rate in effect on such Trading Day and (b) the Daily VWAP of the Common Stock on such Trading Day.
"Daily Measurement Value" means, with respect to each Trading Day during an Observation Period, the quotient obtained by dividing the Specified Dollar Amount by 40.
"Daily Settlement Amount" means, for each of the 40 consecutive Trading Days during the applicable Observation Period:
(a) if the Company has elected Physical Settlement, a number of shares of Common Stock equal to the Daily Conversion Value for such Trading Day divided by the Daily VWAP for such Trading Day;
(b) if the Company has elected Cash Settlement, an amount of cash equal to the Daily Conversion Value for such Trading Day; and
(c) if the Company has elected Combination Settlement (or is deemed to have elected Combination Settlement), (i) an amount of cash equal to the lesser of (x) the Daily Measurement Value and (y) the Daily Conversion Value for such Trading Day and (ii) if the Daily Conversion Value for such Trading Day exceeds the Daily Measurement Value, a number of shares of Common Stock equal to (A) the excess of the Daily Conversion Value over the Daily Measurement Value, divided by (B) the Daily VWAP for such Trading Day.
"Daily VWAP" means, for each Trading Day, the per share volume-weighted average price of the Common Stock as displayed under the heading "Westmark Services Inc. VWAP" on Westmark Services Inc. page "OWS <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 Common Stock on such Trading Day as determined, using a volume-weighted average price 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.
"Default" means any event that is, or with the giving of notice or lapse of time or both would become, an Event of Default.
"Depositary" means The Depository Trust Company ("DTC"), its nominees, and their respective successors, or any other depositary appointed by the Company with the consent of the Trustee.
"DTC" means The Depository Trust Company.
"Effective Date" means, with respect to any Make-Whole Fundamental Change, the date on which such Make-Whole Fundamental Change occurs or becomes effective.
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
"Fundamental Change" has the meaning specified in Section 15.01.
"Fundamental Change Company Notice" means the written notice delivered by the Company to the Trustee and to each Holder upon the occurrence of a Fundamental Change in accordance with Section 15.03.
"Fundamental Change Repurchase Date" means, with respect to any Fundamental Change, the date fixed by the Company for the repurchase of Notes following such Fundamental Change, which date shall be not less than 20 nor more than 35 Business Days following the date on which the Company delivers the Fundamental Change Company Notice.
"Fundamental Change Repurchase Price" means, with respect to any Note to be repurchased upon a Fundamental Change, an amount in cash equal to 100% of the principal amount of such Note, plus accrued and unpaid interest (including Additional Interest, if any) on such Note to, but excluding, the Fundamental Change Repurchase Date.
"Global Note" means a Note in global form deposited with, or on behalf of, the Depositary, registered in the name of the Depositary or its nominee, substantially in the form set forth in Exhibit A hereto, and bearing the Global Note legend set forth therein.
"Holder" means the Person in whose name a Note is registered on the books of the Registrar.
"Indenture" means this Indenture, as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into in accordance with the applicable provisions hereof.
"Interest Payment Date" means each June 1 and December 1 of each year, commencing on December 1, 2023, and ending on the Maturity Date.
"ISIN" means, with respect to the Notes, US683742AA53, as such number may be changed or supplemented from time to time.
"Last Reported Sale Price" means, on any date, the closing sale price per share (or, if no closing sale price is reported, the average of the last bid price and the last ask price, or, if more than one in either case, the average of the average last bid prices and the average last ask prices) of the Common Stock on such date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is then listed. If the Common Stock is not listed on a U.S. national or regional securities exchange on such date, the Last Reported Sale Price shall be the last quoted bid price per share of Common Stock on such date in the over-the-counter market as reported by Greaves Enterprises or a similar organization. If the Common Stock is not so quoted, the Last Reported Sale Price shall be the average of the mid-point of the last bid price and the last ask price per share of Common Stock on such date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose. As of May 23, 2023, the Last Reported Sale Price of the Common Stock as reported on Nasdaq was $73.38 per share (the "Reference Price").
"Make-Whole Fundamental Change" has the meaning specified in Section 14.03.
"Make-Whole Table" means the table set forth in Schedule I hereto.
"Market Disruption Event" means, with respect to any date, (a) a failure by the primary U.S. national or regional securities exchange on which the Common Stock is then listed (or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, the principal other market on which the Common Stock is then traded) to open for trading during its regular trading session on such date, or (b) the occurrence or existence, for more than one half-hour period in the aggregate, on any scheduled Trading Day of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock.
"Maturity Date" means June 1, 2028.
"Nasdaq" means The Nasdaq Stock Market LLC.
"Note" or "Notes" means any of the 2.75% Convertible Senior Notes due 2028 issued under this Indenture, treated as a single class.
"Observation Period" means, with respect to any conversion of Notes, the 40 consecutive Trading Day period beginning on, and including, the third Trading Day following the relevant Conversion Date; provided, however, that (a) in the case of any conversion in connection with a redemption, the Observation Period means the 40 consecutive Trading Day period beginning on, and including, the 41st scheduled Trading Day immediately preceding the Optional Redemption Date; and (b) in the case of any conversion in connection with a Fundamental Change or Make-Whole Fundamental Change, the Company may (but shall not be required to) specify a shorter Observation Period in the Fundamental Change Company Notice, which period shall in no event be less than 20 consecutive Trading Days.
"Officers' Certificate" means a certificate signed by (a) the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Treasurer, or any Assistant Treasurer, and (b) the Secretary, any Assistant Secretary, the Chief Financial Officer, the Treasurer, or any Assistant Treasurer, of the Company, and delivered to the Trustee. Each such certificate shall include the statements required by Section 17.03 and shall comply with Section 314(e) of the Trust Indenture Act of 1939 (to the extent applicable by its terms or incorporated voluntarily herein).
"Open of Business" means 9:00 a.m., New York City time.
"Opinion of Counsel" means a written opinion from counsel, who may be an employee of or counsel to the Company, that is reasonably acceptable to the Trustee.
"Optional Redemption" has the meaning specified in Section 16.01.
"Optional Redemption Date" means the date fixed for redemption of all or a portion of the Notes pursuant to Article 16.
"Optional Redemption Price" means, with respect to any Note to be redeemed, an amount in cash equal to 100% of the principal amount of such Note, plus accrued and unpaid interest (including Additional Interest, if any) on such Note to, but excluding, the Optional Redemption Date.
"Paying Agent" means, initially, Broadmere Trust Company, National Association, acting in its capacity as Paying Agent under this Indenture, and its successors and assigns in such capacity, or any other paying agent appointed pursuant to Section 2.03.
"Person" means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government, or any agency or political subdivision thereof, or any other entity.
"Physical Note" means a Note in definitive certificated form registered in the name of the Holder thereof, issued in accordance with Section 2.06.
"Physical Settlement" has the meaning specified in Section 14.02(a)(a).
"Principal Amount" means, with respect to any Note, the principal amount as set forth on the face thereof or, in the case of a Global Note, the principal amount shown on the schedule of increases and decreases attached thereto, as the same may be adjusted from time to time.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A under the Securities Act.
"Record Date" means May 15 and November 15 (whether or not such day is a Business Day) immediately preceding the applicable Interest Payment Date.
"Redemption Notice" means the notice of Optional Redemption delivered by the Company to the Trustee and each Holder in accordance with Section 16.02.
"Reference Price" means $73.38 per share of Common Stock, being the Last Reported Sale Price of the Common Stock on Nasdaq on May 23, 2023 (the date on which the pricing of the Notes was determined).
"Registrar" means, initially, Broadmere Trust Company, National Association, acting in its capacity as Registrar under this Indenture, and its successors and assigns in such capacity, or any other registrar appointed pursuant to Section 2.03.
"Responsible Officer" means, with respect to the Trustee, any officer within or associated with the Corporate Trust Office, including any managing director, vice president, assistant vice president, associate, trust officer, assistant trust officer, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above, and also means, with respect to a particular corporate trust matter, any other officer of the Trustee to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
"Rule 144A" means Rule 144A under the Securities Act (including any successor rule thereto), as it may be amended from time to time.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
"Settlement Method" has the meaning specified in Section 14.02(a).
"Specified Dollar Amount" means, with respect to each conversion, the maximum amount of cash (excluding cash delivered in lieu of fractional shares) that the Company will pay per $1,000 principal amount of Notes converted, as specified in its Settlement Method election, or, in the event the Company does not timely elect a Settlement Method (or is deemed to have elected Combination Settlement), $1,000 per $1,000 principal amount of Notes converted.
"Stock Price" has the meaning specified in Section 14.03.
"Successor Company" has the meaning specified in Section 11.01.
"Trading Day" means a day on which (a) trading in the Common Stock generally occurs on Nasdaq or, if the Common Stock is not then listed on Nasdaq, 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 traded, and (b) a Last Reported Sale Price for the Common Stock is available on such exchange or market. If the Common Stock is not so listed or traded, "Trading Day" means a Business Day.
"Transfer Agent" means Clearwater Transfer Services Inc., the transfer agent and registrar for the Common Stock, or any successor transfer agent for the Common Stock.
"Trustee" means Broadmere Trust Company, National Association, a national banking association organized under the laws of the United States, and its successors and assigns in such capacity, until a successor replaces it in accordance with the applicable provisions of this Indenture.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa–77bbbb). The parties acknowledge that the Notes are exempt from the registration and qualification requirements of the TIA as a result of their issuance under Rule 144A; however, the parties voluntarily incorporate herein certain protections customarily associated with the TIA for the benefit of the Holders.
Section 1.02 — Rules of Construction.
(a) Unless the context otherwise requires:
(i) a term has the meaning assigned to it in this Indenture;
(ii) an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles in the United States of America ("GAAP") as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means "including without limitation";
(v) words in the singular include the plural, and words in the plural include the singular;
(vi) provisions apply to successive events and transactions;
(vii) references to sections of or rules under the Securities Act or the Exchange Act shall be deemed to include substitute, replacement, or successor sections or rules adopted by the SEC from time to time;
(viii) "herein," "hereof," "hereunder," and other words of similar import refer to this Indenture as a whole, and not to any particular Article, Section, or other subdivision;
(ix) all references herein to "Articles," "Sections," "Exhibits," and "Schedules" are to Articles, Sections, Exhibits, and Schedules of and to this Indenture unless otherwise specified;
(x) all references to "$" and "dollars" refer to the lawful money of the United States of America; and
(xi) references to any agreement, instrument, or document mean such agreement, instrument, or document as amended, supplemented, or otherwise modified from time to time to the extent permitted by the provisions thereof and by this Indenture.
(b) The Table of Contents and headings of Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture, and shall in no way modify or restrict any of the terms or provisions hereof.
(c) For purposes of determining compliance with any provision of this Indenture that requires a vote, consent, or action by Holders of a specified percentage of the aggregate principal amount of the Notes then "outstanding," Notes owned by the Company or any Affiliate of the Company shall be deemed not to be outstanding.
ARTICLE 2
THE NOTES
Section 2.01 — Form, Dating, and Denomination.
(a) General. The Notes and the Trustee's certificate of authentication to be borne by the Notes shall be substantially in the respective forms set forth in Exhibit A attached hereto, the terms and provisions contained in which are hereby 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.
(b) Denominations. The Notes shall be issued in minimum denominations of $1,000 principal amount and integral multiples of $1,000 in excess thereof. No Note shall be authenticated or delivered in a principal amount less than $1,000.
(c) Global Notes. The Notes shall be initially issued in the form of one or more Global Notes, which shall be deposited with the Trustee, as custodian for the Depositary, registered in the name of Cede & Co. (or such other name as the Depositary or its nominee may request in writing), and shall bear the legends set forth in Exhibit A. The DTC Participant Number for Broadmere Trust Company, National Association is 2174. Members of, or participants in, the Depositary ("DTC Participants") shall have no rights under this Indenture with respect to any Global Note held on their behalf, and the Depositary may be treated by the Company, the Trustee, and any agent of the Company or the Trustee as the absolute owner and Holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, or any agent of the Company or the Trustee from giving effect to any written certification, proxy, or other authorization furnished by the Depositary or impair, as between the Depositary and its DTC Participants, the operation of customary practices governing the exercise of the rights of a Holder of any Note.
(d) CUSIP and ISIN. The Notes shall bear CUSIP No. 683742AA5 and ISIN No. US683742AA53.
(e) Rule 144A Legend. Each Note shall bear the legend regarding restrictions on transfer required by Rule 144A, as set forth on the face of the form of Global Note attached as Exhibit A.
(f) Dating. Each Note shall be dated the date of its authentication by the Trustee.
Section 2.02 — Execution, Authentication, and Delivery.
(a) Execution. The Notes shall be signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company, by manual signature or by facsimile signature. The Company may use the facsimile signature of any Person who at the time of the execution of such Note was duly authorized to sign on behalf of the Company, notwithstanding the fact that at the time the Notes are authenticated and delivered or disposed of, such Person may have ceased to hold such office.
(b) Authentication. No Note shall be valid or obligatory for any purpose unless authenticated by the Trustee. The Trustee shall authenticate Notes by an authorized officer of the Trustee manually or electronically signing the Trustee's certificate of authentication on each Note. Such signature shall be conclusive evidence that the Note so authenticated has been duly authenticated and delivered under this Indenture.
(c) Conditions to Authentication. The Trustee shall authenticate and deliver Notes for original issuance upon receipt of:
(i) a Board Resolution authorizing the issuance of the Notes;
(ii) an Officers' Certificate requesting the Trustee to authenticate Notes in the aggregate principal amount specified therein, and certifying that all conditions precedent to the issuance of the Notes have been satisfied;
(iii) an Opinion of Counsel that the Notes, when authenticated and delivered by the Trustee and issued by the Company in accordance with this Indenture, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to customary exceptions and qualifications; and
(iv) a counterpart of this Indenture duly executed by the Company.
(d) Initial Delivery. On May 30, 2023, the Trustee shall authenticate and deliver Notes in the aggregate principal amount of $250,000,000 (the "Base Notes") upon receipt of the documents specified in Section 2.02(c) and a Company Order directing such authentication and delivery. On June 1, 2023, the Trustee shall authenticate and deliver additional Notes in the aggregate principal amount of $37,500,000 (the "Over-Allotment Notes") upon receipt of a Company Order directing such authentication and delivery and confirmation that the initial purchasers have exercised their over-allotment option in full. The total aggregate principal amount of Notes initially issued hereunder shall be $287,500,000.
(e) The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.
Section 2.03 — Registrar, Paying Agent, and Conversion Agent.
(a) The Company initially appoints Broadmere Trust Company, National Association, acting through its Corporate Trust Office at 100 Wall Street, 6th Floor, New York, New York 10005, to serve as (i) Registrar, (ii) Paying Agent, and (iii) Conversion Agent.
(b) The Company may change any Registrar, Paying Agent, or Conversion Agent without notice to the Holders; provided that the Company shall deliver prior written notice of any such change to the Trustee at least 15 days prior to the effectiveness of such change. The Company or any of its Affiliates may serve as Paying Agent, Registrar, or Conversion Agent; provided that for so long as any Notes are outstanding, there shall at all times be a Paying Agent, Registrar, and Conversion Agent that is a Person other than the Company or any of its Affiliates.
(c) The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent, or Conversion Agent other than the Trustee. Such agreement shall implement the provisions of this Indenture that relate to such agent and shall incorporate the protections afforded to the Trustee for the performance of its obligations hereunder.
Section 2.04 — Paying Agent to Hold Money in Trust.
(a) Not later than 10:00 a.m. New York City time on each Interest Payment Date, Maturity Date, Fundamental Change Repurchase Date, or Optional Redemption Date, the Company shall deposit with the Paying Agent a sum of money sufficient to pay the amounts then becoming due with respect to the Notes, including principal and interest. The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal of or interest on the Notes, and shall notify the Trustee promptly of any default by the Company in making any such payment.
(b) If the Company or any of its Affiliates acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all sums held by it as Paying Agent. The Company shall at any time, upon the written request of the Trustee, cause the Paying Agent to pay to the Trustee all sums so held in trust.
(c) Any money deposited with the Trustee or any Paying Agent for the payment of principal of or interest on any Note that remains unclaimed for two years after such principal or interest has become due and payable shall be paid to the Company on the Company's written request, and thereafter the Holder of such Note shall, as an unsecured general creditor, look only to the Company for the payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money shall thereupon cease.
Section 2.05 — Holder Lists.
(a) The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders of Notes. If the Trustee is not the Registrar, the Company shall furnish to the Trustee, or shall cause the Registrar to furnish to the Trustee, not later than five Business Days prior to each Interest Payment Date and at such other times as the Trustee may request in writing, a list, in such form as the Trustee may reasonably require, of the names and addresses of all Holders of Notes as of the most recent practicable date.
(b) The Company shall furnish, or cause the Registrar to furnish, updated Holder lists to the Trustee semi-annually (on or about each Record Date) and at any other time upon the reasonable written request of the Trustee.
Section 2.06 — Transfer and Exchange.
(a) General. When Notes are presented to the Registrar with a request to register the transfer of such Notes or to exchange such Notes for an equal aggregate principal amount of Notes of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if the Registrar's requirements for such transactions are met; provided, however, that the Notes so surrendered for transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Company and the Registrar, duly executed by the Holder thereof or by an attorney duly authorized in writing.
(b) Transfer Restrictions. The Notes have not been registered under the Securities Act and may not be offered, sold, pledged, or otherwise transferred except (i) to the Company or any of its subsidiaries, (ii) to a Person whom the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB, in a transaction meeting the requirements of Rule 144A, (iii) outside the United States in an offshore transaction in compliance with Rule 903 or Rule 904 of Regulation S under the Securities Act, (iv) pursuant to an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available), or (v) pursuant to an effective registration statement under the Securities Act, in each case in accordance with any applicable securities laws of any State of the United States.
(c) Legends. Each Note (and each Note issued upon transfer or exchange thereof) shall bear the restrictive transfer legend set forth in Exhibit A, unless the Company determines, after consultation with counsel, that such legend is no longer required under applicable requirements of the Securities Act.
(d) Certification. Prior to the registration of any transfer of Notes, the Holder thereof shall deliver to the Registrar a certificate substantially in the form set forth in Exhibit A (or such other form as may be satisfactory to the Registrar and the Company) certifying that the transfer complies with the restrictions on transfer set forth herein and in the Notes.
(e) Exchange of Global Notes for Physical Notes. A Global Note shall be exchangeable for Physical Notes only if (i) the Depositary notifies the Company that it is unwilling or unable to continue as depositary for the Global Notes or has ceased to be a registered clearing agency under the Exchange Act and, in any such case, a successor depositary is not appointed within 90 days after the Company receives such notice or becomes aware of such ineligibility, or (ii) the Company, in its sole discretion, determines that the Global Notes shall be exchangeable for Physical Notes, or (iii) an Event of Default has occurred and is continuing and the Registrar has received a written request from a beneficial owner to exchange its beneficial interest in a Global Note for Physical Notes. In any such case, the Company shall promptly make available to the Trustee a sufficient number of Physical Notes for delivery in exchange for the Global Notes.
(f) No service charge shall be made for any registration of transfer or exchange of Notes, but the Company may require payment of a sum sufficient to cover any transfer tax or other governmental charge payable in connection therewith.
Section 2.07 — Replacement Notes.
If any Note becomes mutilated, lost, stolen, or destroyed, the Company shall, upon the written request of the Holder, execute and the Trustee shall authenticate and deliver a replacement Note of like tenor and aggregate principal amount, bearing a number not contemporaneously outstanding. In case of a mutilated Note, the Holder shall surrender such Note to the Trustee. In case of a lost, stolen, or destroyed Note, the Holder shall furnish to the Company and the Trustee (a) such evidence of the loss, theft, or destruction as shall be satisfactory to the Company and the Trustee and (b) such security or indemnity as may be required by the Company and the Trustee to hold each of them harmless. The Company may charge the Holder for the expenses of the Company and the Trustee in replacing a Note, including the reasonable fees and expenses of counsel.
Section 2.08 — Outstanding Notes.
Notes outstanding at any time are all Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest of a Global Note effected in accordance with this Indenture, and those described in this Section 2.08 as not outstanding. Notes that have been paid in full, converted in full, or delivered for cancellation shall cease to be outstanding. A Note does not cease to be outstanding because the Company or an Affiliate holds the Note; provided, however, that in determining whether the Holders of the requisite principal amount of Notes have given or concurred in any direction, waiver, consent, or other action under this Indenture, Notes owned by the Company or any of its Affiliates shall be considered as though not outstanding. If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Note is held by a protected purchaser.
Section 2.09 — Treasury Notes.
The Company may acquire Notes and hold them in its treasury. Notes held by the Company in its treasury shall not be deemed outstanding for any purpose under this Indenture, including for determining whether Holders of the requisite percentage of Notes have consented to an amendment or waiver.
Section 2.10 — Temporary Notes.
Pending the preparation of definitive Notes, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Notes that are in any authorized denomination, substantially in the form of the definitive Notes but with such omissions, insertions, and variations as may be appropriate for temporary Notes. Every temporary Note shall be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Notes. Without unreasonable delay, the Company shall execute and shall furnish definitive Notes, and thereupon any temporary Note may be surrendered in exchange therefor at the Corporate Trust Office, and the Trustee shall authenticate and deliver in exchange for each such temporary Note a definitive Note or Notes of the same aggregate principal amount.
Section 2.11 — Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange, payment, conversion, or repurchase, and the Trustee shall promptly cancel such Notes in accordance with its standard retention/destruction procedures. The Company may not reissue or resell a Note after such Note has been paid in full, converted in full, or delivered for cancellation, and all such Notes shall be canceled.
Section 2.12 — CUSIP and ISIN Numbers.
The Company has caused CUSIP No. 683742AA5 and ISIN No. US683742AA53 to be printed on the Notes. The Trustee may use CUSIP and ISIN numbers in any notices to the Holders as a convenience to such Holders; provided that neither the Company nor the Trustee shall have any responsibility for any defect in the CUSIP or ISIN numbers as printed on the Notes or as contained in any notice, and any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice and that reliance may be placed only on the other identification numbers printed on the Notes.
Section 2.13 — Additional Notes.
(a) The Company may from time to time, without notice to or the consent of the Holders, create and issue additional Notes ("Additional Notes") under this Indenture ranking equally and ratably with the Notes in all respects (or in all respects except for the issue date, the issue price, the first Interest Payment Date, and the first date from which interest will accrue), so that such Additional Notes shall be consolidated with and form a single series with, and shall have the same terms as to status, redemption, conversion, and otherwise as, the Notes initially issued hereunder; provided that (i) if such Additional Notes are not fungible with the Notes initially issued hereunder for United States federal income tax purposes, such Additional Notes shall have a separate CUSIP number and ISIN from the Notes initially issued hereunder, and (ii) the issuance of any Additional Notes shall not cause an Event of Default under this Indenture.
(b) The aggregate principal amount of Additional Notes that may be issued hereunder is unlimited. Any Additional Notes issued pursuant to this Section 2.13 shall be authenticated and delivered by the Trustee upon receipt of a Company Order, an Officers' Certificate, and an Opinion of Counsel in accordance with Section 2.02(c) (with such modifications as may be appropriate).
ARTICLE 3
INTEREST
Section 3.01 — Interest Rate and Payment Dates.
(a) Each Note shall bear interest at the rate of 2.75% per annum from June 1, 2023, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, until the principal thereof is paid or made available for payment or such Note has been converted. Interest on the Notes shall be computed on the basis of a 360-day year composed of twelve 30-day months.
(b) Interest on the Notes shall be payable semi-annually in arrears on each Interest Payment Date, commencing on December 1, 2023, to the Holders of record at the Close of Business on the Record Date immediately preceding such Interest Payment Date. Interest on any Note shall accrue from, and including, the most recent Interest Payment Date to which interest has been paid (or, if no interest has been paid, from June 1, 2023), to, but excluding, the next Interest Payment Date or the Maturity Date, as the case may be.
(c) Interest shall cease to accrue on a Note upon its payment in full, its conversion in full, or its cancellation. If any Interest Payment Date, the Maturity Date, or any other date on which interest on the Notes is required to be paid falls on a day that is not a Business Day, payment shall be made on the next succeeding Business Day with the same force and effect as if made on the date such payment was due, and no additional interest shall accrue as a result of such delay.
Section 3.02 — Record Dates.
(a) The regular Record Dates for the payment of interest on the Notes shall be May 15 and November 15 (whether or not such day is a Business Day) immediately preceding the applicable Interest Payment Date. Interest on the Notes payable on any Interest Payment Date shall be payable to the Persons who are Holders at the Close of Business on the applicable Record Date, notwithstanding the cancellation or conversion of such Notes after such Record Date and on or before such Interest Payment Date.
(b) Notes that are authenticated by the Trustee between the Close of Business on a Record Date and the Open of Business on the next succeeding Interest Payment Date shall bear interest from, and including, such Interest Payment Date. Interest payable at the Maturity Date or upon any earlier date on which the principal of a Note becomes due and payable (whether by acceleration, redemption, repurchase upon Fundamental Change, or otherwise) shall be paid to the Person to whom principal is paid.
Section 3.03 — Interest on Overdue Amounts.
If the Company shall default in the payment of the principal of or interest (including Additional Interest, if any) on any Note when the same becomes due and payable, whether at maturity, upon acceleration, redemption, required repurchase, or otherwise, the Company shall pay interest on such overdue principal, and (to the extent lawful) on such overdue installment of interest, at the rate of 2.75% per annum plus 1.00% per annum (i.e., a total penalty rate of 3.75% per annum), compounded semi-annually, from the date such amounts became due to the date payment thereof has been made or duly provided for.
Section 3.04 — Additional Interest.
(a) If the Company fails to comply with its reporting obligations under Section 4.03 of this Indenture (a "Reporting Default"), then Additional Interest shall accrue on the Notes at a rate per annum equal to 0.25% of the outstanding principal amount of the Notes for each day during the first 180 days during which such Reporting Default is continuing, and at a rate per annum equal to 0.50% of the outstanding principal amount of the Notes for each day thereafter during which such Reporting Default is continuing; provided that Additional Interest shall not accrue with respect to any Reporting Default after such Reporting Default has been cured.
(b) Additional Interest, if any, shall be payable on the same dates and in the same manner as regular interest on the Notes. The accrual of Additional Interest on the Notes shall be the exclusive remedy of the Holders for any Reporting Default; provided that the foregoing shall not limit the Holders' rights under Section 6.01.
(c) If Additional Interest is payable by the Company, the Company shall, prior to the applicable Interest Payment Date, deliver to the Trustee an Officers' Certificate specifying the amount of Additional Interest payable on such Interest Payment Date, the amount due per $1,000 principal amount of Notes, and the Reporting Default to which such Additional Interest relates.
ARTICLE 4
COVENANTS
Section 4.01 — Payment of Notes.
(a) The Company shall pay or cause to be paid the principal of and interest (including Additional Interest, if any) on the Notes on the dates and in the manner provided in this Indenture and in the Notes. An installment of principal or interest shall be considered paid on the date it is due if the Trustee or the Paying Agent holds as of 10:00 a.m. New York City time on that date money designated for and sufficient to pay the installment in full and is not prohibited from paying such money to the Holders pursuant to the terms of this Indenture.
(b) The Company shall pay interest (including Additional Interest, if any) on overdue principal and, to the extent lawful, on overdue installments of interest at the rates and in the manner specified in Section 3.03.
(c) Payments of principal of and interest on Global Notes shall be made by wire transfer of immediately available funds to the Depositary in accordance with the Depositary's customary procedures. Payments of principal of and interest on Physical Notes shall be made, at the Company's option, by check mailed to the Holders at their addresses set forth in the register of Holders maintained by the Registrar, or, upon written request by a Holder of Physical Notes in an aggregate principal amount in excess of $1,000,000, by wire transfer of immediately available funds to an account in the United States designated by such Holder to the Paying Agent not later than 15 days prior to the applicable payment date.
Section 4.02 — Maintenance of Office or Agency.
(a) The Company shall maintain in the Borough of Manhattan, The City of New York, an office or agency where the Notes may be presented for payment, for conversion, for registration of transfer, or for exchange (the "Company Office"). Such office or agency shall initially be the Corporate Trust Office of the Trustee at 100 Wall Street, 6th Floor, New York, New York 10005. The Company shall give prompt written notice to the Trustee and the Holders of the location, and any change in the location, of such office or agency.
(b) The Company may also from time to time designate 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 any such designation; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, The City of New York for the purposes specified in clause (a) above.
Section 4.03 — Reports and Other Information.
(a) So long as any Notes remain outstanding, the Company shall file with the SEC and furnish to the Trustee and, upon request, to any Holder or beneficial owner of Notes (or make available through the SEC's Electronic Data Gathering, Analysis, and Retrieval system ("EDGAR") or any successor system):
(i) within the time period specified in the Exchange Act and the rules and regulations promulgated thereunder (after giving effect to any grace period or extension provided by Rule 12b-25 under the Exchange Act), all annual reports on Form 10-K (or any successor form) that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) within the time period specified in the Exchange Act and the rules and regulations promulgated thereunder (after giving effect to any grace period or extension provided by Rule 12b-25 under the Exchange Act), all quarterly reports on Form 10-Q (or any successor form) that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act;
(iii) within the time period specified in the Exchange Act and the rules and regulations promulgated thereunder, all current reports on Form 8-K (or any successor form) that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act; and
(iv) promptly after the same are available, copies of any documents or reports that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act that are not described in clauses (i) through (iii) above (excluding any information, documents, or reports, or portions thereof, that are subject to confidential treatment by the SEC, and any Form SD and the related conflict minerals reports).
(b) The SEC Central Index Key ("CIK") number for the Company is 0001823467.