INDENTURE

INDENTURE
Dated as of [●], 2023
among
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, Registrar, Paying Agent, and Conversion Agent
_
2.75% Convertible Senior Notes due 2028
_
DRAFT — Calderwood & Harkness LLP — April 21, 2023 Privileged & Confidential — For Discussion Purposes Only
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RECITALS
WHEREAS, Optiwave Semiconductor Corp., a corporation duly organized and existing under the laws of the State of Delaware, with its principal executive offices at 4800 Great America Parkway, Suite 1200, San Jose, California 95054 (the "Company"), has duly authorized the creation and issuance of its 2.75% Convertible Senior Notes due 2028 (the "Notes") in an aggregate principal amount of up to $287,500,000, consisting of a base offering of $250,000,000 aggregate principal amount of Notes plus up to $37,500,000 aggregate principal amount of additional Notes issuable upon the exercise of the over-allotment option granted to the Initial Purchasers (as defined herein);
WHEREAS, the Notes are being offered and sold to qualified institutional buyers (as defined in Rule 144A under the Securities Act of 1933, as amended (the "Securities Act")) in reliance on the exemption from the registration requirements of the Securities Act provided by Rule 144A thereunder, and are not being registered under the Securities Act or any state securities laws;
WHEREAS, the Company has duly authorized the execution and delivery of this Indenture (as defined herein) and the issuance of the Notes hereunder;
WHEREAS, Broadmere Trust Company, National Association, a national banking association organized under the laws of the United States, with its Corporate Trust Office at 100 Wall Street, 6th Floor, New York, New York 10005 (the "Trustee"), has agreed to act as Trustee, Registrar, Paying Agent, and Conversion Agent under this Indenture upon the terms and conditions herein set forth; and
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee hereunder and duly issued by the Company, the valid, binding, and legally enforceable obligations of the Company, and to make this Indenture a valid and binding agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the mutual agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Trustee hereby agree as follows for the equal and ratable benefit of the Holders of the Notes:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 — Definitions
The following terms shall have the meanings ascribed to them below for all purposes of this Indenture. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939, as amended (the "TIA"), or by reference to the TIA in the Securities Act, have the meanings assigned to them therein.
"Additional Interest" means any additional interest payable on the Notes pursuant to Section 6.03 of this Indenture as a result of the Company's failure to comply with its reporting obligations under Section 10.03(b) of this Indenture.
"Additional Notes" means any additional Notes issued under Section 2.01 and Section 2.13 of this Indenture in connection with the exercise by the Initial Purchasers of the over-allotment option granted pursuant to the Purchase Agreement, in an aggregate principal amount of up to $37,500,000.
"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 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. For the avoidance of doubt, the determination of whether a Person is an "Affiliate" shall be consistent with the meaning ascribed to such term in Rule 144 under the Securities Act.
"Board of Directors" means the board of directors of the Company or any duly authorized committee thereof, including, without limitation, any pricing committee of the board of directors.
"Board Resolution" means a resolution duly adopted by the Board of Directors and in full force and effect at the time of determination, a copy of which has been certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee.
"Business Day" means any day other than a Saturday, a Sunday, or a day on which banking institutions in The City of New York are authorized or required by law, regulation, or executive order to close.
"Capped Call Transactions" means the capped call transactions entered into by the Company with Ridgepoint Capital Markets LLC and Northvane Financial Products LP, in each case in connection with the offering of the Notes and on terms and conditions described in the Offering Memorandum. For the avoidance of doubt, this Indenture does not govern the Capped Call Transactions, and the Capped Call Transactions are separate transactions entered into by the Company with such counterparties and are not part of the terms of the Notes.
"Cash Settlement" has the meaning specified in Section 14.02(a).
"Close of Business" means 5:00 p.m., New York City time.
"Closing Date" means [●], 2023.
"Closing Sale Price" of the Common Stock on any date means the closing sale price per share (or, if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is traded. If the Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the "Closing Sale Price" shall be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant date as reported by Greaves Enterprises or a similar organization. If the Common Stock is not so quoted, the "Closing Sale Price" shall be the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.
"Commission" or "SEC" means the U.S. Securities and Exchange Commission.
"Common Stock" means the common stock of the Company, par value $0.001 per share, listed on The Nasdaq Global Select Market under the ticker symbol "OWS," or any shares of capital stock into which such Common Stock shall be reclassified or changed.
"Company" means Optiwave Semiconductor Corp., a Delaware corporation, and, subject to Article 11, its successors and assigns.
"Company Order" means a written request or order signed in the name of the Company by an Officer of the Company and delivered to the Trustee.
"Conversion Agent" means Broadmere Trust Company, National Association, acting in its capacity as conversion agent under this Indenture, or any successor conversion agent appointed by the Company in accordance with the terms of this Indenture.
"Conversion Date" has the meaning specified in Section 14.02.
"Conversion Obligation" has the meaning specified in Section 14.01.
"Conversion Price" means, as of any date, $1,000 divided by the Conversion Rate as of such date. The initial Conversion Price is approximately $94.50 per share of Common Stock (based on the initial Conversion Rate of 10.5820 shares of Common Stock per $1,000 principal amount of Notes).
"Conversion Rate" means, initially, 10.5820 shares of Common Stock per $1,000 principal amount of Notes, subject to adjustment as provided in Article 14 of this Indenture.
"Corporate Trust Office" means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which office at the date of this Indenture is located at 100 Wall Street, 6th Floor, New York, New York 10005.
"CUSIP" means 683742AA5 (or any successor CUSIP number assigned to the Notes).
"Daily Conversion Value" has the meaning specified in Section 14.02(a).
"Daily Settlement Amount" has the meaning specified in Section 14.02(a).
"Daily VWAP" means, for any 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 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.
"Default" means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default as defined in Section 6.01.
"Defaulted Amounts" means any amounts on any Note (including, without limitation, principal, interest, and the Fundamental Change Repurchase Price) that are payable but are not punctually paid or duly provided for.
"Depositary" or "DTC" means The Depository Trust Company, its nominees, and their respective successors.
"Effective Date" has the meaning specified in Section 14.04, as applicable to the relevant anti-dilution adjustment or Make-Whole Fundamental Change.
"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 promulgated thereunder.
"Ex-Dividend Date" means the first date on which shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend, or distribution in question, from the Company or, if applicable, from the seller of the Common Stock on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.
"Free Conversion Date" means March 1, 2028.
"Fundamental Change" has the meaning specified in Section 15.01.
"Fundamental Change Company Notice" has the meaning specified in Section 15.02(b).
"Fundamental Change Repurchase Date" has the meaning specified in Section 15.02(b).
"Fundamental Change Repurchase Notice" has the meaning specified in Section 15.02(c).
"Fundamental Change Repurchase Price" has the meaning specified in Section 15.02(a).
"Global Note" means a Note in the form of a global note registered in the name of the Depositary or its nominee, substantially in the form set forth in Exhibit A hereto, issued in accordance with Section 2.01.
"Holder" means, with respect to any Note, the Person in whose name such 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 supplemental indentures entered into pursuant to the applicable provisions hereof.
"Initial Purchasers" means Ridgepoint Capital Markets LLC, Harborstone Securities Inc., and Velthorn Zanthor & Co., collectively, and their respective successors and assigns.
"Interest Payment Date" means June 1 and December 1 of each year, commencing December 1, 2023.
"ISIN" means US683742AA53 (or any successor ISIN assigned to the Notes).
"Last Reported Sale Price" of the Common Stock on any date means the closing sale price per share (or, if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for The Nasdaq Global Select Market or, if the Common Stock is not listed on The Nasdaq Global Select Market 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 for trading on a U.S. national or regional securities exchange on the relevant date, the "Last Reported Sale Price" shall be determined in the manner set forth in the definition of "Closing Sale Price."
"Make-Whole Fundamental Change" has the meaning specified in Section 14.03 and Section 15.03.
"Market Disruption Event" has the meaning specified in Section 14.01(c).
"Maturity Date" means June 1, 2028, unless earlier redeemed, repurchased, or converted.
"Net Share Settlement" has the meaning specified in Section 14.02(a).
"Note" or "Notes" means the Company's 2.75% Convertible Senior Notes due 2028 issued under this Indenture and authenticated by the Trustee.
"Observation Period" has the meaning specified in Section 14.02.
"Officer" means the Chairman of the Board, any Vice Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Treasurer, the Secretary, or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers of the Company, one of whom must be the principal executive officer, the principal financial officer, or the principal accounting officer of the Company, and delivered to the Trustee. Each such certificate shall include the statements provided for in Section 314(e) of the TIA, if applicable.
"Offering Memorandum" means the offering memorandum dated May 23, 2023, relating to the offering and sale of the Notes.
"Open of Business" means 9:00 a.m., New York City time.
"Opinion of Counsel" means a written opinion of legal counsel (who may be counsel to the Company) that is reasonably acceptable to the Trustee.
"Optional Redemption" has the meaning specified in Article 16.
"Optional Redemption Date" has the meaning specified in Section 16.01.
"Optional Redemption Price" has the meaning specified in Section 16.01(c).
"Paying Agent" means Broadmere Trust Company, National Association, acting in its capacity as paying agent under this Indenture, or any successor paying agent appointed by the Company in accordance with the terms of this Indenture.
"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 Settlement" has the meaning specified in Section 14.02(a).
"Pricing Date" means May 23, 2023.
"Purchase Agreement" means the Purchase Agreement, dated May 23, 2023, among the Company and the Initial Purchasers, relating to the offer and sale of the Notes.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Record Date" means, with respect to any Interest Payment Date, May 15 or November 15 (whether or not such day is a Business Day) immediately preceding the relevant Interest Payment Date.
"Redemption Notice" has the meaning specified in Section 16.02.
"Reference Price" means $73.38 per share, representing the Closing Sale Price of the Common Stock on The Nasdaq Global Select Market on the Pricing Date.
"Register" means the register of Holders maintained by the Registrar pursuant to Section 2.03.
"Registrar" means Broadmere Trust Company, National Association, acting in its capacity as registrar under this Indenture, or any successor registrar appointed by the Company in accordance with the terms of this Indenture.
"Relevant Stock Exchange" means The Nasdaq Global Select Market or, if the Common Stock is not then listed on The Nasdaq Global Select Market, the principal other U.S. national or regional securities exchange on which the Common Stock is then listed, or any successor exchange thereto.
"Required Holders" means Holders of at least 25% in aggregate principal amount of the Notes then outstanding.
"Rule 144" means Rule 144 under the Securities Act (or any successor rule thereto).
"Rule 144A" means Rule 144A under the Securities Act (or any successor rule thereto).
"Scheduled Trading Day" means a day that is scheduled to be a Trading Day on the Relevant Stock Exchange. If the Common Stock is not listed on any U.S. national or regional securities exchange, "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 Method" has the meaning specified in Section 14.02(a).
"Significant Subsidiary" means, with respect to the Company, any Subsidiary of the Company that would constitute a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X promulgated by the SEC (as such regulation is in effect on the date of this Indenture), substituting "5%" for "10%" wherever "10%" appears therein.
"Spin-Off" has the meaning specified in Section 14.04(c).
"Stock Price" means, with respect to any Make-Whole Fundamental Change, the consideration paid or payable per share of Common Stock in such transaction. If holders of Common Stock receive only cash in such transaction, the Stock Price shall equal the cash amount paid per share. In all other cases, the Stock Price shall equal the average of the Last Reported Sale Prices of the Common Stock over the five consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Effective Date of the Make-Whole Fundamental Change.
"Subsidiary" means, with respect to any Person, any corporation, association, partnership, limited liability company, or other business entity of which more than 50% of the total voting power of shares of capital stock or other interests (including partnership and limited liability company interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, general partners, or trustees thereof, as applicable, 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.
"Successor Company" has the meaning specified in Section 11.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa–77bbbb), as amended and in effect on the date of this Indenture.
"Trading Day" means a day on which (i) trading in the Common Stock (or other security for which a Daily VWAP, Last Reported Sale Price, or 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, and (ii) a Last Reported Sale Price for the Common Stock (or such other security) is available on such exchange. If the Common Stock (or such other security) is not so listed, "Trading Day" means a Business Day.
"Transfer Agent" means Clearwater Transfer Services Inc., 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, until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, means the successor serving hereunder.
Section 1.02 — Other Definitions
The following terms are defined in the Sections of this Indenture set forth opposite such terms:
Section 1.03 — Incorporation by Reference of Trust Indenture Act
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
(a) "Commission" means the SEC;
(b) "indenture securities" means the Notes;
(c) "indenture security holder" means a Holder;
(d) "indenture to be qualified" means this Indenture;
(e) "indenture trustee" or "institutional trustee" means the Trustee; and
(f) "obligor" on the indenture securities means the Company and any other obligor on the Notes.
All other terms used in this Indenture that are defined by the TIA, defined by reference to the TIA in the Securities Act, or defined by SEC rules under the TIA have the meanings so assigned to them therein. Notwithstanding the foregoing, this Indenture is not required to be and is not qualified under the TIA as of the date hereof. In the event that this Indenture or the Notes become subject to the TIA at any time after the date hereof, the provisions of the TIA that are required to be part of, and to govern, indentures qualified under the TIA shall be deemed incorporated by reference herein and shall supersede any inconsistent provision of this Indenture to the extent of such inconsistency.
Section 1.04 — Rules of Construction
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with U.S. generally accepted accounting principles as in effect from time to time;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
(e) "including" means "including, without limitation";
(f) "will" shall be interpreted to express a command;
(g) provisions apply to successive events and transactions;
(h) 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;
(i) unless otherwise indicated, all references to "Sections" or "Articles" refer to the corresponding Sections or Articles of this Indenture;
(j) references to "$" or "dollars" mean United States dollars;
(k) headings of the Articles and Sections of this Indenture and the Table of Contents 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;
(l) references to any agreement or contract are to that agreement or contract as amended, modified, restated, or supplemented from time to time in accordance with the terms thereof; and
(m) the words "herein," "hereof," and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section, or other subdivision.
ARTICLE 2
THE NOTES
Section 2.01 — Form, Dating, and Denominations
(a) The Notes and the Trustee's certificate of authentication shall be substantially in the form of Exhibit A hereto. The Notes may have notations, legends, or endorsements required by law, securities exchange rule, or usage. Each Note shall be dated the date of its authentication.
(b) The Notes shall be issued in fully registered form only, without coupons, in minimum denominations of $1,000 principal amount and integral multiples of $1,000 in excess thereof.
(c) The Notes shall initially be issued in the form of one or more Global Notes, registered in the name of Cede & Co. (as nominee of DTC) and deposited with the Trustee, as custodian for DTC. DTC Participant Number for Broadmere Trust Company, National Association is 2174. Each Global Note shall represent such aggregate principal amount of Notes as shall be specified therein and shall provide that it represents 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 reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee, in accordance with the instructions given by the Holder thereof as required by Section 2.06 hereof.
(d) The CUSIP number assigned to the Notes is 683742AA5 and the ISIN assigned to the Notes is US683742AA53.
(e) The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is limited to $287,500,000, consisting of an initial issuance of $250,000,000 aggregate principal amount of Notes on the Closing Date, plus up to $37,500,000 aggregate principal amount of Additional Notes issuable upon exercise of the over-allotment option granted to the Initial Purchasers in the Purchase Agreement.
Section 2.02 — Execution, Authentication, and Delivery
(a) The Notes shall be executed on behalf of the Company by manual or facsimile signature of one or more Officers of the Company authorized by the Board of Directors to sign the Notes. The signature of any such Officer on the Notes may be manual or facsimile. Notes bearing the manual or facsimile signature of individuals who were, at the time of execution, authorized Officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Notes or did not hold such offices at the date of such Notes.
(b) No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless and until authenticated substantially in the form set forth in Exhibit A hereto by the manual or electronic signature of a duly authorized signatory of the Trustee. The Trustee's certificate of authentication on any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder. The Trustee shall, upon receipt of a Company Order and an Officers' Certificate and an Opinion of Counsel, authenticate and deliver the Notes.
(c) On the Closing Date, the Trustee shall authenticate and deliver the initial $250,000,000 aggregate principal amount of Notes upon the Company Order. Thereafter, the Trustee shall authenticate and deliver Additional Notes (up to an aggregate principal amount of $37,500,000) upon the Company Order evidencing the exercise of the over-allotment option, together with an Officers' Certificate and an Opinion of Counsel, in each case in form and substance reasonably satisfactory to the Trustee.
Section 2.03 — Registrar and Paying Agent
(a) The Company shall maintain (i) an office or agency where Notes may be presented for payment (the "Paying Agent"), (ii) an office or agency where Notes may be presented for conversion (the "Conversion Agent"), and (iii) an office or agency where Notes may be presented for registration of transfer or for exchange (the "Registrar"). The Registrar shall keep the Register of the Notes and of their transfer and exchange. The Company may appoint one or more additional paying agents, conversion agents, or registrars and may terminate the appointment of any paying agent, conversion agent, or registrar. The Company may act as its own Paying Agent, Conversion Agent, or Registrar.
(b) The Company hereby initially appoints Broadmere Trust Company, National Association, as Registrar, Paying Agent, and Conversion Agent. The Corporate Trust Office of the Trustee at 100 Wall Street, 6th Floor, New York, New York 10005 shall serve as the initial office or agency of the Company for each such purpose.
(c) The Company shall give prompt written notice to the Trustee of any change in the office or agency of the Registrar, Paying Agent, or Conversion Agent and of the appointment of any additional registrar, paying agent, or conversion agent, and shall provide notice to the Holders of any change in the location of the office or agency of the Paying Agent or the Conversion Agent.
Section 2.04 — Paying Agent to Hold Money in Trust
(a) The Company shall require each Paying Agent (other than the Trustee) to agree in writing that such Paying Agent will hold in trust, for the benefit of the Holders of the Notes or the Trustee, all sums held by such Paying Agent for the payment of principal of or interest on the Notes (or the Fundamental Change Repurchase Price or the Optional Redemption Price, as applicable), and will notify the Trustee promptly in writing of any Default by the Company in making any such payment. While any such Default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee.
(b) If the Company acts as its own Paying Agent, it shall, on or before each date on which any principal, interest, Fundamental Change Repurchase Price, or Optional Redemption Price is due and payable, segregate and hold in a separate trust fund for the benefit of the Holders a sum sufficient to pay such amount until such sums shall be paid to such Persons or otherwise disposed of as herein provided. The Company shall promptly notify the Trustee of any failure by the Company so to act.
(c) Anything in this Indenture to the contrary notwithstanding, if any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of principal of or interest on any Note and remaining unclaimed for two years after such principal, interest, or other sum has become due and payable, shall be paid to the Company upon Company Order, or (if then held by the Company) shall be discharged from such trust. After such payment to the Company, the Holder of such Note shall, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee 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 City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 2.05 — Holder Lists
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee, in writing and in such form as the Trustee may reasonably require, (a) semi-annually, no later than each Record Date, and (b) at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of all Holders.
Section 2.06 — Transfer and Exchange
(a) General. When a Note is presented to the Registrar with a request to register the transfer of such Note or to exchange such Note for an equal principal amount of Notes of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if the requirements for such transactions set forth in this Indenture and in the Notes are satisfied. To permit registrations of transfer and exchanges, the Company shall execute and the Trustee shall authenticate Notes at the Registrar's request. No service charge shall be made to a Holder for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.
(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 the transferor reasonably believes is a QIB in a transaction meeting the requirements of Rule 144A, (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, or (iv) 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) Restricted Notes Legend. Each Global Note and each certificated Note (if any) shall bear a restrictive legend substantially as set forth in Exhibit A hereto (the "Restricted Notes Legend"). The Restricted Notes Legend shall not be removed from any Note unless there is delivered to the Company and the Registrar such satisfactory evidence (which may include an Opinion of Counsel) as may reasonably be required by the Company that neither the legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A or Rule 144 under the Securities Act, or that the Notes are not "restricted securities" within the meaning of Rule 144. Upon provision of such satisfactory evidence, the Trustee, at the written direction of the Company, shall authenticate and deliver in exchange for such Note a new Note of like tenor and aggregate principal amount that does not bear such legend.
(d) Certification Requirements. A transferor of a Note shall provide to the Registrar a written certification (in the form set forth in the Notes or in such other form as may be acceptable to the Company and the Registrar) that such transfer is being made (i) to a Person whom the transferor reasonably believes is a QIB within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, or (ii) pursuant to another applicable exemption from registration under the Securities Act.
(e) Global Notes. Transfers of interests in Global Notes shall be made only through the book-entry system of DTC, in accordance with DTC's procedures, and the provisions of this Section 2.06.
Section 2.07 — Replacement Notes
If any mutilated Note is surrendered to the Trustee, or if the Holder of a Note claims that the Note has been lost, destroyed, or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Note if the Trustee's and the Company's requirements are met. If required by the Trustee or the Company, an indemnity bond or other security must be posted that is sufficient in the judgment of both the Trustee and the Company to protect the Company, the Trustee, any Paying Agent, any Registrar, and any Conversion Agent from any loss that any of them may suffer if a Note is replaced. The Company and the Trustee may charge for their expenses in replacing a Note, including reasonable fees of counsel.
Every replacement Note is an additional obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
Section 2.08 — Outstanding Notes
The Notes outstanding at any time are all the Notes that have been authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation, those reductions in the interest of a Global Note effected in accordance with the provisions hereof, and those described in this Section as not outstanding. Except as set forth in Section 2.09, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.
If the Paying Agent (other than the Company) holds, on a Redemption Date or a Maturity Date or a Fundamental Change Repurchase Date, money or securities sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.
Section 2.09 — Treasury Notes
In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver, or consent, Notes owned by the Company or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company shall be considered as though not outstanding, except that, for purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver, or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.
Section 2.10 — Temporary Notes
Until certificated Notes are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Company considers appropriate for temporary Notes. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate certificated Notes in exchange for temporary Notes, without charge to any Holder.
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. The Trustee shall cancel all Notes surrendered for registration of transfer, exchange, payment, conversion, redemption, or repurchase and shall dispose of cancelled Notes in accordance with its customary procedures. The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12 — CUSIP and ISIN Numbers
The Company in issuing the Notes may use "CUSIP" numbers and "ISIN" numbers (if then in general use), and, if so, the Trustee shall use such numbers in notices to Holders as a convenience to Holders; provided, however, 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 as contained in any notice of redemption, repurchase, or conversion 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 or ISIN numbers.
Section 2.13 — Additional Notes
The Company may, from time to time prior to the expiration of the over-allotment option period, without the consent of Holders, issue Additional Notes under this Indenture in an aggregate principal amount not to exceed $37,500,000 in connection with the exercise of the over-allotment option granted to the Initial Purchasers pursuant to the Purchase Agreement. Any Additional Notes so issued shall have the same terms and conditions in all respects as the Notes initially issued on the Closing Date (except for the issue date, issue price, and first Interest Payment Date, if applicable) and shall form a single series with the Notes initially issued on the Closing Date for all purposes under this Indenture, including, without limitation, waivers, amendments, redemptions, repurchases, conversions, and offers to purchase. Additional Notes shall be authenticated by the Trustee upon receipt of a Company Order and an Officers' Certificate and an Opinion of Counsel, in each case in form and substance reasonably satisfactory to the Trustee.
ARTICLE 3
INTEREST
Section 3.01 — Interest Rate and Payment Dates
(a) The Notes shall bear interest at the rate of 2.75% per annum (the "Interest Rate"). Interest on the Notes shall accrue from June 1, 2023 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, and shall be payable semi-annually in arrears on each Interest Payment Date, commencing December 1, 2023, to the Holders of record at the Close of Business on the immediately preceding Record Date.
(b) Interest on the Notes shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Interest shall accrue and be payable until the principal of the Notes is paid, converted, redeemed, or repurchased, as provided herein.
(c) Interest shall cease to accrue on a Note upon its maturity, redemption, repurchase, or conversion unless the Company defaults in the payment of the Maturity Date principal amount, the Optional Redemption Price, or the Fundamental Change Repurchase Price, as the case may be, in which case interest shall continue to accrue (including during any grace period applicable thereto) on the overdue amount at the rate set forth in Section 3.03 from the required payment date until the actual payment date.
Section 3.02 — Record Dates
The regular Record Dates for the payment of interest on the Notes shall be May 15 and November 15 (whether or not a Business Day) immediately preceding the relevant Interest Payment Date. Interest shall be payable to the Person in whose name a Note (or one or more predecessor Notes) is registered at the Close of Business on the applicable Record Date.
Section 3.03 — Interest on Overdue Amounts
Any Defaulted Amounts shall bear interest at the Interest Rate of 2.75% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months) from, and including, the relevant payment date to, but excluding, the date on which such Defaulted Amounts are paid. Interest on Defaulted Amounts shall be payable on demand.
Section 3.04 — Payment of Interest at Maturity and Other Dates
If the Maturity Date, any Optional Redemption Date, or any Fundamental Change Repurchase Date falls on a day that is not a Business Day, the required payment of principal, the Optional Redemption Price, or the Fundamental Change Repurchase Price, as the case may be (together with any accrued and unpaid interest), shall be made on the next succeeding Business Day, and no additional interest shall accrue as a result of such delay in payment.
ARTICLE 4
SATISFACTION AND DISCHARGE
Section 4.01 — Satisfaction and Discharge
This Indenture shall be discharged and shall cease to be of further effect as to all Notes issued hereunder when:
(a) either:
(i) all Notes that have been authenticated (except lost, stolen, or destroyed Notes that have been replaced or paid and Notes for whose payment money has been deposited in trust and thereafter repaid to the Company, as provided herein) have been delivered to the Trustee for cancellation; or
(ii) all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise, or will become due and payable within one year, and the Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, in an amount sufficient, without consideration of any reinvestment of such funds, to pay and discharge the entire indebtedness on such Notes not delivered to the Trustee for cancellation for principal, accrued and unpaid interest, and any Fundamental Change Repurchase Price or Optional Redemption Price, as applicable, to the date of deposit or to the Maturity Date, the Fundamental Change Repurchase Date, or the Optional Redemption Date, as applicable;
(b) no Default or Event of Default shall have occurred and be continuing on the date of the deposit referred to in clause (a)(ii) above or shall occur as a result of such deposit, and such deposit shall not result in a breach or violation of, or constitute a default under, any other instrument to which the Company is a party or by which the Company is bound;
(c) the Company has paid or caused to be paid all sums payable by it under this Indenture, including all fees, expenses, and indemnity amounts payable to the Trustee; and
(d) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent to the satisfaction and discharge of this Indenture have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been deposited with the Trustee pursuant to clause (a)(ii) above, the provisions of Sections 2.04, 2.05, 4.02, 7.06, 7.07, and 17.01 through 17.12 shall survive. In addition, nothing in this Section 4.01 shall be deemed to discharge those provisions of this Indenture that, by their terms, survive the satisfaction and discharge hereof.
Section 4.02 — Application of Trust Money
Subject to Section 2.04(c), all money deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by the Trustee, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to the Persons entitled thereto, of the principal of and accrued and unpaid interest on the Notes for whose benefit such money has been deposited with the Trustee.
ARTICLE 5
REMEDIES
Section 5.01 — Rights of Holders if Event of Default Occurs
(a) If an Event of Default specified in Section 6.01(a), (b), (c), (d), (e), (f), or (h) occurs and is continuing, the Trustee by notice to the Company, or the Required Holders by notice to the Company and the Trustee, may, and the Trustee at the written request of the Required Holders shall, declare the principal of and accrued and unpaid interest on all the Notes to be due and payable immediately. Upon such declaration, such principal and accrued and unpaid interest shall be due and payable immediately.
(b) Notwithstanding the foregoing, if an Event of Default specified in Section 6.01(g) occurs with respect to the Company, the principal of and accrued and unpaid interest on all the Notes shall automatically become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
(c) The Required Holders may, by notice to the Trustee, on behalf of all Holders, rescind an acceleration of the Notes and its consequences if:
(i) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction;
(ii) all existing Events of Default (other than the nonpayment of principal of or interest on the Notes that has become due solely because of the acceleration) have been cured or waived; and
(iii) all amounts then due and payable to the Trustee under this Indenture (including fees, expenses, and indemnity) have been paid in full.
No such rescission shall affect any subsequent Default or impair any right consequent thereto.
Section 5.02 — Collection of Indebtedness and Suits for Enforcement by Trustee
(a) The Company covenants that if (i) a Default in the payment of any interest on any Note continues for a period of 30 days, (ii) a Default in the payment of the principal of any Note occurs at its Maturity Date, upon Optional Redemption, upon a Fundamental Change Repurchase, upon acceleration, or otherwise, or (iii) any other Event of Default occurs and is continuing, the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders, the whole amount then due and payable on the Notes for principal, interest, and any other amounts due, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements, and advances of the Trustee, its agents, and counsel.
(b) If the Company fails 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.
(c) If an Event of Default occurs and is continuing, the Trustee may in its discretion, and at the direction of the Required Holders shall, file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements, and advances of the Trustee, its agents, and counsel) and of the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors, or its property.
Section 5.03 — Trustee May Enforce Claims Without Possession of Notes
All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name and as trustee of an express trust. 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 respect of which such judgment has been recovered.
Section 5.04 — Application of Money Collected
Any money collected by the Trustee pursuant to this Article 5 shall be applied in the following order, at the date or dates fixed by the Trustee and, in the case of the distribution of such money on account of principal of or interest on the Notes, upon presentation of the Notes and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee and any predecessor trustee under Section 7.06, including fees, expenses, indemnity, and any other amounts;
Second: To the payment of the amounts then due and unpaid for principal of and interest on the Notes in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Notes for principal and interest, respectively; and
Third: To the Company or as a court of competent jurisdiction may direct, the balance, if any.
Section 5.05 — Rights and Remedies Cumulative
Except as otherwise provided in the last sentence of Section 5.10, the rights and remedies of the Trustee and the Holders under this Indenture are cumulative and in addition to any other rights and remedies provided by law, equity, or otherwise. No exercise of any right or remedy shall preclude any other right or remedy hereunder or otherwise available.
Section 5.06 — Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder in exercising any right or remedy accruing upon an Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article 5 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 5.07 — Control by Holders
The Required Holders 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; provided, however, that:
(a) such direction shall not be in conflict with any rule of law or with this Indenture;
(b) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction; and
(c) subject to Section 7.01, the Trustee shall not be required to follow any direction if the Trustee determines in good faith that the action or proceeding so directed may not lawfully be taken, would involve the Trustee in personal liability, or would be unduly prejudicial to the Holders of the Notes not joining in such direction.
Section 5.08 — Limitation on Suits
(a) No Holder shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder unless:
(i) such Holder has previously given the Trustee written notice of a continuing Event of Default;
(ii) Holders of at least 25% in aggregate principal amount of the then outstanding Notes shall have made written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders have provided to the Trustee such security or indemnity as the Trustee may reasonably require against the costs, expenses, and liabilities to be incurred in compliance with such request;
(iv) the Trustee does not comply with the request within 60 days after receipt of the request and the provision of such security or indemnity; and
(v) during such 60-day period, the Required Holders have not given the Trustee a direction inconsistent with such request.
(b) A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).
Section 5.09 — Rights of Holders to Receive Payment
Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of the principal of and interest on such Holder's Notes on or after the respective due dates expressed therein (or, in the case of Optional Redemption, on or after the Optional Redemption Date, or in the case of a Fundamental Change Repurchase, on or after the Fundamental Change Repurchase Date), or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of each such Holder, consistent with Section 316(b) of the TIA.
Section 5.10 — Waiver of Past Defaults
The Required Holders may, on behalf of all Holders, waive any existing Default or Event of Default and its consequences under this Indenture except a Default or Event of Default (a) in the payment of the principal of or interest on any Note, including the Fundamental Change Repurchase Price or the Optional Redemption Price, or (b) in respect of a provision that under Section 9.02 cannot be modified or amended without the consent of each Holder of an outstanding Note affected. Upon any such waiver, 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 shall extend to any subsequent or other Default or Event of Default or impair any consequent right.
ARTICLE 6
EVENTS OF DEFAULT; NOTICE
Section 6.01 — Events of Default
An "Event of Default" means any one of the following events:
(a) failure to pay any interest on any Note when due and payable, and such failure continues for a period of 30 days;
(b) failure to pay any principal of any Note when due and payable, whether at maturity, upon redemption, upon required repurchase, upon acceleration, or otherwise;
(c) failure by the Company to comply with the Company's obligation to convert the Notes in accordance with Article 14 upon exercise of a Holder's conversion right (including, without limitation, the Company's obligation to deliver the shares of Common Stock, cash, or combination of cash and shares of Common Stock, as applicable, together with cash in lieu of any fractional share, as required by Article 14), and such failure continues for a period of five (5) Business Days after written notice thereof from the Trustee or from Holders of at least 25% in aggregate principal amount of the Notes then outstanding;
(d) failure by the Company to issue the Fundamental Change Company Notice when due in accordance with Section 15.02 or to issue the Redemption Notice when due in accordance with Section 16.02;
(e) failure by the Company to comply with any other agreement contained in the Notes or this Indenture (other than a failure that is specifically dealt with in clauses (a), (b), (c), or (d) above), and such failure continues for a period of 60 days after the date on which written notice of such failure, requiring the Company to remedy the same, shall have been given (x) to the Company by the Trustee or (y) to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Notes then outstanding;
(f) default by the Company or any Significant Subsidiary in (i) the payment at final maturity (after giving effect to any applicable grace period) of principal of or interest on any indebtedness for money borrowed in an aggregate amount exceeding $25,000,000 (or the foreign currency equivalent thereof), or (ii) the acceleration of any such indebtedness of the Company or any Significant Subsidiary with an aggregate principal amount exceeding $25,000,000 (or the foreign currency equivalent thereof), and in each case, such default or acceleration is not cured, waived, or rescinded within 30 days after written notice thereof to the Company from the Trustee or to the Company and the Trustee from the Required Holders;
(g) the Company or any Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it in an involuntary case or proceeding;
(iii) consents to the appointment of a custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors;
(v) files a petition in bankruptcy or answer or consent seeking reorganization or relief; or
(vi) consents to the filing of such a petition or to the appointment of or taking possession by a custodian;
or an order for relief shall be entered in an involuntary case or proceeding against the Company or any Significant Subsidiary, or a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (A) is for relief against the Company or any Significant Subsidiary in an involuntary case or proceeding, (B) appoints a custodian of the Company or any Significant Subsidiary or for all or substantially all of the property of the Company or any Significant Subsidiary, or (C) orders the liquidation of the Company or any Significant Subsidiary, and in the case of any involuntary case or proceeding, such order or decree remains unstayed and in effect for 60 consecutive days. As used herein, "Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors; and
(h) the entry by a court of competent jurisdiction of one or more final judgments, orders, or decrees against the Company or any Significant Subsidiary for the payment of money in an aggregate amount in excess of $25,000,000 (or the foreign currency equivalent thereof) (excluding any amounts covered by insurance to the extent the insurer has been notified of such judgment, order, or decree and has not denied coverage with respect thereto), and such judgment, order, or decree shall not have been paid, vacated, discharged, stayed, or bonded pending appeal within 60 days from the entry thereof.
Section 6.02 — Acceleration
(a) If an Event of Default specified in Section 6.01(a), (b), (c), (d), (e), (f), or (h) occurs and is continuing, then and in each such case, the Trustee, by notice to the Company, or the Required