Exhibit 4.1

 

EXECUTION VERSION

 


 



FINISAR CORPORATION

 

and

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee

 




 

INDENTURE

 

Dated as of

 

December 21, 2016

 




 

0.50% Convertible Senior Notes due 2036


 



 











 

TABLE OF CONTENTS

 




 

	
ARTICLE 1   Definitions
    	
1
    
	
 
    	
 
    	
 
    
	
Section 1.01
    	
Definitions
    	
1
    
	
 
    	
 
    
	
ARTICLE 2   Issue, Description, Execution, Registration and Exchange of Securities
    	
10
    
	
 
    	
 
    	
 
    
	
Section 2.01
    	
Designation Amount and Issue of   Securities
    	
10
    
	
Section 2.02
    	
Form of Securities
    	
11
    
	
Section 2.03
    	
Date and Denomination of   Securities; Payments of Interest
    	
11
    
	
Section 2.04
    	
Execution of Securities
    	
13
    
	
Section 2.05
    	
Exchange and Registration of   Transfer of Securities; Restrictions on Transfer
    	
14
    
	
Section 2.06
    	
Mutilated, Destroyed, Lost or   Stolen Securities
    	
20
    
	
Section 2.07
    	
Temporary Securities
    	
21
    
	
Section 2.08
    	
Cancellation of Securities
    	
22
    
	
Section 2.09
    	
CUSIP Numbers
    	
22
    
	
Section 2.10
    	
Additional Securities;   Repurchases
    	
22
    
	
 
    	
 
    
	
ARTICLE 3   Particular Covenants of the Company
    	
23
    
	
 
    	
 
    	
 
    
	
Section 3.01
    	
Payment of Principal, Premium   and Interest
    	
23
    
	
Section 3.02
    	
Maintenance of Office or Agency
    	
23
    
	
Section 3.03
    	
Appointments to Fill Vacancies   in Trustee’s Office
    	
23
    
	
Section 3.04
    	
Provisions as to Paying Agent
    	
23
    
	
Section 3.05
    	
Existence
    	
24
    
	
Section 3.06
    	
Payment of Taxes and Other   Claims
    	
24
    
	
Section 3.07
    	
Stay, Extension and Usury Laws
    	
25
    
	
Section 3.08
    	
Compliance Certificate
    	
25
    
	
Section 3.09
    	
Rule 144A Information   Requirement; Reports
    	
25
    
	
 
    	
 
    
	
ARTICLE 4   Securityholders’ Lists and Reports by the Company and the Trustee
    	
27
    
	
 
    	
 
    	
 
    
	
Section 4.01
    	
Securityholders’ Lists
    	
27
    
	
Section 4.02
    	
Preservation and Disclosure of   Lists
    	
28
    
	
 
    	
 
    
	
ARTICLE 5   Remedies of the Trustee and Securityholders on an Event of Default
    	
28
    
	
 
    	
 
    	
 
    
	
Section 5.01
    	
Events of Default
    	
28
    
	
Section 5.02
    	
Payments of Securities on   Default; Suit Therefor
    	
31
    
	
Section 5.03
    	
Additional Interest
    	
32
    


 











 

	
Section 5.04
    	
Application of Monies Collected   By Trustee
    	
33
    
	
Section 5.05
    	
Proceedings by Securityholders
    	
33
    
	
Section 5.06
    	
Proceedings by Trustee
    	
34
    
	
Section 5.07
    	
Remedies Cumulative and   Continuing
    	
34
    
	
Section 5.08
    	
Direction of Proceedings and   Waiver of Defaults by Majority of Securityholders
    	
35
    
	
Section 5.09
    	
Notice of Defaults
    	
35
    
	
Section 5.10
    	
Undertaking to Pay Costs
    	
35
    
	
 
    	
 
    
	
ARTICLE 6   The Trustee
    	
36
    
	
 
    	
 
    	
 
    
	
Section 6.01
    	
Duties and Responsibilities of   Trustee
    	
36
    
	
Section 6.02
    	
Reliance on Documents,   Opinions, Etc.
    	
37
    
	
Section 6.03
    	
No Responsibility for Recitals,   Etc.
    	
39
    
	
Section 6.04
    	
Trustee, Paying Agents,   Conversion Agents or Security Registrar May Own Securities
    	
39
    
	
Section 6.05
    	
Monies to Be Held in Trust
    	
39
    
	
Section 6.06
    	
Compensation and Expenses of   Trustee; Indemnity for Trustee
    	
39
    
	
Section 6.07
    	
Officers’ Certificate as   Evidence
    	
40
    
	
Section 6.08
    	
Conflicting Interests of   Trustee
    	
40
    
	
Section 6.09
    	
Eligibility of Trustee
    	
40
    
	
Section 6.10
    	
Resignation or Removal of   Trustee
    	
40
    
	
Section 6.11
    	
Acceptance by Successor Trustee
    	
42
    
	
Section 6.12
    	
Succession by Merger
    	
42
    
	
Section 6.13
    	
[Reserved.]
    	
43
    
	
Section 6.14
    	
Trustee’s Application for   Instructions from the Company
    	
43
    
	
Section 6.15
    	
Force Majeure
    	
43
    
	
 
    	
 
    
	
ARTICLE 7   The Securityholders
    	
43
    
	
 
    	
 
    	
 
    
	
Section 7.01
    	
Action by Securityholders
    	
43
    
	
Section 7.02
    	
Proof of Execution by   Securityholders
    	
44
    
	
Section 7.03
    	
Who are Deemed Absolute Owners
    	
44
    
	
Section 7.04
    	
Company-owned Securities   Disregarded
    	
44
    
	
Section 7.05
    	
Revocation of Consents; Future   Holders Bound
    	
45
    
	
 
    	
 
    
	
ARTICLE 8   Meetings of Securityholders
    	
45
    
	
 
    	
 
    	
 
    
	
Section 8.01
    	
Purpose of Meetings
    	
45
    


 











 

	
Section 8.02
    	
Call of Meetings by Trustee
    	
45
    
	
Section 8.03
    	
Call of Meetings by Company or   Securityholders
    	
46
    
	
Section 8.04
    	
Qualifications for Voting
    	
46
    
	
Section 8.05
    	
Regulations
    	
46
    
	
Section 8.06
    	
Voting
    	
47
    
	
Section 8.07
    	
No Delay of Rights by Meeting
    	
47
    
	
 
    	
 
    
	
ARTICLE 9   Supplemental Indentures
    	
47
    
	
 
    	
 
    	
 
    
	
Section 9.01
    	
Supplemental Indentures Without   Consent of Securityholders
    	
47
    
	
Section 9.02
    	
Supplemental Indenture with   Consent of Securityholders
    	
48
    
	
Section 9.03
    	
Effect of Supplemental Indenture
    	
49
    
	
Section 9.04
    	
Notation on Securities
    	
50
    
	
Section 9.05
    	
Evidence of Compliance of   Supplemental Indenture to be Furnished to Trustee
    	
50
    
	
 
    	
 
    
	
ARTICLE 10   Consolidation, Merger, Sale, Conveyance and Lease
    	
50
    
	
 
    	
 
    	
 
    
	
Section 10.01
    	
Company May Consolidate on   Certain Terms
    	
50
    
	
Section 10.02
    	
Successor to be Substituted
    	
50
    
	
Section 10.03
    	
Officers’ Certificate and   Opinion of Counsel to be Given to Trustee
    	
51
    
	
 
    	
 
    
	
ARTICLE 11   Satisfaction and Discharge of Indenture
    	
51
    
	
 
    	
 
    	
 
    
	
Section 11.01
    	
Discharge of Indenture
    	
51
    
	
Section 11.02
    	
Deposited Monies to be Held in   Trust by Trustee
    	
52
    
	
Section 11.03
    	
Paying Agent to Repay Monies   Held
    	
52
    
	
Section 11.04
    	
Return of Unclaimed Monies
    	
52
    
	
Section 11.05
    	
Reinstatement
    	
52
    
	
 
    	
 
    
	
ARTICLE 12   Immunity of Incorporators, Stockholders, Officers and Directors
    	
53
    
	
 
    	
 
    	
 
    
	
Section 12.01
    	
Indenture and Securities Solely   Corporate Obligations
    	
53
    
	
 
    	
 
    
	
ARTICLE 13   General Provisions
    	
53
    
	
 
    	
 
    	
 
    
	
Section 13.01
    	
Provisions Binding on Company’s   Successors
    	
53
    
	
Section 13.02
    	
Official Acts by Successor Corporation
    	
53
    
	
Section 13.03
    	
Addresses for Notices, Etc.
    	
53
    
	
Section 13.04
    	
Governing Law
    	
54
    
	
Section 13.05
    	
Evidence of Compliance with   Conditions Precedent, Certificates to Trustee
    	
54
    


 











 

	
Section 13.06
    	
Legal Holidays
    	
54
    
	
Section 13.07
    	
[Reserved.]
    	
54
    
	
Section 13.08
    	
No Security Interest Created
    	
54
    
	
Section 13.09
    	
Benefits of Indenture
    	
54
    
	
Section 13.10
    	
Table of Contents, Headings,   Etc.
    	
54
    
	
Section 13.11
    	
Authenticating Agent
    	
55
    
	
Section 13.12
    	
Execution In Counterparts
    	
55
    
	
Section 13.13
    	
Severability
    	
56
    
	
Section 13.14
    	
U.S.A. Patriot Act
    	
56
    
	
Section 13.15
    	
Waiver of Right to Trial by   Jury
    	
56
    
	
 
    	
 
    
	
ARTICLE 14   Redemption or Repurchase Of Securities
    	
56
    
	
 
    	
 
    	
 
    
	
Section 14.01
    	
Redemption of Securities
    	
56
    
	
Section 14.02
    	
Notice of Optional Redemption; Selection   of Securities
    	
56
    
	
Section 14.03
    	
Payment of Securities Called   For Redemption by the Company
    	
58
    
	
Section 14.04
    	
Conversion Arrangement on Call   for Redemption
    	
59
    
	
Section 14.05
    	
Repurchase at Option of   Securityholders upon a Fundamental Change
    	
59
    
	
Section 14.06
    	
Securities Repurchased in Part
    	
62
    
	
Section 14.07
    	
Repayment to the Company
    	
62
    
	
Section 14.08
    	
Repurchase of Securities at   Option of the Holder on Specified Dates
    	
63
    
	
 
    	
 
    
	
ARTICLE 15   Conversion of Securities
    	
66
    
	
 
    	
 
    	
 
    
	
Section 15.01
    	
Conversion Privilege
    	
66
    
	
Section 15.02
    	
Conversion Procedure;   Settlement Upon Conversion
    	
68
    
	
Section 15.03
    	
Increased Conversion Rate   Applicable to Certain Securities Surrendered in Connection with Make-Whole   Fundamental Changes
    	
72
    
	
Section 15.04
    	
Adjustment of Conversion Rate
    	
74
    
	
Section 15.05
    	
Adjustments of Prices
    	
84
    
	
Section 15.06
    	
Shares to Be Fully Paid
    	
84
    
	
Section 15.07
    	
Effect of Recapitalizations,   Reclassifications and Changes of the Common Stock
    	
84
    
	
Section 15.08
    	
Certain Covenants
    	
86
    
	
Section 15.09
    	
Responsibility of Trustee
    	
86
    


 











 

	
Section 15.10
    	
Notice to Holders Prior to   Certain Actions
    	
87
    
	
Section 15.11
    	
Stockholder Rights Plans
    	
88
    
	
 
    	
 
    
	
Exhibit A   — Form of Security
    	
 
    


 












 

INDENTURE

 

INDENTURE, dated as of December 21, 2016, between Finisar Corporation, a Delaware corporation (hereinafter called the “Company”), having its principal office at 1389 Moffett Park Drive, Sunnyvale, CA 94089-1134, and Wells Fargo Bank, National Association, a national banking association, as trustee hereunder (hereinafter called the “Trustee”).

 

RECITALS OF THE COMPANY

 

WHEREAS, for its lawful corporate purposes, the Company has duly authorized the creation and issue of its 0.50% Convertible Senior Notes due 2036 (the “Securities”) of the tenor and amount hereinafter set forth and, to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Indenture; and

 

WHEREAS, all acts and things necessary to make the Securities, when executed by the Company and authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in this Indenture provided, the valid, binding and legal obligations of the Company, and to make this Indenture a valid and legally binding agreement in accordance with its terms, have been done and performed, and the execution of this Indenture and the issue hereunder of the Securities have in all respects been duly authorized,

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

That in order to declare the terms and conditions upon which the Securities are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the purchase and acceptance of the Securities by the holders thereof, the Company covenants and agrees with the Trustee for the equal and proportionate benefit of the respective holders from time to time of the Securities (except as otherwise provided below), as follows:

 

ARTICLE 1
 DEFINITIONS

 

Section 1.01                             Definitions.  The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01.  The words “herein”, “hereof”, “hereunder” and words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other Subdivision.  The terms defined in this Article 1 include the plural as well as the singular.

 

“Additional Interest” means all amounts, if any, pursuant to Section 3.09(d), Section 3.09(e) and Section 5.03, as applicable.

 

“Additional Shares” has the meaning specified in Section 15.03.

 

“Agent Members” has the meaning specified in Section 2.05(a).

 











 

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

 

“Bid Solicitation Agent” means the Person appointed by the Company to solicit bids for the Trading Price of the Securities in accordance with Section 15.01(a)(i).  The Trustee shall initially be the Bid Solicitation Agent.

 

“Board of Directors” means the Board of Directors of the Company or a committee of such Board duly authorized to act for it hereunder.

 

“Business Day” means any day except a Saturday, Sunday or any other day on which The Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.

 

“Capital Stock” means, for any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock issued by that entity.

 

“Cash” or “cash” means such coin or currency of the United States as at any time of payment is legal tender for the payment of public and private debts.

 

“Cash Settlement” has the meaning specified in Section 15.02(a).

 

“Change in Control” means the occurrence of any of the following transactions:

 

(i)                                     a “person” or “group” within the meaning of Section 13(d)(3) and 14(d) of the Exchange Act (including any group acting for the purpose of acquiring, holding or disposing of securities within the meaning or Rule 13-d-5(b)(1) under the Exchange Act) files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act (except that a Person will be deemed to have beneficial ownership of all shares of Capital Stock that Person has the right to acquire irrespective of whether that right is exercisable immediately or only after the passage of time), of Common Stock representing more than fifty percent (50%) of the voting power of the Common Stock entitled to vote generally in the election of the Board of Directors;

 

(ii)                                  a consolidation, merger or binding share exchange (other than any such transaction (a) that does not result in any reclassification, conversion, exchange or cancellation of outstanding Common Stock, and (b) pursuant to which holders of the Common Stock immediately before the transaction have the entitlement to exercise, directly or indirectly, fifty percent (50%) or more of the total voting power of all series of capital stock entitled to vote generally in elections of the Board of Directors of the continuing or surviving or successor Person immediately after giving effect to such issuance), or any conveyance, transfer, sale, lease

 

2











 

or other disposition of all or substantially all of our properties and assets to another Person, other than one of our wholly owned subsidiaries; or

 

(iii)                               the Company’s stockholders approve any plan or proposal for the Company’s liquidation.

 

Notwithstanding the foregoing, in the case of a consolidation or merger, it will not constitute a Change in Control if at least ninety percent (90%) of the consideration for the Common Stock (excluding cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in the consolidation or merger constituting the Change in Control consists of securities traded on a United States national securities exchange, or which will be so traded when issued or exchanged in connection with the Change in Control, and as a result of such consolidation or merger the securities become convertible solely into such securities.

 

“Clause A Distribution” has the meaning specified in Section 15.04(c).

 

“Clause B Distribution” has the meaning specified in Section 15.04(c).

 

“Clause C Distribution” has the meaning specified in Section 15.04(c).

 

“close of business” means 5:00 p.m. (New York City time).

 

“Combination Settlement” has the meaning specified in Section 15.02(a).

 

“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

“Common Stock” means any shares of any class of the Company which has no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and that is not subject to redemption by the Company.  Subject to the provisions of Section 15.07, however, shares issuable on conversion of Securities shall include only shares of the class designated as Common Stock at the date of this Indenture (namely, the common stock of the Company, $0.001 par value) or shares of any class or classes resulting from any reclassification or reclassifications thereof and that have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and that are not subject to redemption by the Company; provided that if at any time there shall be more than one such resulting class, the shares of each such class then so issuable on conversion shall be substantially in the proportion that the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications.

 

“Company” means the corporation named as the “Company” in the preamble to this Indenture, and, subject to the provisions of Article 10 and Section 15.07, shall include its successors and assigns.

 

3











 

“Company Order” has the meaning specified in Section 2.01.

 

“Conversion Agent” has the meaning specified in Section 3.02.

 

“Conversion Date” means the Business Day on which the holder satisfies all of the requirements set forth in Section 15.02.

 

“Conversion Obligation” has the meaning specified in Section 15.01.

 

“Conversion Price” per share of Common Stock as of any date shall mean the result obtained by dividing (a) $1,000 by (b) the Conversion Rate as of such date, rounded to the nearest cent.

 

“Conversion Rate” means the rate at which shares of Common Stock shall be delivered upon conversion, which rate shall be initially 22.6388 shares of Common Stock for each $1,000 principal amount of Securities, subject to adjustment pursuant to the provisions of this Indenture.

 

“Corporate Trust Office” or other similar term, means the designated office of the Trustee at which at any particular time its corporate trust business as it relates to this Indenture shall be administered, which office is, at the date as of which this Indenture is dated, located at Wells Fargo Bank, National Association, 150 E. 42nd Street, 40th Floor, New York, NY 10017, Fax No. (917) 260-1593, Attn: Corporate Trust Administration (Finisar).

 

“Custodian” means Wells Fargo Bank, National Association, as custodian for the Depositary with respect to the Securities in global form, or any successor entity thereto.

 

“Daily Conversion Value” means, for each of the twenty (20) consecutive Trading Days during the Observation Period, 5.0% of the product of (a) the Conversion Rate on such Trading Day and (b) the Daily VWAP on such Trading Day.

 

“Daily Measurement Value” means the Specified Dollar Amount (if any), divided by 20.

 

“Daily Settlement Amount” for each of the twenty (20) consecutive Trading Days during the Observation Period, will consist of:

 

(a)                                 cash equal to the lesser of (i) the Daily Measurement Value and (ii) the Daily Conversion Value on such Trading Day; and

 

(b)                                 if the Daily Conversion Value exceeds the Daily Measurement Value, the number of shares of Common Stock equal to (i) the difference between the Daily Conversion Value and the Daily Measurement Value, divided by (ii) the Daily VWAP for such Trading Day.

 

“Defaulted Interest” has the meaning specified in Section 2.03.

 

“Daily VWAP” means, with respect to a Trading Day, the per share volume-weighted average price as displayed on Bloomberg (or any successor service) page “FNSR ‹equity› VWAP”, or any successor page reflecting a change to the ticker symbol associated with the

 

4











 

Common Stock, in respect of the period from 9:30 a.m. to 4:00 p.m., New York City time, on such Trading Day; or, if such price is not available, the market value per share of Common Stock on such Trading Day as determined 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.

 

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

 

“Distributed Property” has the meaning specified in Section 15.04(c).

 

“Effective Date” has the meaning specified in Section 15.03(b), except that, as used in Section 15.04, “Effective Date” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, reflecting the relevant share split or share combination, as applicable.

 

“Event of Default” means any event specified in Section 5.01 as an Event of Default.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time.

 

“Ex-Dividend Date” means, with respect to any distribution on Common Stock, the first day on which the Common Stock trades on the applicable exchange, or in the applicable market, regular way, without the right to receive such distribution.

 

“Fundamental Change” shall mean the occurrence of a Change in Control or a Termination of Trading.

 

“Fundamental Change Expiration Time” has the meaning specified in Section 14.05(b).

 

“Fundamental Change Notice” has the meaning specified in Section 14.05(b).

 

“Fundamental Change Repurchase Date” has the meaning specified in Section 14.05(a).

 

“Fundamental Change Repurchase Right Notice” has the meaning specified in Section 14.05(a).

 

“Global Security” has the meaning specified in Section 2.02.

 

“Indenture” means this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented.

 

5











 

“Interest” means, when used with reference to the Securities, any interest payable under the terms of the Securities, including Additional Interest, if any, payable pursuant to Section 3.09(d), Section 3.09(e) and Section 5.03, as applicable.

 

“Interest Payment Date” means each June 15 and December 15 of each year, beginning on June 15, 2017.

 

“Last Reported Sale Price” of the Common Stock or other Capital 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 such date as reported on the Nasdaq Global Select Market or other principal United States securities exchange on which Common Stock or such Capital Stock is traded or, if the Common Stock or such Capital Stock is not listed for trading on a United States national or regional securities exchange on the relevant date, the “Last Reported Sale Price” of the Common Stock or such Capital Stock will be the last quoted bid price for the Common Stock or such Capital Stock in the over-the-counter market on the relevant date as reported by the OTC Markets Group Inc. or similar organization.  If the Common Stock or such Capital Stock is not so quoted, the “Last Reported Sale Price” of the Common Stock or such Capital Stock will be the average of the mid-point of the last bid and ask prices for the Common Stock or such Capital Stock on the relevant date from each of at least three U.S. nationally recognized independent investment banking firms selected by us for this purpose.  The Last Reported Sale Price shall be determined without reference to extended or after hours trading.

 

“Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental Change (as determined after giving effect to any exceptions to or exclusions from such definition, but without regard to the parenthetical contained in clause (ii) of the definition of Change in Control).

 

“Market Disruption Event” means (i) the failure by the primary U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted for trading to open for trading during its regular trading session or (ii) the occurrence or existence for more than one-half hour period in the aggregate on any Trading Day for the Company’s Common Stock of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in the Company’s Common Stock or in any options, contracts or future contracts relating solely to the Company’s Common Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m. (New York City time) on such day.

 

“Material Subsidiary” means a subsidiary of the Company that is a “significant subsidiary” as defined under Rule 1-02(w) of Regulation S-X under the Exchange Act, provided that in the case of a subsidiary that meets the criteria of clause (3) thereof but not clause (1) or (2) thereof, such subsidiary shall not be a “material subsidiary” unless such subsidiary’s income from continuing operations before income taxes, extraordinary items and cumulative effect of changes in accounting principles exclusive of amounts attributable to any non-controlling interests for the last completed fiscal year prior to the date of such determination exceeds $5,000,000.

 

6











 

“Maturity Date” means December 15, 2036.

 

“Measurement Period” has the meaning specified in Section 15.01(a).

 

“Merger Event” has the meaning specified in Section 15.07(a).

 

“Notice of Conversion” has the meaning specified in Section 15.02(b).

 

“Observation Period” with respect to any Security surrendered for conversion means: (i) in the case of a conversion of a Security called for redemption pursuant to Section 14.01, the twenty (20) consecutive Trading Day period beginning on, and including, the twenty-second (22nd) scheduled Trading Day prior to applicable redemption date; (ii) except as addressed by clause (i) hereof, if the relevant Conversion Date occurs prior to June 15, 2036, the twenty (20) consecutive Trading Day period beginning on, and including, the second Trading Day immediately succeeding such Conversion Date; and (iii) except as addressed by clause (i) hereof, if the relevant Conversion Date occurs during the period from, and including, June 15, 2036 to the close of business on the second scheduled Trading Day immediately preceding the Maturity Date, the twenty (20) consecutive Trading Days beginning on, and including, the twenty-second (22nd) scheduled trading day immediately preceding the Maturity Date.

 

“Offering Memorandum” means the Offering Memorandum, dated December 16, 2016, relating to the Securities.

 

“Officer” means, with respect to the Company, the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, any Vice President (whether or not designated by a number or numbers or word or words added before or after the title “Vice President”), the Treasurer, any Assistant Treasurer, the Secretary and any Assistant Secretary.

 

“Officers’ Certificate”, when used with respect to the Company, means a certificate signed by the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer or any Vice President (whether or not designated by a number or numbers or word or words added before or after the title “Vice President”) and the Treasurer or the Secretary.

 

“open of business” means 9:00 a.m. (New York City time).

 

“Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, which opinion shall be reasonably acceptable to the Trustee.

 

“outstanding”, when used with reference to Securities and subject to the provisions of Section 7.04, means, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:

 

(a)                                 Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;

 

(b)                                 Securities, or portions thereof, (i) for the redemption of which monies in the necessary amount shall have been deposited in trust with the Trustee or with any Paying Agent

 

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(other than the Company) or (ii) that shall have been otherwise defeased in accordance with Article 11;

 

(c)                                  Securities in lieu of which, or in substitution for which, other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.06; and

 

(d)                                 Securities converted into either Common Stock, cash, or a combination of cash and Common Stock pursuant to Article 15 and Securities deemed not outstanding pursuant to Article 14.

 

“Paying Agent” has the meaning specified in Section 3.02.

 

“Person” means a corporation, an association, a partnership, a limited liability company, an individual, a joint venture, a joint stock company, a trust, an unincorporated organization or a government or an agency or a political subdivision thereof.

 

“Physical Settlement” has the meaning specified in Section 15.02(a).

 

“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security, and, for the purposes of this definition, any Security authenticated and delivered under Section 2.06 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security that it replaces.

 

“Reference Property” has the meaning specified in Section 15.07(a).

 

“Resale Restriction Termination Date” has the meaning specified in Section 2.05(b).

 

“Responsible Officer” shall mean, when used with respect to the Trustee, any officer in the Corporate Trust Office of the Trustee with direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such person’s knowledge of and familiarity with the particular subject.

 

“Restricted Security” has the meaning specified in Section 2.05(b).

 

“Repurchase Date” has the meaning specified in Section 14.08(a).

 

“Repurchase Date Notice” has the meaning specified in Section 14.08(b).

 

“Repurchase Price” has the meaning specified in Section 14.08(a).

 

“Rule 144” means Rule 144 as promulgated under the Securities Act.

 

“Rule 144A” means Rule 144A as promulgated under the Securities Act.

 

“Scheduled Trading Day” means a day that is scheduled to be a Trading Day.

 

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“Securities” has the meaning specified in the first paragraph of the recitals of this Indenture.

 

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

 

“Security Register” has the meaning specified in Section 2.05.

 

“Security Registrar” has the meaning specified in Section 2.05.

 

“Securityholder” or “holder” as applied to any Security, or other similar terms, means any Person in whose name at the time a particular Security is registered on the Security Registrar’s books.

 

“Settlement Amount” has the meaning specified in Section 15.02(a).

 

“Settlement Method” means, with respect to any conversion of Securities, Physical Settlement, Cash Settlement or Combination Settlement, as elected (or deemed to have been elected) by the Company.

 

“Settlement Notice” has the meaning specified in Section 15.02(a).

 

“Specified Dollar Amount” means the maximum cash amount per $1,000 principal amount of Securities to be received upon conversion as specified in the Settlement Notice related to any converted Securities.

 

“Spin-Off” has the meaning specified in Section 15.04(c).

 

“Stock Price” has the meaning specified in Section 15.03(b).

 

“Subsidiary” means, with respect to any Person, (i) any corporation, association or other business entity of which more than fifty-percent (50%) of the total voting power of shares of capital stock or other equity interest entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of that Person (or a combination thereof) and (ii) any partnership (a) the sole general partner or managing general partner of which is such Person or a subsidiary of such Person or (b) the only general partners of which are such Person or of one or more subsidiaries of such Person (or any combination thereof).

 

“Termination of Trading” shall be deemed to have occurred if the Common Stock, or other securities into which the Securities are then convertible, are not listed for trading on a U.S. national securities exchange with electronically disseminated quotes, except as a result of a merger involving the Company or a tender offer or exchange offer for the Common Stock, or other securities into which the Securities are then convertible.

 

“Trading Day” means a day during which (i) trading in the Common Stock generally occurs, (ii) there is no Market Disruption Event and (iii) a Last Reported Sale Price for the

 

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Common Stock (other than a Last Reported Sale Price referred to in the second sentence of the definition thereof) is available for such day; provided that if the Common Stock is not admitted for trading or quotation on or by any exchange, bureau or other organization referred to in the definition of Last Reported Sale Price (excluding the second sentence of that definition), “Trading Day” will mean any Business Day.

 

“Trading Price” of the Securities on any date of determination means the average of the secondary market bid quotations obtained by the Bid Solicitation Agent for $2,000,000 principal amount of Securities at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers the Company selects for this purpose; provided that if three such bids cannot reasonably be obtained by the Bid Solicitation Agent but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Bid Solicitation Agent, that one bid shall be used.  If the Bid Solicitation Agent cannot reasonably obtain at least one bid for $2,000,000 principal amount of Securities from a nationally recognized securities dealer, then the Trading Price per $1,000 principal amount of Securities will be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate.

 

“transfer” has the meaning specified in Section 2.05(b).

 

“Trigger Event” has the meaning specified in Section 15.04(c).

 

“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at the date of this Indenture; provided that if the Trust Indenture Act of 1939 is amended after the date hereof, the term “Trust Indenture Act” shall mean, to the extent required by such amendment, the Trust Indenture Act of 1939 as so amended.

 

“Trustee” means Wells Fargo Bank, National Association, and its successors and any corporation resulting from or surviving any consolidation or merger to which it or its successors may be a party and any successor trustee at the time serving as successor trustee hereunder.

 

“unit of Reference Property” has the meaning specified in Section 15.07(a).

 

ARTICLE 2
 ISSUE, DESCRIPTION, EXECUTION, REGISTRATION 
 AND EXCHANGE OF SECURITIES

 

Section 2.01                             Designation Amount and Issue of Securities.  The Securities shall be designated as “0.50% Convertible Senior Notes due 2036.”

 

The Trustee shall authenticate and make available for delivery the Securities for original issue upon receipt of a written order or orders of the Company signed by two Officers (a “Company Order”).  The Company Order shall specify the amount of Securities to be authenticated, shall provide that all such Securities will be represented by a restricted Global Security and the date on which each original issue of Securities is to be authenticated.  The aggregate principal amount of Securities outstanding at any time may not exceed $575,000,000, subject to Section 2.06 and except as provided in Section 2.10.

 

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

 

Any of the Securities may have such letters, numbers or other marks of identification and such notations, legends, endorsements or changes as the Officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required by the Custodian, the Depositary or as may be required for the Securities to be tradable on any other market developed for trading of securities pursuant to Rule 144A or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Securities may be listed, or to conform to usage, or to indicate any special limitations or restrictions to which any particular Securities are subject.

 

So long as the Securities are eligible for book-entry settlement with the Depositary, or unless otherwise required by law, or otherwise contemplated by Section 2.05, all of the Securities will be represented by one or more Securities in global form registered in the name of the Depositary or the nominee of the Depositary (a “Global Security”).  The transfer and exchange of beneficial interests in any such Global Security shall be effected through the Depositary in accordance with this Indenture and the applicable procedures of the Depositary.  Except as provided in Section 2.05, beneficial owners of a Global Security shall not be entitled to have certificates registered in their names, will not receive or be entitled to receive physical delivery of certificates in definitive form and will not be considered holders of such Global Security (other than in an enforcement by such owner of a beneficial interest to exchange such beneficial interest for Securities in certificated form).

 

Any Global Security shall represent such principal amount of the outstanding Securities as shall be specified therein and shall provide that it shall represent the aggregate amount of outstanding Securities from time to time endorsed thereon and that the aggregate amount of outstanding Securities represented thereby may from time to time be increased or reduced to reflect redemptions, repurchases, conversions, cancellations, transfers or exchanges permitted hereby or to reflect the increase in the principal amount of the Securities permitted by Section 2.01.  Any endorsement of a Global Security to reflect the amount of any increase or decrease in the amount of outstanding Securities represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in such manner and upon instructions given by the holder of such Global Securities in accordance with this Indenture.  Payment of principal of and Interest and premium, if any, on any Global Security shall be made to the holder of such Security.  The Trustee shall have no liability or responsibility for the action or inaction of the Depositary or other clearing system.

 

Section 2.03                             Date and Denomination of Securities; Payments of Interest.  The Securities shall be issuable in registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof.  Each Security shall be dated the date of its

 

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authentication and shall bear Interest from the date specified on the face of the form of Security attached as Exhibit A hereto.  Interest on the Securities shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

The Person in whose name any Security (or its Predecessor Security) is registered on the Security Register at the close of business on any record date with respect to any interest payment date shall be entitled to receive the Interest payable on such interest payment date, except that the Interest payable upon redemption or repurchase will be payable to the Person to whom principal is payable pursuant to such redemption or repurchase (unless the redemption date or the repurchase date, as the case may be, falls after a record date and on or prior to the corresponding interest payment date, in which case the semi-annual payment of Interest becoming due on such interest payment date shall be payable to the holders of such Securities registered as such on the applicable record date).

 

Notwithstanding the foregoing, if any Security (or portion thereof) is converted into Common Stock during the period after a record date for the payment of Interest to, but excluding, the open of business on the next succeeding interest payment date, holders of such Security at the close of business on the record date shall receive Interest payable on such Security (or portion thereof) on the corresponding interest payment date notwithstanding the conversion.  Such Security (or portion thereof), upon surrender for conversion, shall be accompanied by funds equal to the amount of Interest payable on such Security so converted; provided that no such payment shall be made (i) if the Company has specified a redemption date that is after a record date but on or prior to the next succeeding interest payment date, (ii) if the Company has specified a Fundamental Change Repurchase Date that is after a record date but on or prior to the next succeeding interest payment date or (iii) to the extent of any overdue Interest at the time of conversion with respect to such Security.  Interest shall be payable at the office or agency of the Company maintained by the Company for such purposes in the Borough of Manhattan, City of New York, which shall initially be an office or agency of Wells Fargo Bank, National Association, having an office as of the date of this Indenture at 150 E. 42nd Street, 40th Floor, New York, NY 10017, Fax No. (917) 260-1593, Attn: Corporate Trust Administration (Finisar).  The Company shall pay Interest (i) on any Securities in certificated form by check mailed to the address of the Person entitled thereto as it appears in the Security Register (provided that the holder of Securities with an aggregate principal amount in excess of $5,000,000 shall, at the written election of such holder, be paid by wire transfer of immediately available funds, which written notice shall remain in effect until such Person notifies, in writing, the Security Registrar to the contrary) or (ii) on any Global Security by wire transfer of immediately available funds to the account of the Depositary or its nominee.  The term “record date” with respect to any interest payment date shall mean the June 1 and December 1 preceding the applicable June 15 or December 15 interest payment date, respectively.

 

Notwithstanding the foregoing, any Interest on any Security which is payable, but is not punctually paid or duly provided for, on any June 15 or December 15 (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Securityholder on the relevant record date by virtue of his having been such Securityholder, and such Defaulted Interest shall be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:

 

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(1)                                 The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date of the proposed payment (which shall be not less than twenty-five (25) days after the receipt by the Trustee of such notice, unless the Trustee shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided.  Thereupon the Trustee shall fix a special record date for the payment of such Defaulted Interest which shall be not more than fifteen (15) days and not less than ten (10) days prior to the date of the proposed payment, and not less than ten (10) days after the receipt by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first-class postage prepaid, to each holder at his address as it appears in the Security Register, not less than ten (10) days prior to such special record date.  Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered at the close of business on such special record date and shall no longer be payable pursuant to the following clause (2) of this Section 2.03.

 

(2)                                 The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange or automated quotation system on which the Securities may be listed or designated for issuance, and upon such notice as may be required by such exchange or automated quotation system, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

 

Section 2.04                             Execution of Securities.  The Securities shall be signed in the name and on behalf of the Company by the manual or facsimile signature of its Chairman of the Board, Chief Executive Officer or Chief Financial Officer and attested by the manual or facsimile signature of its Secretary or any of its Assistant Secretaries or any Vice President (whether or not designated by a number or numbers or word or words added before or after the title “Vice President”) or its Treasurer or any of its Assistant Treasurers (which may be printed, engraved or otherwise reproduced thereon, by facsimile or otherwise).  Only such Securities as shall bear thereon a certificate of authentication substantially in the form set forth on the form of Security attached as Exhibit A hereto, manually executed by the Trustee (or an authenticating agent appointed by the Trustee as provided by Section 13.11), shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose.  Such certificate by the Trustee (or such an authenticating agent) upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this Indenture.

 

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In case any Officer who shall have signed any of the Securities shall cease to be such Officer before the Securities so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Securities nevertheless may be authenticated and delivered or disposed of as though the person who signed such Securities had not ceased to be such Officer, and any Security may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Company, although at the date of the execution of this Indenture any such person was not such an Officer.

 

Section 2.05                             Exchange and Registration of Transfer of Securities; Restrictions on Transfer.  The Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office and in any other office or agency of the Company designated pursuant to Section 3.02 being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities.  The Security Register shall be in written form or in any form capable of being converted into written form within a reasonably prompt period of time.  The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided. The Company may appoint one or more co-registrars in accordance with Section 3.02.

 

Upon surrender for registration of transfer of any Security to the Security Registrar or any co-registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.05, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture.

 

Securities may be exchanged for other Securities of any authorized denominations and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at any such office or agency maintained by the Company pursuant to Section 3.02.  Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Securityholder making the exchange is entitled to receive bearing registration numbers not contemporaneously outstanding.

 

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

 

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

 

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

 

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Neither the Company nor the Trustee nor any Security Registrar shall be required to exchange or register a transfer of (a) any Securities or portions thereof for a period of fifteen (15) days next preceding any selection of Securities to be redeemed, (b) any Securities or portions thereof surrendered for conversion pursuant to Article 15 or (c) any Securities or portions thereof tendered for repurchase (and not withdrawn) pursuant to Article 14.

 

(a)                                 The following provisions shall apply only to Global Securities:

 

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

 

(ii)                      Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary or a nominee thereof unless (A) the Depositary (i) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security and a successor depositary has not been appointed by the Company within ninety (90) days or (ii) has ceased to be a clearing agency registered under the Exchange Act and no successor clearing agency has been appointed by the Company within ninety (90) days, (B) an Event of Default has occurred and is continuing or (C) the Company, in its sole discretion, notifies the Trustee in writing that it no longer wishes to have all the Securities represented by Global Securities; provided that beneficial interests in a Global Security may be exchanged for definitive certificated Securities upon request by or on behalf of the Depositary in accordance with customary procedures.  Any Global Security exchanged pursuant to clause (A) or (B) above shall be so exchanged in whole and not in part and any Global Security exchanged pursuant to clause (C) above may be exchanged in whole or from time to time in part as directed by the Company.  Any Security issued in exchange for a Global Security or any portion thereof shall be a Global Security; provided that any such Security so issued that is registered in the name of a Person other than the Depositary or a nominee thereof shall not be a Global Security.

 

(iii)                   Securities issued in exchange for a Global Security or any portion thereof pursuant to clause (ii) above shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Security or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear any legends required hereunder.  Any Global Security to be exchanged in whole shall be surrendered by the Depositary to the Trustee, as Security Registrar.  With regard to any Global Security to be exchanged in part, either such Global Security shall be so surrendered for exchange or, if the Trustee is acting as Custodian for the Depositary or its nominee with respect to such Global Security, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee.  Upon any such surrender or adjustment, the Trustee shall authenticate and make available for

 

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delivery the Security issuable on such exchange to or upon the written order of the Depositary or an authorized representative thereof.

 

(iv)                  In the event of the occurrence of any of the events specified in clause (ii) above, the Company will promptly make available to the Trustee a reasonable supply of certificated Securities in definitive, fully registered form, without interest coupons.

 

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

 

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

 

(b)                                 Every Security that bears or is required under this Section 2.05(b) to bear the legend set forth in this Section 2.05(b) (together with any Common Stock issued upon conversion of the Securities that is required to bear the legend set forth in Section 2.05(c) collectively, the “Restricted Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.05(b) (including those contained in the legend set forth below), unless such restrictions on transfer shall be eliminated or otherwise waived by written consent of the Company, and the holder of each such Restricted Security, by such Securityholder’s acceptance thereof, agrees to be bound by all such restrictions on transfer.  As used in this Section 2.05(b) and Section 2.05(c), the term “transfer” encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.

 

Until the date (the “Resale Restriction Termination Date”) that is the later of (1) the date that is one year after the last date of original issuance of the Securities, or such shorter period of time as permitted by Rule 144 under the Securities Act or any successor provision

 

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thereto, and (2) such later date, if any, as may be required by applicable law, any certificate evidencing such Security (and all securities issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued upon conversion thereof, which shall bear the legend set forth in Section 2.05(c), if applicable) shall bear a legend in substantially the following form (unless such Securities have been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise agreed by the Company in writing, with notice thereof to the Trustee):

 

THE SALE OF THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, PRIOR TO THE RESALE RESTRICTION TERMINATION DATE (AS DEFINED BELOW), THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY MAY NOT BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, EXCEPT:

 

(A)                               TO FINISAR CORPORATION (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF;

 

(B)                               PURSUANT TO, AND IN ACCORDANCE WITH, A REGISTRATION STATEMENT THAT IS EFFECTIVE UNDER THE SECURITIES ACT AT THE TIME OF SUCH TRANSFER;

 

(C)                               TO A PERSON THAT THE HOLDER REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN COMPLIANCE WITH RULE 144A; OR

 

(D)                               UNDER ANY OTHER AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (INCLUDING, IF AVAILABLE, THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT).

 

THE “RESALE RESTRICTION TERMINATION DATE” MEANS THE LATER OF: (1) THE DATE THAT IS ONE YEAR AFTER THE DATE OF LAST ORIGINAL ISSUANCE OF THE SECURITIES (INCLUDING THE LAST DATE OF ISSUANCE OF ADDITIONAL SECURITIES PURSUANT TO THE EXERCISE OF THE INITIAL PURCHASER’S OVER-ALLOTMENT OPTION) OR SUCH SHORTER PERIOD OF TIME PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISIONS THERETO; AND (2) THE DATE ON WHICH WE HAVE INSTRUCTED THE TRUSTEE FOR THE SECURITIES THAT THE FOREGOING RESTRICTIONS WILL NO LONGER APPLY IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE INDENTURE.

 

WITH RESPECT TO ANY TRANSFER PURSUANT TO THE FOREGOING CLAUSE (D) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY

 

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REASONABLY REQUIRE AND MAY RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

In accordance the applicable procedures of the Depositary, any Security (or security issued in exchange or substitution therefor) as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of such Security for exchange to the Security Registrar in accordance with the provisions of this Section 2.05, be exchanged for a new Security or Securities, of like tenor and aggregate principal amount, which shall not bear the restrictive legend required by this Section 2.05(b) and shall not be assigned a restricted CUSIP number.  The Company shall be entitled to instruct the Custodian in writing to so surrender any Global Security as to which such restrictions on transfer shall have expired in accordance with their terms for exchange, and, upon such instruction and in accordance with the applicable procedures of the Depositary, the Custodian shall so surrender such Global Security for exchange; and any new Global Security so exchanged therefor shall not bear the restrictive legend specified in this Section 2.05(b) and shall not be assigned a restricted CUSIP number.  The Company shall promptly notify the Trustee in writing upon the occurrence of the Resale Restriction Termination Date and promptly after a registration statement, if any, with respect to the Securities or any Common Stock issued upon conversion of the Securities has been declared effective under the Securities Act.

 

If the Restricted Security surrendered for exchange is represented by a Global Security bearing the restrictive legend required by this Section 2.05(b), the principal amount of the Global Security so legended shall be reduced by the appropriate principal amount and the principal amount of a Global Security without the restrictive legend required by this Section 2.05(b) shall be increased by an equal principal amount.  If a Global Security without the restrictive legend required by this Section 2.05(b) is not then outstanding, the Company shall execute and the Trustee shall, upon the terms hereof and receipt of a Company Order, authenticate a Global Security without the restrictive legend required by this Section 2.05(b).

 

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

 

THE SALE OF THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, PRIOR TO THE RESALE RESTRICTION TERMINATION DATE (AS

 

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DEFINED BELOW), THIS SECURITY MAY NOT BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, EXCEPT:

 

(A)                               TO FINISAR CORPORATION (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF;

 

(B)                               PURSUANT TO, AND IN ACCORDANCE WITH, A REGISTRATION STATEMENT THAT IS EFFECTIVE UNDER THE SECURITIES ACT AT THE TIME OF SUCH TRANSFER;

 

(C)                               TO A PERSON THAT THE HOLDER REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN COMPLIANCE WITH RULE 144A; OR

 

(D)                               UNDER ANY OTHER AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (INCLUDING, IF AVAILABLE, THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT).

 

THE “RESALE RESTRICTION TERMINATION DATE” MEANS THE LATER OF: (1) THE DATE THAT IS ONE YEAR AFTER THE DATE OF LAST ORIGINAL ISSUANCE OF THE COMPANY’S 0.50% CONVERTIBLE SENIOR NOTES DUE 2036 (INCLUDING THE LAST DATE OF ISSUANCE OF ADDITIONAL SECURITIES PURSUANT TO THE EXERCISE OF THE INITIAL PURCHASER’S OVER-ALLOTMENT OPTION) OR SUCH SHORTER PERIOD OF TIME PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISIONS THERETO; AND (2) THE DATE ON WHICH WE HAVE INSTRUCTED THE TRUSTEE FOR THE SECURITIES THAT THE FOREGOING RESTRICTIONS WILL NO LONGER APPLY IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE INDENTURE GOVERNING THE SECURITIES.

 

WITH RESPECT TO ANY TRANSFER PURSUANT TO THE FOREGOING CLAUSE (D) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, THE COMPANY AND THE COMPANY’S TRANSFER AGENT RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE AND MAY RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

Any such Common Stock as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of the certificates representing such shares of Common Stock for exchange in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for a new certificate or certificates for a like number of shares of Common Stock, which shall not bear the restrictive securities legend required by this Section 2.05(c).

 

(d)                                 Any Security or Common Stock issued upon the conversion of a Security that is purchased or owned by the Company or any Subsidiary thereof may not be resold by the

 

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Company or such Subsidiary unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction which results in such Securities or Common Stock, as the case may be, no longer being “restricted securities” (as defined under Rule 144).

 

(e)                                  The Company shall use its best efforts to prevent any Affiliate who is not a Subsidiary from reselling any Security or Common Stock issued upon the conversion of a Security, except for the resale of such Securities or Common Stock pursuant to an effective registration statement or resales of such Securities or Common Stock to the Company or a Subsidiary.

 

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

 

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

 

Section 2.06                             Mutilated, Destroyed, Lost or Stolen Securities.  In case any Security shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon its written request the Trustee or an authenticating agent appointed by the Trustee shall authenticate and make available for delivery, a new Security, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen.  In every case, the applicant for a substituted Security shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of them harmless for any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.

 

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Following receipt by the Trustee or such authenticating agent, as the case may be, of satisfactory security or indemnity and evidence, as described in the preceding paragraph, the Trustee or such authenticating agent may authenticate any such substituted Security and make available for delivery such Security. Upon the issuance of any substituted Security, the Company may require the payment by the holder of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith.  In case any Security which has matured or is about to mature or has been called for redemption or has been tendered for purchase upon a Fundamental Change or on a Repurchase Date (and not withdrawn) or is to be converted into Common Stock shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment of or convert or authorize the conversion of the same (without surrender thereof except in the case of a mutilated Security), as the case may be, if the applicant for such payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of them harmless for any loss, liability, cost or expense caused by or in connection with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.

 

Every substitute Security issued pursuant to the provisions of this Section 2.06 by virtue of the fact that any Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be found at any time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set forth in) this Indenture equally and proportionately with any and all other Securities duly issued hereunder.  To the extent permitted by law, all Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment or conversion or redemption or repurchase of mutilated, destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment or conversion or redemption or repurchase of negotiable instruments or other securities without their surrender.

 

Section 2.07                             Temporary Securities.  Pending the preparation of Securities in certificated form, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon the written request of the Company, authenticate and deliver temporary Securities (printed or lithographed).  Temporary Securities shall be issuable in any authorized denomination, and substantially in the form of the Securities in certificated form, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Company.  Every such temporary Security shall be executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially the same manner, and with the same effect, as the Securities in certificated form. Without unreasonable delay, the Company will execute and deliver to the Trustee or such authenticating agent Securities in certificated form and thereupon any or all temporary Securities may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 3.02 and the Trustee or such authenticating agent shall authenticate and make available for delivery in exchange for such temporary Securities an equal aggregate principal amount of Securities in certificated form.  Such exchange

 

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shall be made by the Company at its own expense and without any charge therefor.  Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Securities in certificated form authenticated and delivered hereunder.

 

Section 2.08                             Cancellation of Securities.  All Securities surrendered for the purpose of payment, redemption, repurchase, conversion, exchange or registration of transfer shall, if surrendered to the Company or any Paying Agent or any Security Registrar or any Conversion Agent, be surrendered to the Trustee and promptly canceled by it, or, if surrendered to the Trustee, shall be promptly canceled by it, and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture.  The Trustee shall dispose of such canceled Securities in accordance with its customary procedures.  If the Company shall acquire any of the Securities, such acquisition shall not operate as a redemption, repurchase or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.

 

Section 2.09                             CUSIP Numbers.  The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption or repurchases as a convenience to Securityholders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption or a repurchase and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption or repurchase shall not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

 

Section 2.10                             Additional Securities; Repurchases. The Company may, without notice to or the consent of the holders and notwithstanding Section 2.01, reopen this Indenture and issue additional Securities hereunder with the same terms as the Securities initially issued hereunder (other than differences in the issue price and interest accrued prior to the issue date of such additional Securities) in an unlimited aggregate principal amount; provided that if any such additional Securities are not fungible with the Securities initially issued hereunder for U.S. federal income tax purposes, such additional Securities shall have one or more separate CUSIP numbers. The Securities originally issued as of the date hereof and any Additional Securities shall be treated as a single class for all purposes under this Indenture, including waivers, amendments, redemptions, offers to purchase and United States federal tax purposes.  No Additional Securities may be issued if on the issue date therefor any Event of Default has occurred and is continuing.  In addition, the Company may, to the extent permitted by law, and directly or indirectly (regardless of whether such Securities are surrendered to the Company), repurchase Securities in the open market or otherwise, whether by the Company or its Subsidiaries or through a private or public tender or exchange offer or through counterparties to private agreements, including by cash-settled swaps or other derivatives, in each case without notice to holders. The Company shall cause any Securities so repurchased (other than Securities repurchased pursuant to cash-settled swaps or other derivatives) to be surrendered to the Trustee for cancellation in accordance with Section 2.08 and such Securities shall no longer be considered outstanding hereunder upon their repurchase.

 

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ARTICLE 3
 PARTICULAR COVENANTS OF THE COMPANY

 

Section 3.01                             Payment of Principal, Premium and Interest.  The Company will duly and punctually pay or cause to be paid the principal of and premium, if any (including the redemption price upon redemption or the repurchase price upon repurchase, in each case pursuant to Article 14), and Interest, on each of the Securities at the places, at the respective times and in the manner provided herein and in the Securities.

 

Section 3.02                             Maintenance of Office or Agency.  The Company will maintain an office or agency in the Borough of Manhattan, the City of New York, where the Securities may be surrendered for registration of transfer or exchange or for presentation for payment or for redemption or repurchase (“Paying Agent”) or conversion (“Conversion Agent”) and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served.  The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency not designated or appointed by the Trustee.  If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office.

 

The Company may also from time to time designate co-registrars and one or more offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations.  The Company will give prompt written notice of any such designation or rescission and of any change in the location of any such other office or agency. The terms “Paying Agent” and “Conversion Agent” include any such additional or other offices or agencies, as applicable.

 

The Company hereby initially designates the Trustee as Paying Agent, Security Registrar, Custodian and Conversion Agent and the Corporate Trust Office shall be considered as an office or agency of the Company for each of the aforesaid purposes.

 

Section 3.03                             Appointments to Fill Vacancies in Trustee’s Office.  The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so that there shall at all times be a Trustee hereunder.

 

Section 3.04                             Provisions as to Paying Agent.  If the Company shall appoint a Paying Agent other than the Trustee, or if the Trustee shall appoint such a Paying Agent, the Company will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 3.04:

 

(1)                                 that it will hold all sums held by it as such agent for the payment of the principal of and premium, if any, or Interest on the Securities (whether such sums have been paid to it by the Company or by any other obligor on the Securities) in trust for the benefit of the holders of the Securities;

 

(2)                                 that it will give the Trustee notice in writing of any failure by the Company (or by any other obligor on the Securities) to make any payment of the

 

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principal of and premium, if any, or Interest on the Securities when the same shall be due and payable; and

 

(3)                                 that at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the Trustee all sums so held in trust.

 

The Company shall, at least one (1) Business Day prior to each due date of the principal of, premium, if any, or Interest on the Securities, deposit with the Paying Agent a sum (in funds which are immediately available on the due date for such payment) sufficient to pay such principal, premium, if any, or Interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee in writing of any failure to take such action; provided that such deposit shall be received by the Paying Agent no later than 11:00 a.m. New York City time, one (1) Business Day prior to such payment due date.

 

(a)                                 If the Company shall act as its own paying agent, it will, on or before each due date of the principal of, premium, if any, or Interest on the Securities, set aside, segregate and hold in trust for the benefit of the holders of the Securities a sum sufficient to pay such principal, premium, if any, or Interest so becoming due and will promptly notify the Trustee in writing of any failure to take such action and of any failure by the Company (or any other obligor under the Securities) to make any payment of the principal of, premium, if any, or Interest on the Securities when the same shall become due and payable.

 

(b)                                 Anything in this Section 3.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by the Company or any Paying Agent hereunder as required by this Section 3.04, such sums to be held by the Trustee upon the trusts herein contained and upon such payment by the Company or any Paying Agent to the Trustee, the Company or such Paying Agent shall be released from all further liability with respect to such sums.

 

(c)                                  Anything in this Section 3.04 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 3.04 is subject to Sections 11.03 and 11.04.

 

The Trustee shall not be responsible for the actions of any other Paying Agents (including the Company if acting as its own paying agent) and shall have no control of any funds held by such other Paying Agents.

 

Section 3.05                             Existence.  Subject to Article 10, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence and rights (charter and statutory); provided that the Company shall not be required to preserve any such right if the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Securityholders.

 

Section 3.06                             Payment of Taxes and Other Claims.  The Company will pay or discharge, or cause to be paid or discharged, before the same may become delinquent, (i) all taxes, assessments and governmental charges levied or imposed upon the Company or any Material Subsidiary or upon the income, profits or property of the Company or any Material Subsidiary,

 

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(ii) all claims for labor, materials and supplies which, if unpaid, might by law become a lien or charge upon the property of the Company or any Material Subsidiary and (iii) all stamp taxes and other duties, if any, which may be imposed by the United States or any political subdivision thereof or therein in connection with the issuance, transfer, exchange, conversion, redemption or repurchase of any Securities or with respect to this Indenture other than pursuant to Section 2.06; provided that, in the case of clauses (i) and (ii), the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim (A) if the failure to do so will not, in the aggregate, have a material adverse impact on the Company and its Subsidiaries, taken as a whole, or (B) if the amount, applicability or validity is being contested in good faith by appropriate proceedings.

 

Section 3.07                             Stay, Extension and Usury Laws.  The Company (to the extent that it may lawfully do so) shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the Company from paying all or any portion of the principal of, premium, if any, or Interest on the Securities as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

Section 3.08                             Compliance Certificate.  The Company shall deliver to the Trustee, within one hundred twenty (120) days after the end of each fiscal year of the Company, an Officers’ Certificate, stating whether or not to the best knowledge of the signer thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and the status thereof of which the signer may have knowledge.

 

The Company will deliver to the Trustee, within thirty (30) days after the occurrence thereof of (i) any default in the performance or observance of any covenant, agreement or condition contained in this Indenture, or (ii) any Event of Default, an Officers’ Certificate specifying with particularity such default or Event of Default and further stating what action the Company has taken, is taking or proposes to take with respect thereto.

 

Any notice required to be given under this Section 3.08 shall be delivered to a Responsible Officer of the Trustee at its Corporate Trust Office.

 

Section 3.09                             Rule 144A Information Requirement; Reports

 

(a)                                 At any time the Company is not subject to Section 13 or 15(d) under the Exchange Act, the Company shall, so long as any of the Securities or any shares of Common Stock issuable upon conversion thereof shall, at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, promptly provide the Trustee and shall, upon written request, provide to any holder, beneficial owner or prospective purchaser of such Securities or any shares of Common Stock issuable upon conversion of such Securities, the

 

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information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Securities or shares of Common Stock pursuant to Rule 144A under the Securities Act and the Company shall take such further action as any holder or beneficial owner of such Securities may reasonably request to the extent required from time to time to enable such holder or beneficial owner to sell such Securities or Common Stock in accordance with Rule 144A under the Securities Act, as such Rule may be amended from time to time.

 

(b)                                 The Company covenants that any information, documents and reports that the Company may be required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (excluding any such information, documents or reports, or portions thereof, subject to confidential treatment and any correspondence with the Commission), shall be filed with the Trustee within fifteen (15) days after the same are required to be filed with the Commission (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act); provided that the Company shall be deemed to have filed such reports with the Trustee and the Securityholders if the Company has filed such reports with the Commission via the EDGAR filing system (or any successor thereto), it being understood that the Trustee shall not be responsible for determining whether such filings have been made or for their timeliness or their content.

 

(c)                                  Delivery of such statements, reports, notices and other information and documents to the Trustee pursuant to any provisions of this Section 3.09 is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee and Conversion Agent are to rely exclusively on Officers’ Certificates). The Trustee shall have no obligation whatsoever to monitor or confirm, on a continuing basis or otherwise, the Company’s compliance with its covenants or with respect to any reports or other documents filed with the Commission or the EDGAR filing system (or its successor) or any other website, or to participate in any conference calls.

 

(d)                                 If, at any time during the six-month period beginning on, and including, the date that is six months after the last date of original issuance of the Securities, the Company fails to timely file any document or report that it is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods thereunder and other than reports on Form 8-K), or the Securities are not otherwise freely tradable by Securityholders other than the Company’s Affiliates or Securityholders that were the Company’s Affiliates at any time during the three months preceding (as a result of restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Securities), the Company shall pay Additional Interest on the Securities.  Such Additional Interest shall accrue on the Securities at the rate of 0.50% per annum of the principal amount of the Securities outstanding for each day during such period for which the Company’s failure to file has occurred and is continuing or the Securities are not otherwise freely tradable by Securityholders other than the Company’s Affiliates (or Securityholders that have been the Company’s Affiliates at any time during the three months preceding) without restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Securities.  As used in this Section 3.09, documents or reports that the Company is required to “file” with the Commission pursuant to Section 13 or 15(d) of the

 

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Exchange Act does not include documents or reports that the Company furnishes to the Commission pursuant to Section 13 or 15(d) of the Exchange Act.

 

(e)                                  If, and for so long as, the restrictive legend on the Securities specified in Section 2.05(b) has not been removed (or deemed removed pursuant to this Indenture), the Securities are assigned a restricted CUSIP number or the Securities are not otherwise freely tradable by Securityholders other than the Company’s Affiliates or Securityholders that were the Company’s Affiliates at any time during the three months preceding (without restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Securities) as of the 365th day after the last date of original issuance of the Securities, the Company shall pay Additional Interest on the Securities at a rate equal to 0.50% per annum of the principal amount of Securities outstanding until the restrictive legend on the Securities has been removed in accordance with Section 2.05(b) (or deemed removed pursuant to this Indenture), the Securities are assigned an unrestricted CUSIP and the Securities are freely tradable by Securityholders other than the Company’s Affiliates (or Securityholders that were the Company’s Affiliates at any time during the three months preceding) (without restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Securities).

 

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

 

(g)                                  The Additional Interest that is payable in accordance with Section 3.09(d) or Section 3.09(e) shall be in addition to, and not in lieu of, any Additional Interest that may be payable as a result of the Company’s election pursuant to Section 5.03. Notwithstanding the foregoing, in no event shall Additional Interest accrue under the terms of this Indenture (aggregating any Additional Interest payable pursuant to Section 3.09(d) or Section 3.09(e) with any Additional Interest payable pursuant to Section 5.03) at a rate per year in excess of 0.50%, regardless of the number of events or circumstances giving rise to the requirement to pay such Additional Interest.

 

(h)                                 If Additional Interest is payable by the Company pursuant to Section 3.09(d) or Section 3.09(e), the Company shall deliver to the Trustee an Officers’ Certificate to that effect stating (i) the amount of such Additional Interest that is payable and (ii) the date on which such Additional Interest is payable.  Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no such Additional Interest is payable.  If the Company has paid Additional Interest directly to the Persons entitled to it, the Company shall deliver to the Trustee an Officers’ Certificate setting forth the particulars of such payment.

 

ARTICLE 4
 SECURITYHOLDERS’ LISTS AND REPORTS 
 BY THE COMPANY AND THE TRUSTEE

 

Section 4.01                             Securityholders’ Lists.  The Company will furnish or cause to be furnished to the Trustee, semiannually, not more than fifteen (15) days after each June 1 or December 1 in each year beginning with June 1, 2017, and at such other times as the Trustee may request in writing, within thirty (30) days after receipt by the Company of any such request (or such lesser

 

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time as the Trustee may reasonably request in order to enable it to timely provide any notice to be provided by it hereunder), a list in such form as the Trustee may reasonably require of the names and addresses of the holders of Securities as of a date not more than fifteen (15) days (or such other date as the Trustee may reasonably request in order to so provide any such notices) prior to the time such information is furnished, except that no such list need be furnished by the Company to the Trustee so long as the Trustee is acting as the sole Security Registrar.

 

Section 4.02                             Preservation and Disclosure of Lists.  The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the holders of Securities contained in the most recent list furnished to it as provided in Section 4.01 or maintained by the Trustee in its capacity as Security Registrar or co-registrar in respect of the Securities, if so acting.  The Trustee may destroy any list furnished to it as provided in Section 4.01 upon receipt of a new list so furnished.

 

(a)                                 The rights of Securityholders to communicate with other holders of Securities with respect to their rights under this Indenture or under the Securities, and the corresponding rights and duties of the Trustee, shall be as provided by the Trust Indenture Act.

 

(b)                                 Every Securityholder, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of holders of Securities made pursuant to the Trust Indenture Act.

 

Section 4.03                             Reports by Trustee.  Within sixty (60) days after June 15 of each year commencing with the June 15 following the date of this Indenture and for so long as any Securities remain outstanding, the Trustee shall transmit to holders of Securities such reports dated as of June 15 of the year in which such reports are made concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.  In the event that no events have occurred under the applicable sections of the Trust Indenture Act the Trustee shall be under no duty or obligation to provide such reports.  If required by Trust Indenture Act Section 313, the Trustee also shall comply with Trust Indenture Act Sections 313(b)(2) and (c).

 

A copy of such report shall, at the time of such transmission to holders of Securities, be filed by the Trustee with each stock exchange and automated quotation system upon which the Securities are listed and with the Commission.  The Company will promptly notify the Trustee in writing when the Securities are listed on any stock exchange or automated quotation system or delisted therefrom.

 

ARTICLE 5
 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS 
 ON AN EVENT OF DEFAULT

 

Section 5.01                             Events of Default.  If one or more of the following Events of Default (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing:

 

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(a)                                 default in the payment of any installment of Interest, including any Additional Interest, upon any of the Securities as and when the same shall become due and payable, and continuance of such default for a period of thirty (30) days; or

 

(b)                                 default in the payment of the principal of or premium, if any, on any of the Securities as and when the same shall become due and payable either at maturity or in connection with any redemption or repurchase, by acceleration or otherwise, upon declaration or otherwise; or

 

(c)                                  default in the Company’s obligation to provide a Fundamental Change Notice upon a Fundamental Change as provided in Section 14.05(a) or notice of a specified corporate event in accordance with Section 15.01(a)(ii); or

 

(d)                                 failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company in the Securities or in this Indenture (other than a covenant or agreement a default in whose performance or whose breach is elsewhere in this Section 5.01 specifically dealt with) continued for a period of sixty (60) days after the date on which written notice of such failure, requiring the Company to remedy the same, shall have been given to the Company by the Trustee, or the Company and a Responsible Officer of the Trustee by the holders of at least twenty-five percent (25%) in aggregate principal amount of the Securities at the time outstanding determined in accordance with Section 7.04; or

 

(e)                                  failure by the Company or any of its Material Subsidiaries to make any payment of the principal or interest on any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any debt for money borrowed in excess of $10,000,000 (or its equivalent in any other currency or currencies) in the aggregate of the Company and/or any such Material Subsidiary, whether such debt now exists or shall hereafter be created, resulting in such debt becoming or being declared due and payable, and such acceleration shall not have been rescinded or annulled within thirty (30) days after written notice of such acceleration has been received by the Company or such Material Subsidiary or such debt shall not have been annulled by being discharged within such thirty (30) day period; or

 

(f)                                   failure by the Company to comply with its obligations to deliver Common Stock, cash or a combination of cash and Common Stock, as applicable, upon conversion of the Securities within the time period specified in Section 15.02; or

 

(g)                                  the Company or any of its Material Subsidiaries shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or such Material Subsidiary or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or such Material Subsidiary or any substantial part of the property of the Company or such Material Subsidiary, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against the Company or such Material Subsidiary, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its or their debts as they become due; or

 

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(h)                                 an involuntary case or other proceeding shall be commenced against the Company or any of its Material Subsidiaries seeking liquidation, reorganization or other relief with respect to the Company or such Material Subsidiary or its or their debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or such Material Subsidiary or any substantial part of the property of the Company or such Material Subsidiary, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of sixty (60) consecutive days;

 

then, and in each and every such case (other than an Event of Default specified in Section 5.01(g) or 5.01(h) with respect to the Company), unless the principal of all of the Securities shall have already become due and payable, either the Trustee or the holders of not less than twenty-five percent (25%) in aggregate principal amount of the Securities then outstanding hereunder determined in accordance with Section 7.04, by notice in writing to the Company (and to the Trustee if given by Securityholders), may declare the principal of and premium, if any, on all the Securities and the Interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities contained to the contrary notwithstanding.  If an Event of Default specified in Section 5.01(g) or 5.01(h) occurs with respect to the Company, the principal of all the Securities and the Interest accrued thereon shall be immediately and automatically due and payable without necessity of further action.  This provision, however, is subject to the conditions that if, at any time after the principal of the Securities shall have been so declared due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of Interest upon all Securities and the principal of and premium, if any, on any and all Securities which shall have become due otherwise than by acceleration (with interest on overdue installments of Interest (to the extent that payment of such interest is enforceable under applicable law) and on such principal and premium, if any, at the rate borne by the Securities, to the date of such payment or deposit) and amounts due to the Trustee pursuant to Section 6.06, and if any and all defaults under this Indenture, other than the nonpayment of principal of and premium, if any, and accrued and unpaid Interest, if any, on Securities which shall have become due by acceleration, shall have been cured or waived pursuant to Section 5.08, then and in every such case the holders of a majority in aggregate principal amount of the Securities then outstanding, by written notice to the Company and to the Trustee, may waive all defaults or Events of Default and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or Event of Default, or shall impair any right consequent thereon.

 

In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such waiver or rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the holders of Securities, and the Trustee shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the holders of Securities, and the Trustee shall continue as though no such proceeding had been taken.

 

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Section 5.02                             Payments of Securities on Default; Suit Therefor.  The Company covenants that in case default shall be made in the payment of (a) any installment of Interest upon any of the Securities as and when the same shall become due and payable, and such default shall have continued for a period of thirty (30) days, or (b) the payment of the principal of or premium, if any, on any of the Securities as and when the same shall have become due and payable, whether at the Maturity Date of the Securities or in connection with any redemption or repurchase, by or under this Indenture, by declaration (subject to Section 5.01) or otherwise, then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Securities, the whole amount that then shall have become due and payable on all such Securities for principal and premium, if any, or Interest, as the case may be, with interest upon the overdue principal and premium, if any, and (to the extent that payment of such interest is enforceable under applicable law) upon the overdue installments of Interest at the rate set forth in the Securities for overdue payments of principal and Interest and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other amounts due the Trustee under Section 6.06.  Until such demand by the Trustee, the Company may pay the principal of and premium, if any, and Interest on the Securities to the registered holders, whether or not the Securities are overdue.

 

If the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or any other obligor on the Securities and collect in the manner provided by law out of the property of the Company or any other obligor on the Securities wherever situated the monies adjudged or decreed to be payable.

 

If there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Securities under Title 11 of the United States Code, or any other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Company or such other obligor, the property of the Company or such other obligor, or in the case of any other judicial proceedings relative to the Company or such other obligor upon the Securities, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 5.02, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal, premium, if any, and Interest owing and unpaid in respect of the Securities, and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and of the Securityholders allowed in such judicial proceedings relative to the Company or any other obligor on the Securities, its or their creditors, or its or their property, and to collect and receive any monies or other property payable or deliverable on any such claims, and to distribute the same after the deduction of any amounts due the Trustee under Section 6.06, and to take any other action with respect to such claims, including participating as a member of any official committee of creditors, as it reasonably deems necessary or advisable, and, unless prohibited by

 

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law or applicable regulations, any receiver, assignee or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is hereby authorized by each of the Securityholders to make such payments to the Trustee, and, if the Trustee shall consent to the making of such payments directly to the Securityholders, to first pay to the Trustee any amount due it for reasonable compensation, expenses, advances and disbursements, including counsel fees and expenses incurred by it up to the date of such distribution.  To the extent that such payment of reasonable compensation, expenses, advances and disbursements out of the estate in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, monies, securities and other property which the holders of the Securities may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise.

 

All rights of action and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the holders of the Securities.

 

In any proceedings brought by the Trustee (and in any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the holders of the Securities, and it shall not be necessary to make any holders of the Securities parties to any such proceedings.

 

Section 5.03                             Additional Interest.  Notwithstanding anything in this Indenture or in the Securities to the contrary, to the extent the Company elects, the sole remedy for an Event of Default relating to the Company’s failure to comply with its obligations as set forth in Section 3.09(e) shall, for the first 365 days after the occurrence of such an Event of Default, consist exclusively of the right to receive Additional Interest on the Securities at a rate equal to 0.25% per annum of the principal amount of the Securities outstanding for each day following the occurrence of such an Event of Default during which such Event of Default is continuing.  Additional Interest payable pursuant to this Section 5.03 shall be in addition to, not in lieu of, any Additional Interest payable pursuant to Section 3.09(d) or Section 3.09(e). If the Company so elects, such Additional Interest shall be payable in the same manner and on the same dates as regular interest on the Securities.  On the 366th day after such Event of Default (if the Event of Default relating to the Company’s failure to comply with its obligations as set forth in Section 3.09(d) is not cured or waived prior to such 366th day), the Securities shall be subject to acceleration as provided in Section 5.01.  In the event the Company does not elect to pay Additional Interest following an Event of Default in accordance with this Section 5.03 or the Company elected to make such payment but does not pay the Additional Interest when due, the Securities shall be immediately subject to acceleration as provided in Section 5.01.

 

In order to elect to pay Additional Interest as the sole remedy during the first 365 days after the occurrence of any Event of Default described in the immediately preceding paragraph, the Company must notify all holders of the Securities, the Trustee and the Paying Agent of such

 

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election prior to the beginning of such 365-day period.  Upon the failure to timely give such notice, the Securities shall be immediately subject to acceleration as provided in Section 5.01.

 

In no event shall Additional Interest accrue under the terms of this Indenture (aggregating any Additional Interest payable pursuant to Section 3.09(d) or Section 3.09(e) with any Additional Interest payable pursuant to this Section 5.03) at a rate per year in excess of 0.50%, regardless of the number of events or circumstances giving rise to the requirement to pay such Additional Interest.

 

Section 5.04                             Application of Monies Collected By Trustee.  Any monies collected by the Trustee pursuant to this Article 5 shall be applied in the order following, at the date or dates fixed by the Trustee for the distribution of such monies, upon presentation of the several Securities, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:

 

FIRST: To the payment of all amounts due the Trustee (acting in any capacity hereunder) under Section 6.06;

 

SECOND: In case the principal of the outstanding Securities shall not have become due and be unpaid, to the payment of Interest on the Securities in default in the order of the maturity of the installments of such Interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of Interest at the rate borne by the Securities, such payments to be made ratably to the Persons entitled thereto;

 

THIRD: In case the principal of the outstanding Securities shall have become due, by declaration or otherwise, and be unpaid to the payment of the whole amount then owing and unpaid upon the Securities for principal and premium, if any, and Interest, with interest on the overdue principal and premium, if any, and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest at the rate borne by the Securities, and in case such monies shall be insufficient to pay in full the whole amounts so due and unpaid upon the Securities, then to the payment of such principal and premium, if any, and interest without preference or priority of principal and premium, if any, over interest, or of interest over principal and premium, if any, or of any installment of interest over any other installment of Interest, or of any Security over any other Security, ratably to the aggregate of such principal and premium, if any, and accrued and unpaid Interest, if any; and

 

FOURTH: To the payment of the remainder, if any, to the Company or any other Person lawfully entitled thereto.

 

Section 5.05                             Proceedings by Securityholders.  No holder of any Security shall have any right by virtue of or by reference to any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture, or for the appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any other remedy hereunder, unless such holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as hereinbefore provided, and unless also the holders of not less than twenty-five percent (25%) in aggregate principal amount of the Securities then outstanding shall have made written request upon the Trustee to institute such

 

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action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee for sixty (60) days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 5.09; it being understood and intended, and being expressly covenanted by the taker and holder of every Security with every other taker and holder and the Trustee, that no one or more holders of Securities shall have any right in any manner whatever by virtue of or by reference to any provision of this Indenture to affect, disturb or prejudice the rights of any other holder of Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all holders of Securities (except as otherwise provided herein).  For the protection and enforcement of this Section 5.05, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.

 

Notwithstanding any other provision of this Indenture and any provision of any Security, the right of any holder of any Security to receive payment of the principal of and premium, if any (including the redemption price or repurchase price upon redemption or repurchase pursuant to Article 14), and accrued and unpaid Interest, if any, on such Security, on or after the respective due dates expressed in such Security or in the event of redemption or repurchase, or to institute suit for the enforcement of any such payment on or after such respective dates against the Company shall not be impaired or affected without the consent of such holder.

 

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

 

Section 5.06                             Proceedings by Trustee.  If an Event of Default has occurred and is continuing, the Trustee may, in its discretion, proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial or other proceedings as are necessary to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.

 

Section 5.07                             Remedies Cumulative and Continuing.  Except as provided in Section 2.06, all powers and remedies given by this Article 5 to the Trustee or to the Securityholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any default or Event of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or any acquiescence therein, and, subject to the provisions of Section 5.05, every power and remedy given by this Article 5 or by law to the

 

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Trustee or to the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.

 

Section 5.08                             Direction of Proceedings and Waiver of Defaults by Majority of Securityholders.  The holders of a majority in aggregate principal amount of the Securities at the time outstanding determined in accordance with Section 7.04 shall have the right to direct in writing 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 that (a) such written direction shall not be in conflict with any rule of law or with this Indenture, (b) the Trustee may take any other action which is not inconsistent with such written direction, (c) the Trustee may decline to take any action that (i) would benefit some Securityholder to the detriment of other Securityholders; or (ii) for which the Trustee has not received indemnity or security satisfactory to it, and (d) the Trustee may decline to take any action that would involve the Trustee in personal liability.  The holders of a majority in aggregate principal amount of the Securities at the time outstanding determined in accordance with Section 7.04 may, on behalf of the holders of all of the Securities, waive any past default or Event of Default hereunder and its consequences except (i) a default in the payment of Interest or premium, if any, on, or the principal of, the Securities, (ii) a failure by the Company to convert any Securities into Common Stock, cash or a combination of cash and Common Stock, (iii) a default in the payment of the redemption price or repurchase price pursuant to Article 14, (iv) a default in the payment of any repurchase price pursuant to Article 14 or (v) a default in respect of a covenant or provisions hereof which under Article 9 cannot be modified or amended without the consent of the holders of each or all Securities then outstanding or affected thereby.  Upon any such waiver, the Company, the Trustee and the holders of the Securities shall be restored to their former positions and rights hereunder; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.  Whenever any default or Event of Default hereunder shall have been waived as permitted by this Section 5.08, said default or Event of Default shall for all purposes of the Securities and this Indenture be deemed to have been cured and to be not continuing; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.

 

Section 5.09                             Notice of Defaults.  The Trustee shall, within ninety (90) days after a default occurs and is actually known to a Responsible Officer of the Trustee, send to all Securityholders, as the names and addresses of such holders appear upon the Security Register, notice of all defaults known to a Responsible Officer, unless such defaults shall have been cured or waived before the giving of such notice; provided that except in the case of default in the payment of the principal of, or premium, if any, or Interest on any of the Securities, the Trustee shall be protected in withholding such notice if and so long as it in good faith determines that the withholding of such notice is in the interests of the Securityholders.

 

Section 5.10                             Undertaking to Pay Costs.  All parties to this Indenture agree, and each holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of

 

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the claims or defenses made by such party litigant; provided that the provisions of this Section 5.10 (to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of Securityholders, holding in the aggregate more than ten percent (10%) in principal amount of the Securities at the time outstanding determined in accordance with Section 7.04, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of or premium, if any, or Interest on any Security on or after the due date expressed in such Security or to any suit for the enforcement of the right to convert any Security in accordance with the provisions of Article 15.

 

ARTICLE 6
 THE TRUSTEE

 

Section 6.01                             Duties and Responsibilities of Trustee.  The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture.  In case an Event of Default has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care that a prudent person would use under the circumstances in the conduct of its own affairs.

 

No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:

 

(a)                                 prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default which may have occurred:

 

(i)                                     the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(ii)                                  in the absence of bad faith and willful misconduct on the part of the Trustee, the Trustee may conclusively rely as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture;

 

(b)                                 the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless the Trustee was negligent in ascertaining the pertinent facts;

 

(c)                                  the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written direction of the holders of not less than a

 

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majority in principal amount of the Securities at the time outstanding determined as provided in Section 7.04 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;

 

(d)                                 whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 6.01;

 

(e)                                  the Trustee shall not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent or any records maintained by any co-registrar with respect to the Securities;

 

(f)                                   if any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred;

 

(g)                                  the Trustee shall not be deemed to have knowledge of any Event of Default hereunder unless it shall have been notified in writing, which shall include a reference to this Indenture, of such Event of Default by the Company or the holders of at least ten percent (10%) in aggregate principal amount of the Securities;

 

(h)                                 the Trustee shall not be liable if prevented or delayed in performing any of its duties by reason of any present or future law applicable to it, by any governmental or regulatory authority or by any circumstances beyond its control; and

 

(i)                                     under no circumstances will the Trustee be liable to the Company or any other party to this Indenture for any consequential loss (being loss of business, goodwill, opportunity or profit) or any special or punitive damages of any kind whatsoever; in each case however caused or arising and whether or not foreseeable, even if advised of the possibility of such loss or damage.

 

None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

Section 6.02                             Reliance on Documents, Opinions, Rights of the Trustee, Etc.  Except as otherwise provided in Section 6.01:

 

(a)                                 the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, Security, note, coupon or other paper or document (whether in its original or facsimile form) believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties;

 

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(b)                                 any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;

 

(c)                                  the Trustee may consult with counsel of its own selection and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;

 

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

 

(e)                                  the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, Security or other paper or document, but the Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee in its discretion shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole reasonable cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;

 

(f)                                   the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed by it with due care hereunder;

 

(g)                                  the Trustee shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;

 

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

 

(i)                                     the Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and their titles and specimen signatures of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;

 

(j)                                    any permissive right or authority granted to the Trustee shall not be construed as a mandatory duty; and

 

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(k)                                 the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.

 

Section 6.03                             No Responsibility for Recitals, Etc.  The recitals contained herein and in the Securities (except in the Trustee’s certificate of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same.  The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.  The Trustee shall not be accountable for the use or application by the Company of any Securities or the proceeds of any Securities authenticated and delivered by the Trustee in conformity with the provisions of this Indenture.

 

Section 6.04                             Trustee, Paying Agents, Conversion Agents or Security Registrar May Own Securities.  The Trustee, any Paying Agent, any Conversion Agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, Paying Agent, Conversion Agent or Security Registrar.

 

Section 6.05                             Monies to Be Held in Trust.  Subject to the provisions of Section 11.04, all monies and properties received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received.  Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law.  The Trustee shall be under no liability for interest on any money received by it hereunder except as may be agreed in writing from time to time by the Company and the Trustee.

 

Section 6.06                             Compensation and Expenses of Trustee; Indemnity for Trustee.  The Company covenants and agrees to pay to the Trustee (acting in any capacity hereunder) from time to time, and the Trustee shall be entitled to, such compensation for all services rendered by it hereunder in any capacity (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as mutually agreed to from time to time in writing between the Company and the Trustee in writing, and the Company will pay or reimburse the Trustee upon its request for all expenses, disbursements and advances properly incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the compensation and the expenses and disbursements of its counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence, willful misconduct or bad faith (as determined by a final, non-appealable decision of a court of competent jurisdiction).  The Company also covenants to indemnify the Trustee (acting in any capacity hereunder) and any predecessor Trustee (or any officer, director or employee of the Trustee), in any capacity under this Indenture and its agents and any authenticating agent or by anyone appointed by it or to whom any of its functions may be delegated by it in the carrying out of its functions in the fulfillment of its obligations under this Indenture, for, and to hold them harmless against, any and all loss, liability, damage, claim or expense including taxes (other than taxes based on the income of the Trustee) incurred without negligence or willful misconduct or bad faith (as determined by a final, non-appealable decision of a court of competent jurisdiction) on the part of the Trustee or such officers, directors, employees and agent or authenticating agent, as the case may be, and arising out of or in connection with the acceptance or administration of this trust or in any other capacity hereunder, including the costs and expenses of defending themselves against any claim (whether asserted by

 

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the Company, any holder or any other Person) of liability in connection with the exercise or performance of any of its or their powers or duties.  The obligations of the Company under this Section 6.06 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the holders of particular Securities.  The obligation of the Company under this Section shall survive the satisfaction and discharge of this Indenture and the resignation and/or removal of the Trustee in any capacity hereunder.

 

When the Trustee and its agents and any authenticating agent incur expenses or render services after an Event of Default specified in Section 5.01(g) or (h) with respect to the Company occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any bankruptcy, insolvency or similar laws.

 

Section 6.07                             Officers’ Certificate as Evidence.  Except as otherwise provided in Section 6.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of bad faith or willful misconduct on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee.

 

Section 6.08                             Conflicting Interests of Trustee.  If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall (i) eliminate such interest within ninety (90) days after ascertaining that it has such conflicting interest or (ii) resign, in each case to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.

 

Section 6.09                             Eligibility of Trustee.  There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000 (or if such Person is a member of a bank holding company system, its bank holding company shall have a combined capital and surplus of at least $50,000,000).  If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority, then for the purposes of this Section the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 6.09, it shall resign immediately in the manner and with the effect hereinafter specified in this Article 6.

 

Section 6.10                             Resignation or Removal of Trustee.

 

(a)                                 The Trustee may at any time resign by giving written notice of such resignation to the Company and to the holders of Securities.  Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee.  If no successor trustee shall have been so appointed and have accepted appointment sixty (60) days after the mailing of such notice of

 

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resignation to the Securityholders, the resigning Trustee may, upon ten (10) Business Days’ notice to the Company and the Securityholders, appoint a successor identified in such notice or may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor trustee, or, if any Securityholder who has been a bona fide holder of a Security or Securities for at least six (6) months may, subject to the provisions of Section 5.10, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee.  Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.

 

(b)                                 In case at any time any of the following shall occur:

 

(i)                                     the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Securityholder who has been a bona fide holder of a Security or Securities for at least six (6) months; or

 

(ii)                                  the Trustee shall cease to be eligible in accordance with the provisions of Section 6.09 and shall fail to resign after written request therefor by the Company or by any such Securityholder; or

 

(iii)                               the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;

 

then, in any such case, the Company may remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 5.10, any Securityholder who has been a bona fide holder of a Security or Securities for at least six (6) months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee; provided that if no successor Trustee shall have been appointed and have accepted appointment sixty (60) days after either the Company or the Securityholders has removed the Trustee, or the Trustee resigns, the Trustee so removed may petition, at the expense of the Company, any court of competent jurisdiction for an appointment of a successor trustee.  Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.

 

(c)                                  The holders of a majority in aggregate principal amount of the Securities at the time outstanding may at any time remove the Trustee and nominate a successor trustee which shall be deemed appointed as successor trustee unless, within ten (10) days after notice to the Company of such nomination, the Company objects thereto, in which case the Trustee so removed or any Securityholder, or if such Trustee so removed or any Securityholder fails to act, the Company, upon the terms and conditions and otherwise as provided in Section 6.10(a), may petition any court of competent jurisdiction for an appointment of a successor trustee.

 

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(d)                                 Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 6.10 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 6.11.

 

(e)                                  Notwithstanding the replacement of the Trustee pursuant to this Section 6.10, the Company’s obligations under Section 6.06 shall continue for the benefit of the retiring Trustee.

 

Section 6.11                             Acceptance by Successor Trustee.  Any successor trustee appointed as provided in Section 6.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amount then due it pursuant to the provisions of Section 6.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act.  Upon request of any such successor trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers.  Any trustee ceasing to act shall, nevertheless, retain a lien upon all property and funds held or collected by such trustee as such, except for funds held in trust for the benefit of holders of particular Securities, to secure any amounts then due it pursuant to the provisions of Section 6.06.

 

No successor trustee shall accept appointment as provided in this Section 6.11 unless, at the time of such acceptance, such successor trustee shall be qualified under the provisions of Section 6.08 and be eligible under the provisions of Section 6.09.  The resigning or removed Trustee shall have no liability or responsibility for the action or inaction of any successor trustee.

 

Upon acceptance of appointment by a successor trustee as provided in this Section 6.11, the Company shall mail or cause to be mailed notice of the succession of such trustee hereunder to the holders of Securities at their addresses as they shall appear on the Security Register.  If the Company fails to mail such notice within ten (10) days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of the Company.

 

Section 6.12                             Succession by Merger.  Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee (including any trust created by this Indenture), shall be the successor to the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that in the case of any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, such corporation shall be qualified under the provisions of Section 6.08 and eligible under the provisions of Section 6.09.

 

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

 

Section 6.13                             [Reserved.]

 

Section 6.14                             Trustee’s Application for Instructions from the Company.  Any application by the Trustee for written instructions from the Company (other than with regard to any action proposed to be taken or omitted to be taken by the Trustee that affects the rights of the holders of the Securities under this Indenture) may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three (3) Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Trustee shall have received written instructions in response to such application specifying the action to be taken or omitted.

 

Section 6.15                             Force Majeure.  In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

ARTICLE 7
 THE SECURITYHOLDERS

 

Section 7.01                             Action by Securityholders.  Whenever in this Indenture it is provided that the holders of a specified percentage in aggregate principal amount of the Securities may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action, the holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Securityholders in person or by agent or proxy appointed in writing, or (b) by the record of the holders of Securities voting in favor

 

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thereof at any meeting of Securityholders duly called and held in accordance with the provisions of Article 8, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Securityholders.  Whenever the Company or the Trustee solicits the taking of any action by the holders of the Securities, the Company or the Trustee may fix in advance of such solicitation, a date as the record date for determining holders entitled to take such action.  The record date shall be not more than fifteen (15) days prior to the date of commencement of solicitation of such action.

 

Section 7.02                             Proof of Execution by Securityholders.  Subject to the provisions of Sections 6.01, 6.02 and 8.05, proof of the execution of any instrument by a Securityholder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee.  The holding of Securities shall be proved by the registry of such Securities or by a certificate of the Security Registrar.

 

The record of any Securityholders’ meeting shall be proved in the manner provided in Section 8.06.

 

Section 7.03                             Who are Deemed Absolute Owners.  The Company, the Trustee, any Paying Agent, any Conversion Agent and any Security Registrar may deem the Person in whose name such Security shall be registered upon the Security Register to be, and may treat it as, the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon made by any Person other than the Company or any Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and Interest on such Security, for conversion of such Security and for all other purposes; and neither the Company nor the Trustee nor any Paying Agent nor any Conversion Agent nor any Security Registrar shall be affected by any notice to the contrary.  All such payments so made to any holder for the time being, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for monies payable upon any such Security.

 

Section 7.04                             Company-owned Securities Disregarded.  In determining whether the holders of the requisite aggregate principal amount of Securities have concurred in any direction, consent, waiver or other action under this Indenture, Securities which are owned by the Company or any other obligor on the Securities or any Affiliate of the Company or any other obligor on the Securities shall be disregarded and deemed not to be outstanding for the purpose of any such determination; provided that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent, waiver or other action, only Securities which a Responsible Officer knows are so owned shall be so disregarded.  Securities so owned which have been pledged in good faith may be regarded as outstanding for the purposes of this Section 7.04 if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to vote such Securities and that the pledgee is not the Company, any other obligor on the Securities or any Affiliate of the Company or any such other obligor.  In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.  Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying all Securities, if any, known by the Company to be owned or held by or for the account of any of the above described Persons,

 

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and, subject to Section 6.01, the Trustee shall accept such Officers’ Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are outstanding for the purpose of any such determination.

 

Section 7.05                             Revocation of Consents; Future Holders Bound.  At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 7.01, of the taking of any action by the holders of the percentage in aggregate principal amount of the Securities specified in this Indenture in connection with such action, any holder of a Security which is shown by the evidence to be included in the Securities the holders of which have consented to such action may, by filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in Section 7.02, revoke such action so far as concerns such Security.  Except as aforesaid, any such action taken by the holder of any Security shall be conclusive and binding upon such holder and upon all future holders and owners of such Security and of any Securities issued in exchange or substitution therefor, irrespective of whether any notation in regard thereto is made upon such Security or any Security issued in exchange or substitution therefor.

 

ARTICLE 8
 MEETINGS OF SECURITYHOLDERS

 

Section 8.01                             Purpose of Meetings.  A meeting of Securityholders may be called at any time and from time to time pursuant to the provisions of this Article 8 for any of the following purposes:

 

(1)                                 to give any notice to the Company or to the Trustee or to give any directions to the Trustee permitted under this Indenture, or to consent to the waiving of any default or Event of Default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders pursuant to any of the provisions of Article 5;

 

(2)                                 to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article 6;

 

(3)                                 to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 9.02; or

 

(4)                                 to take any other action authorized to be taken by or on behalf of the holders of any specified aggregate principal amount of the Securities under any other provision of this Indenture or under applicable law.

 

Section 8.02                             Call of Meetings by Trustee.  The Trustee may at any time call a meeting of Securityholders at the expense of the Company to take any action specified in Section 8.01, to be held at such time and at such place as the Trustee shall determine.  Notice of every meeting of the Securityholders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting and the establishment of any record date pursuant to Section 7.01, shall be mailed to holders of Securities at their addresses as they shall appear on the Security Register.  Such notice shall also be mailed to the Company.  Such notices shall be mailed not less than twenty (20) nor more than ninety (90) days prior to the date fixed for the meeting.

 

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Any meeting of Securityholders shall be valid without notice if the holders of all Securities then outstanding are present in person or by proxy or if notice is waived before or after the meeting by the holders of all Securities outstanding, and if the Company and the Trustee are either present by duly authorized representatives or have, before or after the meeting, waived notice.

 

Section 8.03                             Call of Meetings by Company or Securityholders.  In case at any time the Company, pursuant to a resolution of its Board of Directors, or the holders of at least ten percent (10%) in aggregate principal amount of the Securities then outstanding, shall have requested the Trustee to call a meeting of Securityholders, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within twenty (20) days after receipt of such request, then the Company or such Securityholders may determine the time and the place for such meeting and may call such meeting to take any action authorized in Section 8.01, by mailing notice thereof as provided in Section 8.02.

 

Section 8.04                             Qualifications for Voting.  To be entitled to vote at any meeting of Securityholders a Person shall (a) be a holder of one or more Securities on the record date pertaining to such meeting or (b) be a Person appointed by an instrument in writing as proxy by a holder of one or more Securities on the record date pertaining to such meeting.  The only Persons who shall be entitled to be present or to speak at any meeting of Securityholders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.

 

Section 8.05                             Regulations.  Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.

 

The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Securityholders as provided in Section 8.03, in which case the Company or the Securityholders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman.  A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the holders of a majority in principal amount of the Securities represented at the meeting and entitled to vote at the meeting.

 

Subject to the provisions of Section 7.04, at any meeting each Securityholder or proxyholder shall be entitled to one vote for each $1,000 principal amount of Securities held or represented by him; provided that no vote shall be cast or counted at any meeting in respect of any Security challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding.  The chairman of the meeting shall have no right to vote other than by virtue of Securities held by him or instruments in writing as aforesaid duly designating him as the proxy to vote on behalf of other Securityholders.  Any meeting of Securityholders duly called pursuant to the provisions of Section 8.02 or 8.03 may be adjourned from time to time by the holders of a majority of the aggregate principal amount of Securities represented at the meeting, whether or

 

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not constituting a quorum, and the meeting may be held as so adjourned without further notice.  For purposes of this Indenture, “quorum” shall mean at a meeting of Securityholders, one or more Persons present in person holding or representing in the aggregate not less than fifty percent (50%) in aggregate principal amount of the Securities then outstanding.

 

Section 8.06                             Voting.  The vote upon any resolution submitted to any meeting of Securityholders shall be by written ballot on which shall be subscribed the signatures of the holders of Securities or of their representatives by proxy and the outstanding principal amount of the Securities held or represented by them.  The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting.  A record in duplicate of the proceedings of each meeting of Securityholders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 8.02.  The record shall show the principal amount of the Securities voting in favor of or against any resolution.  The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.

 

Any record so signed and verified shall be conclusive evidence of the matters therein stated.

 

Section 8.07                             No Delay of Rights by Meeting.  Nothing contained in this Article 8 shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Securityholders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Securityholders under any of the provisions of this Indenture or of the Securities.

 

ARTICLE 9
 SUPPLEMENTAL INDENTURES

 

Section 9.01                             Supplemental Indentures Without Consent of Securityholders.  The Company, when authorized by the resolutions of the Board of Directors, and the Trustee may, from time to time, and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes:

 

(a)                                 to cure any ambiguity, omission, defect or inconsistency with any other provision contained herein or in any supplemental indenture;

 

(b)                                 to evidence the succession of another Person to the Company, or successive successions, and the assumption by the successor Person of the covenants, agreements and obligations of the Company pursuant to Article 10;

 

(c)                                  to add guarantees with respect to the Securities;

 

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(d)                                 to secure the Securities;

 

(e)                                  to add to the covenants of the Company for the benefit of the holders of Securities (and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants a default or an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth) or to surrender any right or power conferred upon the Company by this Indenture;

 

(f)                                   to make any changes or modifications to this Indenture necessary to qualify this Indenture under the Trust Indenture Act;

 

(g)                                  to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities; or

 

(h)                                 to make any change that does not materially adversely affect the rights of any holder of the Securities, provided that any amendment made solely to conform the provisions of this Indenture or the Securities to the description of the Securities in the Offering Memorandum will not be deemed to materially adversely affect the rights of any holder.

 

Upon the written request of the Company, accompanied by a copy of the resolutions of the Board of Directors certified by its Secretary or any Assistant Secretary authorizing the execution of any supplemental indenture, the Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations that may be therein contained and to accept the conveyance, transfer and assignment of any property thereunder, but the Trustee shall not be obligated to, but may in its discretion, enter into any supplemental indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

 

Any supplemental indenture authorized by the provisions of this Section 9.01 may be executed by the Company and the Trustee without the consent of the holders of any of the Securities at the time outstanding, notwithstanding any of the provisions of Section 9.02.

 

Section 9.02                             Supplemental Indenture with Consent of Securityholders.  With the consent (evidenced as provided in Article 7) of the holders of at least a majority in aggregate principal amount of the Securities at the time outstanding, the Company, when authorized by the resolutions of the Board of Directors, and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or any supplemental indenture or of modifying in any manner the rights of the holders of the Securities; provided that, without the consent of the holders of all Securities then outstanding, no such supplemental indenture shall:

 

(a)                                 reduce the percentage in aggregate principal amount of Securities the holders of which must consent to an amendment;

 

(b)                                 reduce the rate or extend the time of payment of Interest on any Security

 

(c)                                  reduce the principal amount or extend the stated maturity on any Security;

 

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(d)                                 change the place or currency of payment of principal or Interest in respect of any Security;

 

(e)                                  make any change that adversely affects the conversion rights of any Securities, including any change to the provisions of Section 15.04 and Section 15.07 (other than any such modifications as are required under this Indenture; provided that, for the avoidance of doubt, an amendment that has the effect of implementing an irrevocable election of Physical Settlement with respect to all outstanding Securities and does not otherwise affect the conversion rights shall not be considered to adversely affect the conversion rights of any Securities for such purposes);

 

(f)                                   reduce the redemption price or the repurchase price upon a redemption or repurchase pursuant to Article 14 or amend or modify in any manner adverse to the holders the Company’s obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise;

 

(g)                                  impair the right of any holder to receive payment of principal of and Interest on such holder’s Securities on or after the due dates therefor or to institute suit for the enforcement of any payment thereof;

 

(h)                                 made any change in the provisions of this Section 9.02 or Section 5.08, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the holder of each Security so affected; or

 

(i)                                     change any obligation of the Company to pay Additional Interest.

 

Upon the written request of the Company, accompanied by a copy of the resolutions of the Board of Directors certified by its Secretary or any Assistant Secretary authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.

 

It shall not be necessary for the consent of the Securityholders under this Section 9.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.

 

Section 9.03                             Effect of Supplemental Indenture.  Upon the execution of any supplemental indenture pursuant to the provisions of this Article 9, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders of Securities shall thereafter be determined, exercised and enforced hereunder, subject in all respects to such modifications and amendments and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.

 

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Section 9.04                             Notation on Securities.  Securities authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article 9 may bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture.  If the Company or the Trustee shall so determine, new Securities so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may, at the Company’s expense, be prepared and executed by the Company, authenticated by the Trustee (or an authenticating agent duly appointed by the Trustee pursuant to Section 13.11) and delivered in exchange for the Securities then outstanding, upon surrender of such Securities then outstanding.

 

Section 9.05                             Evidence of Compliance of Supplemental Indenture to be Furnished to Trustee.  Prior to entering into any supplemental indenture, the Trustee shall be provided with an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the requirements of this Article 9, is otherwise authorized or permitted by this Indenture and is the legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms.

 

ARTICLE 10
 CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE

 

Section 10.01                      Company May Consolidate on Certain Terms.  Subject to the provisions of Section 10.02, the Company shall not consolidate with or merge with or into any other Person or Persons (whether or not affiliated with the Company), nor shall the Company or its successor or successors be a party or parties to successive consolidations or mergers, nor shall the Company sell, convey, transfer or lease all or substantially all of the property and assets of the Company to any other Person (whether or not affiliated with the Company), unless: (i) the resulting, surviving or transferee Person is a corporation organized and existing under the laws of the United States, any state thereof, or the District of Columbia; (ii) upon any such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of the principal of and premium, if any, and Interest on all of the Securities, according to their tenor and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Company, shall be expressly assumed, by supplemental indenture satisfactory  to the Trustee, executed and delivered to the Trustee by such entity (if other than the Company) formed by such consolidation, or into which the Company shall have been merged, or by the entity that shall have acquired or leased such property, and such supplemental indenture shall provide for the applicable conversion rights set forth in Section 15.07; and (iii) immediately after giving effect to the transaction described above, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing.

 

Section 10.02                      Successor to be Substituted.  In case of any such consolidation, merger, sale, conveyance, transfer or lease and upon the assumption by the successor entity, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal of and premium, if any, and Interest on all of the Securities and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Company, such successor entity shall succeed to and be substituted for the Company, with the same effect as if it had been named herein as the party of

 

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this first part.  Such successor entity thereupon may cause to be signed, and may issue either in its own name or in the name of the Company any or all of the Securities, issuable hereunder that theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor entity instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered, any Securities that previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Securities that such successor entity thereafter shall cause to be signed and delivered to the Trustee for that purpose.  All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof.  In the event of any such consolidation, merger, sale, conveyance, transfer or lease, the entity named as the “Company” in the first paragraph of this Indenture or any successor that shall thereafter have become such in the manner prescribed in this Article 10 may be dissolved, wound up and liquidated at any time thereafter and such entity shall be released from its liabilities as obligor and maker of the Securities and from its obligations under this Indenture.

 

In case of any such consolidation, merger, sale, conveyance, transfer or lease, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.

 

Section 10.03                      Officers’ Certificate and Opinion of Counsel to be Given to Trustee.  The Trustee shall receive an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance, transfer or lease and any such assumption complies with the provisions of this Article 10.

 

ARTICLE 11
 SATISFACTION AND DISCHARGE OF INDENTURE

 

Section 11.01                      Discharge of Indenture. When (a) the Company shall deliver to the Trustee for cancellation all Securities theretofore authenticated (other than any Securities that have been destroyed, lost or stolen and in lieu of or in substitution for which other Securities shall have been authenticated and delivered in each case pursuant to Section 2.06) and not theretofore canceled, or (b) all the Securities not theretofore canceled or delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall irrevocably deposit with the Trustee, in trust, cash sufficient to pay at Maturity Date or upon redemption of all of the Securities (other than any Securities that shall have been mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Securities shall have been authenticated and delivered) not theretofore canceled or delivered to the Trustee for cancellation, including principal and premium, if any, and Interest due or to become due to such Maturity Date or redemption date, as the case may be, accompanied by a verification report, as to the sufficiency of the deposited amount, from a nationally recognized firm of independent certified accountants or other financial professional satisfactory to the Trustee, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the Company,

 

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then this Indenture shall cease to be of further effect (except as to (i) remaining rights of registration of transfer, substitution and exchange and conversion of Securities, (ii) rights hereunder of Securityholders to receive payments of principal of and premium, if any, and Interest on, the Securities and the other rights, duties and obligations of Securityholders, as beneficiaries hereof with respect to the amounts, if any, so deposited with the Trustee and (iii) the rights, obligations and immunities of the Trustee hereunder), and the Trustee, on written demand of the Company accompanied by an Officers’ Certificate and an Opinion of Counsel as required by Section 13.05 and at the cost and expense of the Company, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture; the Company, however, hereby agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred by the Trustee and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Securities.

 

Section 11.02                      Deposited Monies to be Held in Trust by Trustee.  Subject to Section 11.04, all monies deposited with the Trustee pursuant to Section 11.01, shall be held in trust for the sole benefit of the Securityholders, and such monies shall be applied by the Trustee to the payment, either directly or through any Paying Agent (including the Company if acting as its own paying agent), to the holders of the particular Securities for the payment or redemption of which such monies have been deposited with the Trustee, of all sums due and to become due thereon for principal and Interest and premium, if any.

 

Section 11.03                      Paying Agent to Repay Monies Held.  Upon the satisfaction and discharge of this Indenture, all monies then held by any Paying Agent of the Securities (other than the Trustee) shall, upon written request of the Company, be repaid to it or paid to the Trustee, and thereupon such Paying Agent shall be released from all further liability with respect to such monies.

 

Section 11.04                      Return of Unclaimed Monies.  Subject to the requirements of applicable law, any monies deposited with or paid to the Trustee for payment of the principal of, premium, if any, or Interest on Securities and not applied but remaining unclaimed by the holders of Securities for two years after the date upon which the principal of, premium, if any, or Interest on such Securities, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee on written demand and all liability of the Trustee shall thereupon cease with respect to such monies; and the holder of any of the Securities shall thereafter look only to the Company for any payment that such holder may be entitled to collect unless an applicable abandoned property law designates another Person.

 

Section 11.05                      Reinstatement.  If the Trustee or the Paying Agent is unable to apply any money in accordance with Section 11.02 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 until such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with Section 11.02; provided that if the Company makes any payment of Interest on or principal of any Security following the reinstatement of its obligations, the Company shall be subrogated to the rights of the holders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.

 

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ARTICLE 12
 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, 
 OFFICERS AND DIRECTORS

 

Section 12.01                      Indenture and Securities Solely Corporate Obligations.  No recourse for the payment of the principal of or premium, if any, or Interest on any Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent, officer, director or subsidiary, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Securities.

 

ARTICLE 13
 GENERAL PROVISIONS

 

Section 13.01                      Provisions Binding on Company’s Successors.  All the covenants, stipulations, promises and agreements by the Company contained in this Indenture shall bind its successors and assigns whether so expressed or not.

 

Section 13.02                      Official Acts by Successor Corporation.  Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any Person that shall at the time be the lawful sole successor of the Company.

 

Section 13.03                      Addresses for Notices, Etc.  Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the holders of Securities on the Company shall be in writing and shall be deemed to have been sufficiently given or made, for all purposes, if given or served by being deposited postage prepaid by registered or certified mail in a post office letter box, or sent by express overnight air courier for next day delivery or sent by telecopier transmission addressed as follows: to Finisar Corporation, 1389 Moffett Park Drive, Sunnyvale, CA 94089-1134, Fax No.: (408) 541-4154, Attention: Chief Financial Officer.  Any notice, direction, request or demand hereunder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or served by being deposited, postage prepaid, by registered or certified mail in a post office letter box or sent by telecopier transmission addressed to the Corporate Trust Office.

 

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

 

Any notice or communication mailed to a Securityholder shall be mailed to him electronically, by first class mail, postage prepaid, or sent by express overnight air courier for next day delivery at his address as it appears on the Security Register and shall be sufficiently given to him if so mailed within the time prescribed.

 

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Failure to mail a notice or communication to a Securityholder or any defect in it shall not affect its sufficiency with respect to other Securityholders.  If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.

 

Section 13.04                      Governing Law.  This Indenture and each Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of the State of New York.

 

Section 13.05                      Evidence of Compliance with Conditions Precedent, Certificates to Trustee.  Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.

 

Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include: (1) a statement that the person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.

 

Section 13.06                      Legal Holidays.  In any case in which the date of maturity of Interest on or principal of the Securities or the redemption date of any Security will not be a Business Day, then payment of such Interest on or principal of the Securities need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Maturity Date or the redemption date, and no Interest shall accrue for the period from and after such date.

 

Section 13.07                      [Reserved.]

 

Section 13.08                      No Security Interest Created.  Nothing in this Indenture or in the Securities, expressed or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction in which property of the Company or its subsidiaries is located.

 

Section 13.09                      Benefits of Indenture.  Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto, any Paying Agent, any authenticating agent, any Security Registrar and their successors hereunder and the holders of Securities any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

Section 13.10                      Table of Contents, Headings, Etc.  The table of contents and the titles and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.

 

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Section 13.11                      Authenticating Agent.  The Trustee may appoint an authenticating agent that shall be authorized to act on its behalf, and subject to its direction, in the authentication and delivery of Securities in connection with the original issuance thereof and transfers and exchanges of Securities hereunder, including under Sections 2.04, 2.05, 2.06, 2.07, 14.03 and Section 14.08, as fully to all intents and purposes as though the authenticating agent had been expressly authorized by this Indenture and those Sections to authenticate and deliver Securities.  For all purposes of this Indenture, the authentication and delivery of Securities by the authenticating agent shall be deemed to be authentication and delivery of such Securities “by the Trustee” and a certificate of authentication executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any requirement hereunder or in the Securities for the Trustee’s certificate of authentication.  Such authenticating agent shall at all times be a Person eligible to serve as trustee hereunder pursuant to Section 6.09.

 

Any corporation into which any authenticating agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, consolidation or conversion to which any authenticating agent shall be a party, or any corporation succeeding to the corporate trust business of any authenticating agent, shall be the successor of the authenticating agent hereunder, if such successor corporation is otherwise eligible under this Section 13.11, without the execution or filing of any paper or any further act on the part of the parties hereto or the authenticating agent or such successor corporation.

 

Any authenticating agent may at any time resign by giving written notice of resignation to the Trustee and to the Company.  The Trustee may at any time terminate the agency of any authenticating agent by giving written notice of termination to such authenticating agent and to the Company.  Upon receiving such a notice of resignation or upon such a termination, or in case at any time any authenticating agent shall cease to be eligible under this Section, the Trustee shall either promptly appoint a successor authenticating agent or itself assume the duties and obligations of the former authenticating agent under this Indenture and, upon such appointment of a successor authenticating agent, if made, shall give written notice of such appointment of a successor authenticating agent to the Company and shall mail notice of such appointment of a successor authenticating agent to all holders of Securities as the names and addresses of such holders appear on the Security Register.

 

The Company agrees to pay to the authenticating agent from time to time such reasonable compensation for its services as shall be agreed upon in writing between the Company and the authenticating agent.

 

The provisions of Sections 6.02, 6.03, 6.04 and 7.03 and this Section 13.11 shall be applicable to any authenticating agent.

 

Section 13.12                      Execution In Counterparts.  This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.  The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

 

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Section 13.13                      Severability.  In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

Section 13.14                      U.S.A. Patriot Act.  The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee.  The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.

 

Section 13.15                      Waiver of Right to Trial by Jury.  EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

ARTICLE 14
 REDEMPTION OR REPURCHASE OF SECURITIES

 

Section 14.01                      Redemption of Securities.  At any time on or after December 22, 2021 and prior to the Maturity Date, and subject to the proviso below, the Securities, in whole or in part, may be redeemed at the option of the Company, at any time and from time to time, upon notice as set forth in Section 14.02, at a redemption price in cash per security equal to one hundred percent (100%) of the principal amount of the Security, together with accrued and unpaid Interest, if any, to, but excluding, the date fixed for redemption; provided that if the redemption date falls after a record date and on or prior the corresponding interest payment date, then the full amount of Interest payable on such interest payment date shall be paid to the holders of record of such Securities on the applicable record date instead of the holders surrendering such Securities for redemption on such date.

 

Section 14.02                      Notice of Optional Redemption; Selection of Securities.  In case the Company shall desire to exercise the right to redeem all or, as the case may be, any part of the Securities pursuant to Section 14.01, it shall fix a date for redemption and it or, at its written request received by the Trustee not fewer than forty-five (45) days prior (or such shorter period of time as may be acceptable to the Trustee) to the date fixed for redemption, the Trustee in the name of and at the expense of the Company, shall mail or cause to be mailed a notice of such redemption not fewer than twenty (20) nor more than sixty (60) days prior to the redemption date to each holder of Securities so to be redeemed as a whole or in part at its last address as the same appears on the Security Register; provided that if the Company shall give such notice, it shall also give written notice of the redemption date to the Trustee.  Such delivery shall be by first-class mail or in accordance with the customary procedures of the Depositary.  The notice, if delivered in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not the holder receives such notice.  In any case, failure to give such notice by mail or any defect in the notice to the holder of any Security designated for redemption as a

 

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whole or in part shall not affect the validity of the proceedings for the redemption of any other Security.  Concurrently with the delivery of any such notice of redemption, the Company shall issue a press release announcing such redemption, the form and content of which press release shall be determined by the Company in its sole discretion.  The failure to issue any such press release or any defect therein shall not affect the validity of the redemption notice or any of the proceedings for the redemption of any Security called for redemption.

 

Each such notice of redemption shall specify the aggregate principal amount of Securities to be redeemed, the CUSIP number or numbers of the Securities being redeemed, the date fixed for redemption (which shall be a Business Day), the redemption price at which Securities are to be redeemed, the place or places of payment, that payment will be made upon presentation and surrender of such Securities, that Interest accrued to the date fixed for redemption will be paid as specified in said notice, and that on and after said date Interest thereon or on the portion thereof to be redeemed will cease to accrue.  Such notice shall also state the current Conversion Rate and Conversion Price and the date on which the right to convert such Securities or portions thereof into Common Stock will expire.  If fewer than all the Securities are to be redeemed, the notice of redemption shall identify the Securities to be redeemed (including CUSIP numbers, if any).  In case any Security is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that, on and after the redemption date, upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion thereof will be issued.

 

On or prior to the redemption date specified in the notice of redemption given as provided in this Section 14.02, the Company will deposit with the Trustee or with one or more Paying Agents (or, if the Company is acting as its own paying agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money in immediately available funds sufficient to redeem on the redemption date all the Securities (or portions thereof) so called for redemption (other than those theretofore surrendered for conversion into Common Stock) at the appropriate redemption price, together with accrued and unpaid Interest, if any, to, but excluding, the redemption date; provided that if such payment is made on the redemption date it must be received by the Trustee or Paying Agent, as the case may be, by 11:00 a.m. New York City time on such date.  The Company shall be entitled to retain any interest, yield or gain on amounts deposited with the Trustee or any Paying Agent pursuant to this Section 14.02 in excess of amounts required hereunder to pay the redemption price and accrued and unpaid Interest, if any, to, but excluding, the redemption date.  If any Security called for redemption is converted pursuant hereto prior to such redemption date, any money deposited with the Trustee or any Paying Agent or so segregated and held in trust for the redemption of such Security shall be paid to the Company upon its written request, or, if then held by the Company, shall be discharged from such trust.  Whenever any Securities are to be redeemed, the Company will give the Trustee written notice in the form of an Officers’ Certificate not fewer than forty-five (45) days (or such shorter period of time as may be acceptable to the Trustee) prior to the redemption date as to the aggregate principal amount of Securities to be redeemed.

 

If less than all of the outstanding Securities are to be redeemed, the Trustee shall select the Securities or portions thereof of the Global Security or the Securities in certificated form to be redeemed (in principal amounts of $1,000 or integral multiples thereof) among the holders of the Securities in compliance with the requirements of the principal national securities exchange,

 

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if any, on which the Securities are listed or, if the Securities are not so listed, on a pro rata basis, by lot or in accordance with any other method the Trustee deems fair and appropriate (and in compliance with this Indenture and applicable legal requirements and in accordance with procedures of the Depositary).  If any Security selected for partial redemption is submitted for conversion in part after such selection, the portion of such Security submitted for conversion shall be deemed (so far as may be possible) to be the portion to be selected for redemption.  The Securities (or portions thereof) so selected shall be deemed duly selected for redemption for all purposes hereof, notwithstanding that any such Security is submitted for conversion in part before the delivery of the notice of redemption.

 

Upon any redemption of less than all of the outstanding Securities, the Company and the Trustee may (but need not), solely for purposes of determining the pro rata allocation among such Securities as are unconverted and outstanding at the time of redemption, treat as outstanding any Securities surrendered for conversion during the period of fifteen (15) days next preceding the delivery of a notice of redemption and may (but need not) treat as outstanding any Security authenticated and delivered during such period in exchange for the unconverted portion of any Security converted in part during such period.

 

Section 14.03                      Payment of Securities Called For Redemption by the Company.  If notice of redemption has been given as provided in Section 14.02, the Securities or portion of Securities with respect to which such notice has been given shall, unless converted into Common Stock pursuant to the terms hereof, become due and payable on the date fixed for redemption and at the place or places stated in such notice at the applicable redemption price, together with Interest accrued to, but excluding, the redemption date, and on and after said date (unless the Company shall default in the payment of such Securities at the redemption price, together with Interest accrued to said date), Interest on the Securities or portion of Securities so called for redemption shall cease to accrue and, after the close of business on the Business Day immediately preceding the redemption date (unless the Company shall default in the payment of such Securities at the redemption price, together with Interest accrued to said date) such Securities shall cease to be convertible into Common Stock and, except as provided in Section 6.05 and Section 11.04, to be entitled to any benefit or security under this Indenture, and the holders thereof shall have no right in respect of such Securities except the right to receive the redemption price thereof and unpaid Interest, if any, to, but excluding, the redemption date. On presentation and surrender of such Securities at a place of payment in said notice specified, the said Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable redemption price, together with Interest accrued thereon to, but excluding, the redemption date; provided that if the redemption date falls after a record date and on or prior the corresponding interest payment date, then the Interest payable on such interest payment date shall be paid to the holders of record of such Securities on the applicable record date instead of the holders surrendering such Securities for redemption on such date.

 

Upon presentation of any Security redeemed in part only, the Company shall execute and the Trustee shall authenticate and make available for delivery to the holder thereof, at the expense of the Company, a new Security or Securities, of authorized denominations, in principal amount equal to the unredeemed portion of the Securities so presented.

 

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Notwithstanding the foregoing, the Trustee shall not redeem any Securities or mail any notice of redemption (i) during the continuance of a default in payment of Interest or premium, if any, on the Securities and (ii) if the principal amount of the Securities has been accelerated.

 

Section 14.04                      Conversion Arrangement on Call for Redemption.  In connection with any redemption of Securities, the Company may arrange for the purchase and conversion of any Securities by an agreement with one or more investment banks or other purchasers to purchase such Securities by paying to the Trustee in trust for the Securityholders, on or before the date fixed for redemption, an amount not less than the applicable redemption price, together with Interest accrued to, but excluding, the date fixed for redemption, of such Securities.  Notwithstanding anything to the contrary contained in this Article 14, the obligation of the Company to pay the redemption price of such Securities, together with Interest accrued to, but excluding, the date fixed for redemption, shall be deemed to be satisfied and discharged to the extent such amount is so paid by such purchasers.  If such an agreement is entered into, a copy of which will be filed with the Trustee prior to the date fixed for redemption, any Securities not duly surrendered for conversion by the holders thereof may, at the option of the Company, be deemed, to the fullest extent permitted by law, acquired by such purchasers from such holders and (notwithstanding anything to the contrary contained in Article 15) surrendered by such purchasers for conversion, all as of immediately prior to the close of business on the date fixed for redemption (and the right to convert any such Securities shall be extended through such time), subject to payment of the above amount as aforesaid.  At the written direction of the Company, the Trustee shall hold and dispose of any such amount paid to it in the same manner as it would monies deposited with it by the Company for the redemption of Securities.  Without the Trustee’s prior written consent, no arrangement between the Company and such purchasers for the purchase and conversion of any Securities shall increase or otherwise affect any of the powers, duties, responsibilities or obligations of the Trustee as set forth in this Indenture.

 

Section 14.05                      Repurchase at Option of Securityholders upon a Fundamental Change.

 

(a)                                 If there shall occur a Fundamental Change at any time prior to the Maturity Date of the Securities, then each Securityholder shall have the right, at such Securityholder’s option, to require the Company to repurchase any or all of such Securityholder’s Securities or any portion thereof that is an integral multiple of $1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty (20) Business Days and not more than thirty-five (35) Business Days after the date of the Fundamental Change Notice (as defined in Section 14.05(b)) of such Fundamental Change at a repurchase price equal to one hundred percent (100%) of the principal amount thereof, together with accrued and unpaid Interest, if any, to, but excluding, the Fundamental Change Repurchase Date; provided that if such Fundamental Change Repurchase Date falls after a record date and on or prior to the corresponding interest payment date, then the full amount of Interest payable on such interest payment date shall be paid to the holders of record of the Securities on the applicable record date instead of the holders surrendering the Securities for purchase on such Fundamental Change Repurchase Date.  Repurchases of Securities under this Section 14.05 shall be made, at the option of the holder thereof, upon:

 

(i)                                     delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Fundamental Change

 

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Repurchase Right Notice”) in the form set forth on the reverse of the Security prior to the close of business on the Fundamental Change Repurchase Date; and

 

(ii)                                  delivery or book-entry transfer of the Securities to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change Repurchase Right Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan as provided in Section 3.02 or at any other office of the Paying Agent, such delivery being a condition to receipt by the holder of the repurchase price therefor; provided that such repurchase price shall be so paid pursuant to this Section 14.05 only if the Security so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Right Notice.

 

The Company shall repurchase from each holder thereof that exercises the right to repurchase, pursuant to this Section 14.05, a portion of a Security, if the principal amount of such portion is $1,000 or an integral multiple of $1,000.  Provisions of this Indenture that apply to the repurchase of all of a Security also apply to the repurchase of such portion of such Security.

 

Any repurchase by the Company contemplated pursuant to the provisions of this Section 14.05 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Fundamental Change Repurchase Date and the time of the book-entry transfer or delivery of the Security.

 

Notwithstanding anything herein to the contrary, any holder delivering to the Trustee (or other Paying Agent appointed by the Company) the Fundamental Change Repurchase Right Notice contemplated by this Section 14.05 shall have the right to withdraw such Fundamental Change Repurchase Right Notice at any time prior to the close of business on the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Trustee (or other Paying Agent appointed by the Company) in accordance with Section 14.05(c) below.

 

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

 

(b)                                 On or before the 20th Business Day after the occurrence of a Fundamental Change, the Company or at its written request (which must be received by the Trustee at least five (5) Business Days prior to the date the Trustee is requested to give notice as described below, unless the Trustee shall agree in writing to a shorter period), the Trustee, in the name of and at the expense of the Company, shall deliver or cause to be delivered to all holders of record on the date of the Fundamental Change a notice (the “Fundamental Change Notice”) of the occurrence of such Fundamental Change and of the right at the option of the holders to require the Company to repurchase arising as a result thereof.  Such delivery shall be by first-class mail or in accordance with the customary procedures of the Depositary.  If the Company shall give such notice, the Company shall also deliver a copy of the Fundamental Change Notice to the Trustee at such time as it is delivered to Securityholders.  Concurrently with the delivery of any Fundamental Change Notice, the Company shall publish a notice in a newspaper of general

 

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circulation in The City of New York or on the Company’s website or through such other public medium as the Company may use at such time announcing such Fundamental Change referred to in the Fundamental Change Notice, the form and content of which notice shall contain substantially the same information as is required to be included in the Fundamental Change Notice, as set forth in the following paragraph.  The failure to issue any such notice or any defect therein shall not affect the validity of the Fundamental Change Notice or any proceedings for the repurchase of any Security which any Securityholder may elect to require the Company to repurchase as provided in this Section 14.05.

 

Each Fundamental Change Notice shall specify the circumstances constituting the Fundamental Change, the date of the Fundamental Change, the Fundamental Change Repurchase Date, the price at which the Company is offering to repurchase Securities, that the holder must elect to exercise the repurchase right on or prior to the close of business on the fifth Business Day prior to the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”), that the holder shall have the right to withdraw any Securities surrendered prior to the close of business on the Business Day prior to the Fundamental Change Repurchase Date, a description of the procedure which a Securityholder must follow to exercise the repurchase right and to withdraw any surrendered Securities, the place or places where the holder is to surrender such holder’s Securities, the amount of Interest accrued on each Security to the Fundamental Change Repurchase Date and the CUSIP number or numbers of the Securities (if then generally in use) and include a form of Fundamental Change Repurchase Right Notice.

 

No failure of the Company to give the foregoing notices and no defect therein shall limit the Securityholders’ rights to require the Company to repurchase the Securities or affect the validity of the proceedings for the repurchase of the Securities pursuant to this Section 14.05.

 

(c)                                  A Fundamental Change Repurchase Right Notice may be withdrawn by means of a written notice of withdrawal delivered to the office of the Trustee (or other Paying Agent appointed by the Company) in accordance with the Fundamental Change Repurchase Right Notice at any time prior to the close of business on the Business Day prior to the Fundamental Change Repurchase Date, specifying:

 

(i)                                     the certificate number, if any, of the Security in respect of which such notice of withdrawal is being submitted, or the appropriate Depositary information if the Security in respect of which such notice of withdrawal is being submitted is represented by a Global Security,

 

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

 

(iii)                               the principal amount, if any, of such Security that remains subject to the original Fundamental Change Repurchase Right Notice and that has been or will be delivered for purchase by the Company.

 

A written notice of withdrawal of a Fundamental Change Repurchase Right Notice may be in the form set forth in the preceding paragraph or may be in the form of a conditional withdrawal contained in a Fundamental Change Repurchase Right Notice pursuant to the terms

 

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of Section 14.05. Securities held in book entry from shall be withdrawn in accordance with the Depositary’s applicable procedures.

 

(d)                                 No later than 11:00 a.m. New York City time at least one (1) Business Day prior to the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own paying agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money sufficient to purchase on the Fundamental Change Repurchase Date all the Securities to be purchased on such date at the appropriate repurchase price, together with accrued and unpaid Interest, if any, to, but excluding, the Fundamental Change Repurchase Date.  Subject to receipt of funds and/or Securities by the Trustee (or other Paying Agent appointed by the Company), payment for Securities surrendered for purchase (and not withdrawn) prior to the Fundamental Change Expiration Time will be made promptly (but in no event more than five (5) Business Days) following the later of (x) the Fundamental Change Repurchase Date with respect to such Security (provided the holder has satisfied the conditions in this Section 14.05) and (y) the time of book-entry transfer or the delivery of such Security to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by this Section 14.05) by mailing checks for the amount payable to the holders of such Securities entitled thereto as they shall appear in the Security Register.

 

If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Fundamental Change Repurchase Date all the Securities or portions thereof that are to be purchased as of the Fundamental Change Repurchase Date, then on or after the Fundamental Change Repurchase Date (i) the Securities will cease to be outstanding, (ii) Interest on the Securities will cease to accrue, and (iii) all other rights of the holders of such Securities will terminate, whether or not book-entry transfer of the Securities has been made or the Securities have been delivered to the Trustee or Paying Agent, other than the right to receive the repurchase price upon delivery of the Securities.

 

Section 14.06                      Securities Repurchased in Part.  Upon presentation of any Security repurchased pursuant to Section 14.05 or repurchased pursuant to Section 14.08, only in part, the Company shall execute and the Trustee shall authenticate and make available for delivery to the holder thereof, at the expense of the Company, a new Security or Securities, of any authorized denomination, in aggregate principal amount equal to the unrepurchased portion of the Securities presented.

 

Section 14.07                      Repayment to the Company.  To the extent that the aggregate amount of cash or money deposited by the Company pursuant to Section 14.05(d) or 14.08(e) exceeds the aggregate repurchase price of the Securities or portions thereof which the Company is obligated to repurchase as of the Fundamental Change Repurchase Date or repurchase as of the Repurchase Date, as applicable, then, unless otherwise agreed in writing with the Company, promptly after the Business Day following the Fundamental Change Repurchase Date or the Repurchase Date, as applicable, the Trustee shall return any such excess to the Company together with interest, if any, thereon.

 

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Section 14.08                      Repurchase of Securities at Option of the Holder on Specified Dates.

 

(a)                                 Any holder may require the Company to repurchase any outstanding Securities for cash on December 15, 2021, December 15, 2026, and December 15, 2031 (each a “Repurchase Date”) at a repurchase price per Security equal to one hundred percent (100%) of the aggregate principal amount of the Security, together with any accrued and unpaid Interest, if any, to but excluding, the applicable Repurchase Date (the “Repurchase Price”); provided that if such Repurchase Date falls after a record date and on or prior to the corresponding interest payment date, then the full amount of Interest payable on such interest payment date shall be paid to the holders of record of such Securities on the applicable record date instead of the holders surrendering such Securities for repurchase on such date.

 

(b)                                 The Company shall give written notice (the “Repurchase Date Notice”) of the applicable Repurchase Date by notice delivered by first-class mail or in accordance with the customary procedures of the Depositary to the Trustee and to each holder (at its address shown in the register of the Security Registrar) and to beneficial owners as required by applicable law, not less than twenty-five (25) Business Days prior to each Repurchase Date.  Each Repurchase Date Notice shall include a repurchase notice (a “Repurchase Notice”) and shall state:

 

(1)                                 the Repurchase Price, the Repurchase Date, and the current Conversion Rate and Conversion Price in effect;

 

(2)                                 the name and address of the Paying Agent and the Conversion Agent;

 

(3)                                 that Securities as to which a Repurchase Date Notice has been given may be converted only to the extent that the Repurchase Notice has been withdrawn in accordance with the terms of this Indenture;

 

(4)                                 that Securities must be surrendered to the Paying Agent to collect payment;

 

(5)                                 that the Repurchase Price for any Security as to which a Repurchase Date Notice has been given and not withdrawn will be paid promptly following the later of the Repurchase Date and the time of surrender of such Security as described in subclause (4) above;

 

(6)                                 the procedures the holder must follow to exercise rights under this Section 14.08 and a brief description of those rights;

 

(7)                                 briefly, the conversion rights of the Securities;

 

(8)                                 the procedures for withdrawing a Repurchase Notice;

 

(9)                                 that, unless the Company defaults in making payment on Securities for which a Repurchase Notice has been submitted, interest, if any, on such Securities will cease to accrue on and after the Repurchase Date; and

 

(10)                          the CUSIP number of the Securities.

 

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If any of the Securities are to be repurchased in the form of a Global Security, the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to repurchases.

 

At the Company’s request, the Trustee shall give such Repurchase Date Notice on behalf of the Company and at the Company’s expense; provided, however, that, in all cases, the text of such Repurchase Date Notice shall be prepared by the Company.

 

(c)                                  Repurchases of Securities by the Company pursuant to this Section 14.08 shall be made, at the option of the holder thereof, upon:

 

(1)                                 delivery to the Paying Agent by the holder of the Repurchase Notice at any time from the open of business on the date that is twenty-five (25) Business Days prior to the applicable Repurchase Date until the close of business on the Business Day prior to such Repurchase Date stating:

 

(i)                                     if certificated Securities have been issued, the certificate number of the Security which the holder will deliver to be purchased (or, if a holder’s Securities are not certificated, the Repurchase Date Notice must comply with applicable procedures of the Depositary),

 

(ii)                                  the portion (which may be 100%) of the principal amount of the Securities which the holder will deliver to be repurchased, which portion must be in a principal amount of $1,000 or an integral multiple thereof, and

 

(iii)                               that such Securities shall be repurchased as of the applicable Repurchase Date pursuant to the terms and conditions specified in the Securities and in this Section 14.08.

 

(2)                                 delivery of such Security to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Repurchase Date Notice (together with all necessary endorsements) at the offices of the Trustee (or other Paying Agent appointed by the Company).  Delivery of such Security shall be a condition to receipt by the holder of the Repurchase Price therefor.  The Repurchase Price shall be paid pursuant to this Section 14.08 only if the Security delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Repurchase Notice, as determined by the Company.

 

(d)                                 Notwithstanding anything herein to the contrary, any holder delivering to the Trustee or Paying Agent the Repurchase Notice contemplated by this Section 14.08 shall have the right to withdraw such Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Repurchase Date by delivery of a written notice of withdrawal to the Trustee or Paying Agent specifying:

 

(1)                                 if certificated Securities have been issued, the certificate number of the Security in respect of which such notice of withdrawal is being submitted (or, if a holder’s Securities are not certificated, the withdrawal notice must comply with the applicable procedures of the Depositary),

 

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(2)                                 the aggregate principal amount of the Security with respect to which such notice of withdrawal is being submitted, and

 

(3)                                 the aggregate principal amount, if any, of such Security which remains subject to the original Repurchase Notice and which has been or will be delivered for purchase by the Company.

 

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

 

(e)                                  On or before 11:00 a.m., New York City time on the applicable Repurchase Date, the Company shall deposit with the Trustee or with the Paying Agent (or if the Company or an Affiliate of the Company is acting as the paying agent, shall segregate and hold in trust) an amount of money (in immediately available funds if deposited on such Repurchase Date) sufficient to pay the aggregate Repurchase Price of all the Securities or portions thereof which are to be purchased as of the applicable Repurchase Date.  The manner in which the deposit required by this Section 14.08 is made by the Company shall be at the option of the Company; provided that such deposit shall be made in a manner such that the Trustee or a Paying Agent shall have immediately available funds on the applicable Repurchase Date.

 

If the Trustee or a Paying Agent holds, in accordance with the terms hereof, money sufficient to pay the Repurchase Price of any Security for which a Repurchase Notice has been tendered and not withdrawn on the applicable Repurchase Date, then, on the applicable Repurchase Date, such Security will cease to be outstanding, whether or not the Security is delivered to the Paying Agent, and the rights of the holder in respect thereof shall terminate (other than the right to receive the Repurchase Price as aforesaid) and interest will cease to accrue on such Security.

 

The Repurchase Price shall be paid promptly to such holder with respect to Securities for which a Repurchase Notice has been tendered and not withdrawn, subject to receipt of funds by the Trustee or Paying Agent, promptly following the later of (x) the Repurchase Date with respect to such Security (provided the conditions in this Section 14.08 have been satisfied) and (y) the time of book-entry transfer or the delivery of such Security to the Trustee or Paying Agent by the holder thereof in the manner required by this Section 14.08.  Securities in respect of which a Repurchase Notice has been given by the holder thereof may not be converted pursuant to Article 15 on or after the date of the delivery of such Repurchase Notice, unless such Repurchase Notice has first been validly withdrawn as specified in this Section 14.08.

 

The Company shall purchase from the holder thereof, pursuant to this Section 14.08, a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000.  Provisions of this Indenture that apply to the purchase of all of a Security also apply to the purchase of such portion of such Security.

 

(f)                                   There shall be no repurchase of any Securities pursuant to this Section 14.08 if there has occurred (prior to, on or after as the case may be, the giving, by the holders of such Securities, of the required Repurchase Notice) and is continuing an Event of Default (other than a default in the payment of the Repurchase Price) and the principal amount of the Securities has

 

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been accelerated in accordance with this Indenture and such acceleration has not been rescinded.  The Trustee or Paying Agent will promptly return to the respective holders thereof any Securities (x) with respect to which a Repurchase Notice has been withdrawn in compliance with this Indenture, or (y) held by it during the continuance of an Event of Default (other than a default in the payment of the Repurchase Price) in which case, upon such return, the Repurchase Notice with respect thereto shall be deemed to have been withdrawn.

 

ARTICLE 15
 CONVERSION OF SECURITIES

 

Section 15.01                      Conversion Privilege.  Subject to and upon compliance with the provisions of this Article 15, each holder of a Security shall have the right, at such holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or a multiple thereof) of such Security (i) subject to satisfaction of the conditions described in Section 15.01(a), at any time prior to the close of business on the Business Day immediately preceding June 15, 2036, under the circumstances and during the periods set forth in Section 15.01(a), and (ii) regardless of the conditions described in Section 15.01(a), on or after June 15, 2036, and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 22.6388 shares of Common Stock (subject to adjustment as provided in this Article 15, the “Conversion Rate”) per $1,000 principal amount of Securities (subject to, and in accordance with, the settlement provisions of Section 15.02, the “Conversion Obligation”) (equivalent to an initial Conversion Price of approximately $44.17 per share).

 

(a)                                 (i) Prior to the close of business on the Business Day immediately preceding June 15, 2036, a Securityholder may surrender all or any portion of its Securities for conversion at any time during the five (5) Business Day period immediately after any five (5) consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Securities, as determined following a request by a holder of Securities in accordance with this Section 15.01(a)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each such Trading Day.  The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this Section 15.01(a)(i) and the definition of Trading Price set forth in this Indenture.  The Company shall provide written notice to the Bid Solicitation Agent of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for each.  The Bid Solicitation Agent shall have no obligation to determine the Trading Price per $1,000 principal amount of Securities unless the Company has requested such determination, and the Company shall have no obligation to make such request unless a holder of Securities of at least $1,000,000 in aggregate principal amount provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Securities would be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate, at which time the Company shall instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Securities beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Securities is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate.  If 

 

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the Company does not instruct the Bid Solicitation Agent in writing to determine the Trading Price per $1,000 principal amount of Securities when obligated as provided in the preceding sentence, or if the Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, then, in either case, the Trading Price per $1,000 principal amount of Securities shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure.  If the Trading Price condition set forth above has been met, the Company shall so notify the Securityholders, the Trustee and the Conversion Agent (if other than the Trustee) in writing.  If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Securities is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify the holders of the Securities, the Trustee and the Conversion Agent (if other than the Trustee).

 

(ii)                                  If, prior to the close of business on the Business Day immediately preceding June 15, 2036, the Company elects to:

 

(A)                   issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan) entitling them, for a period of not more than forty-five (45) calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or

 

(B)                   distribute to all or substantially all holders of the Common Stock the Company’s assets, debt securities or rights to purchase securities of the Company, which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution,

 

then, in either case, the Company shall notify all holders of the Securities, the Trustee and the Conversion Agent (if other than the Trustee) at least twenty-five (25) Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution.  Once the Company has given such notice, a Securityholder may surrender all or any portion of its Securities for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if the Securities are not otherwise convertible at such time.

 

(iii)                               If (i) a transaction or event that constitutes (x) a Fundamental Change or (y) a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding June 15, 2036, regardless of whether a Securityholder has the right to require the Company to repurchase the Securities pursuant to Section 14.05, or (ii) the Company is a party to a consolidation, merger, binding share exchange, or transfer or lease of all 

 

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or substantially all of its assets prior to the close of business on the Business Day immediately preceding June 15, 2036, in each case pursuant to which the Common Stock would be converted into cash, securities or other assets, then, in each case, all or any portion of a holder’s Securities may be surrendered for conversion at any time from or after the date that is twenty-five (25) Scheduled Trading Days prior to the anticipated effective date of the transaction (or, if later, the Business Day after the Company gives notice of such transaction) until thirty-five (35) Trading Days after the actual effective date of such transaction, or if such transaction also constitutes a Fundamental Change, until the related Fundamental Change Repurchase Date.  The Company shall notify Securityholders, the Trustee and the Conversion Agent (if other than the Trustee) (i) at least twenty-five (25) Scheduled Trading Days prior to the anticipated effective date of such transaction, or (ii) if later, the date the Company publicly announces such transaction; provided that the Company shall deliver such notice in no event later than the actual effective date of such transaction.

 

(iv)                              If any Securities have been called for redemption pursuant to Section 14.02, such Securities may be converted, at any time until the close of business on the Business Day immediately preceding the redemption date, unless the Company fails to pay the redemption price of such Securities.  A Security in respect of which a holder has exercised the repurchase right upon a Fundamental Change pursuant to Section 14.05 or on a Repurchase Date pursuant to Section 14.08 may be converted only if such holder withdraws its election in accordance with Section 14.05 or Section 14.08, as applicable.

 

(v)                                 Prior to the close of business on the Business Day immediately preceding June 15, 2036, a Securityholder may surrender all or any portion of its Securities for conversion at any time during any fiscal quarter commencing after the fiscal quarter ending on January 29, 2017 (and only during such fiscal quarter), if the Last Reported Sale Price of the Common Stock for at least twenty (20) Trading Days (whether or not consecutive) during the period of thirty (30) consecutive Trading Days ending on the last Trading Day of the immediately preceding fiscal quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day.  The Company, shall determine at the beginning of each fiscal quarter commencing after January 29, 2017, whether the Securities may be surrendered for conversion in accordance with this clause (iv) and shall notify the Trustee if the Securities become convertible in accordance with this clause (iv) and the Company shall notify the holders of the Securities.

 

Section 15.02                      Conversion Procedure; Settlement Upon Conversion.

 

(a)                                 Subject to this Section 15.02, Section 15.03(a) and Section 15.07(a), upon conversion of any Security, the Company shall pay or deliver, as the case may be, to the converting Securityholder, in respect of each $1,000 principal amount of Securities being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with Section 15.02(j) (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering  any fractional share of Common Stock in accordance with Section 15.02(j) (“Combination Settlement”), at its election, as set forth in this Section 15.02.

 

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(i)                                     All conversions occurring during the period from, and including, (x) June 15, 2036, to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date or (y) the date a Fundamental Change Repurchase Right Notice has been delivered with respect to the Securities that have been converted, in each case, shall be settled using the same Settlement Method.

 

(ii)                                  Except for any conversions described in Section 15.02(a)(i), the Company shall use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates.

 

(iii)                               If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement Notice to converting Securityholders no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or, in the case of any conversions occurring during the period from, and including, June 15, 2036, to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, no later than the close of business on Business Day immediately preceding June 15, 2036).  If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Securities shall be equal to $1,000.  Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Securities.  If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Securities in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Securities shall be deemed to be $1,000.

 

(iv)                              The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Securities (the “Settlement Amount”) shall be computed as follows:

 

(A)                   if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver to the converting Securityholder in respect of each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;

 

(B)                   if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to the

 

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converting Securityholder in respect of each $1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the twenty (20) consecutive Trading Days during the related Observation Period; and

 

(C)                   if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the twenty (20) consecutive Trading Days during the related Observation Period.

 

(v)                                 The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period.  Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock.  The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.

 

(b)                                 Subject to Section 15.02(e), before any holder of a Security shall be entitled to convert a Security as set forth above, such Securityholder shall (i) in the case of a Global Security, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Securityholder is not entitled as set forth in Section 15.02(h) and (ii) in the case of Security in certificated form (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the form of Notice of Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Securities to be converted and the name or names (with addresses) in which such Securityholder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Securities, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Securityholder is not entitled as set forth in Section 15.02(h).  The Trustee (and, if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 15 on the Conversion Date for such conversion.  No Notice of Conversion with respect to any Securities may be surrendered by a holder thereof if such Securityholder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Securities and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 14.05.

 

If more than one Security shall be surrendered for conversion at one time by the same Securityholder, the Conversion Obligation with respect to such Securities shall be computed on

 

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the basis of the aggregate principal amount of the Securities (or specified portions thereof to the extent permitted thereby) so surrendered.

 

(c)                                  A Security shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Securityholder has complied with the requirements set forth in Section 15.02(b).  The Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the third (3rd) Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any Conversion Date occurring on or after June 15, 2036, the Company shall settle any such conversion on the Maturity Date), or on the third (3rd) Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method.  If any shares of Common Stock are due to converting Securityholders, the Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such Securityholder, or such Securityholder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which such Securityholder shall be entitled in satisfaction of the Company’s Conversion Obligation.

 

(d)                                 In case any Security shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the holder of the Security so surrendered a new Security or Securities in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Security, without payment of any service charge by the converting Securityholder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the holder of the new Securities issued upon such conversion being different from the name of the holder of the old Securities surrendered for such conversion.

 

(e)                                  If a Securityholder submits a Security for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Securityholder requests such shares to be issued in a name other than the Securityholder’s name, in which case the Securityholder shall pay that tax.  The Conversion Agent, at the direction of the Company, may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Securityholder’s name until the Company receives a sum sufficient to pay any tax that is due by such Securityholder in accordance with the immediately preceding sentence.

 

(f)                                   Except as provided in Section 15.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any Security as provided in this Article 15.

 

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

 

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(h)                                 Upon conversion, a Securityholder shall not receive any separate cash payment for accrued and unpaid Interest, if any, except as set forth below.  The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Security and accrued and unpaid Interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid Interest, if any, to, but excluding, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited.  Upon a conversion of Securities into a combination of cash and shares of Common Stock, accrued and unpaid Interest, if any, will be deemed to be paid first out of the cash paid upon such conversion.  Notwithstanding the foregoing, if Securities are converted after the close of business on a record date, holders of such Securities as of the close of business on such record date will receive the full amount of interest payable on such Securities on the corresponding Interest Payment Date notwithstanding the conversion.  Securities surrendered for conversion during the period from the close of business on any record date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Securities so converted; provided that no such payment shall be required (1) for conversions following the record date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a record date and on or prior to the Scheduled Trading Day immediately succeeding the corresponding Interest Payment Date; or (3) to the extent any Defaulted Interest, if any, exists at the time of conversion with respect to such Security.  Therefore, for the avoidance of doubt, all Securityholders of record on the record date immediately preceding the Maturity Date and any Fundamental Change Repurchase Date as described in the immediately preceding sentence shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date regardless of whether their Securities have been converted following such record date.

 

(i)                                     The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be.  Upon a conversion of Securities, such Person shall no longer be a holder of such Securities surrendered for conversion.

 

(j)                                    The Company shall not issue any fractional share of Common Stock upon conversion of the Securities and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the last day of the applicable Observation Period. For each Security surrendered for conversion, if the Company has elected (or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.

 

Section 15.03                      Increased Conversion Rate Applicable to Certain Securities Surrendered in Connection with Make-Whole Fundamental Changes.  If a Make-Whole Fundamental Change occurs or becomes effective prior to December 22, 2021, and a Securityholder elects to convert its Securities in connection with such Make-Whole Fundamental Change, the Company shall, under the circumstances described below, increase the Conversion Rate for the Securities so

 

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surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”), as described below.  A conversion of Securities shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Notice of Conversion is received by the Conversion Agent from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for the parenthetical contained in clause (iii) of the definition of Change in Control, the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change).

 

(a)                                 Upon surrender of Securities for conversion in connection with a Make-Whole Fundamental Change pursuant to Section 15.01(a)(iii), the Company shall, at its option, satisfy the related Conversion Obligation by Physical Settlement, Cash Settlement or Combination Settlement in accordance with Section 15.02 based on the Conversion Rate as increased to reflect the Additional Shares pursuant to the table below; provided, however, that if, at the effective time of a Make-Whole Fundamental Change described in clause (iii) of the definition of Change in Control, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash, for any conversion of Securities following the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount of converted Securities equal to the Conversion Rate (including any adjustment for Additional Shares), multiplied by such Stock Price.  In such event, the Conversion Obligation shall be determined and paid to Securityholders in cash on the third (3rd) Business Day following the Conversion Date. The Company shall notify the Securityholders of Securities of the Effective Date of any Make-Whole Fundamental Change no later than five (5) Business Days after such Effective Date.

 

(b)                                 The number of Additional Shares, if any, by which the Conversion Rate shall be increased shall be determined by reference to the table below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (the “Effective Date”) and the price (the “Stock Price”) paid (or deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental Change.  If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (iii) of the definition of Change in Control, the Stock Price shall be the cash amount paid per share.  Otherwise, the Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock over the five (5) Trading Day period ending on, and including, the Trading Day immediately preceding the Effective Date of the Make-Whole Fundamental Change.  The Board of Directors shall make appropriate adjustments to the Stock Price, in its good faith determination, to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date of the event occurs, during such five (5) consecutive Trading Day period.

 

(c)                                  The Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion Rate of the Securities is otherwise adjusted.  The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment giving rise to the Stock Price adjustment and the denominator of which

 

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is the Conversion Rate as so adjusted.  The number of Additional Shares set forth in the table below shall be adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section 15.04.

 

(d)                                 The following table sets forth the number of Additional Shares of Common Stock by which the Conversion Rate shall be increased per $1,000 principal amount of Securities pursuant to this Section 15.03 for each Stock Price and Effective Date set forth below:

 

	
 
    	
 
    	
Share Price ($)
    	
 
    
	
Effective Date
    	
 
    	
$32.72
    	
 
    	
$35.00
    	
 
    	
$40.00
    	
 
    	
$44.17
    	
 
    	
$50.00
    	
 
    	
$57.42
    	
 
    	
$70.00
    	
 
    	
$90.00
    	
 
    	
$110.00
    	
 
    	
$125.00
    	
 
    	
$150.00
    	
 
    
	
December 21,   2016
    	
 
    	
7.9235
    	
 
    	
6.9126
    	
 
    	
5.0546
    	
 
    	
3.9857
    	
 
    	
2.9152
    	
 
    	
2.0097
    	
 
    	
1.1248
    	
 
    	
0.4843
    	
 
    	
0.2157
    	
 
    	
0.1141
    	
 
    	
0.0000
    	
 
    
	
December 15,   2017
    	
 
    	
7.9235
    	
 
    	
6.8921
    	
 
    	
5.0092
    	
 
    	
3.8840
    	
 
    	
2.7725
    	
 
    	
1.8512
    	
 
    	
0.9807
    	
 
    	
0.3860
    	
 
    	
0.1543
    	
 
    	
0.0720
    	
 
    	
0.0000
    	
 
    
	
December 15,   2018
    	
 
    	
7.9235
    	
 
    	
6.8610
    	
 
    	
4.8666
    	
 
    	
3.6805
    	
 
    	
2.5320
    	
 
    	
1.6096
    	
 
    	
0.7822
    	
 
    	
0.2658
    	
 
    	
0.0867
    	
 
    	
0.0331
    	
 
    	
0.0000
    	
 
    
	
December 15,   2019
    	
 
    	
7.9235
    	
 
    	
6.7580
    	
 
    	
4.5535
    	
 
    	
3.3016
    	
 
    	
2.1300
    	
 
    	
1.2402
    	
 
    	
0.5142
    	
 
    	
0.1305
    	
 
    	
0.0285
    	
 
    	
0.0059
    	
 
    	
0.0000
    	
 
    
	
December 15,   2020
    	
 
    	
7.9235
    	
 
    	
6.3626
    	
 
    	
3.9068
    	
 
    	
2.5773
    	
 
    	
1.4264
    	
 
    	
0.6656
    	
 
    	
0.1811
    	
 
    	
0.0206
    	
 
    	
0.0000
    	
 
    	
0.0000
    	
 
    	
0.0000
    	
 
    
	
December 22,   2021
    	
 
    	
7.9235
    	
 
    	
5.9327
    	
 
    	
2.3612
    	
 
    	
0.0010
    	
 
    	
0.0000
    	
 
    	
0.0000
    	
 
    	
0.0000
    	
 
    	
0.0000
    	
 
    	
0.0000
    	
 
    	
0.0000
    	
 
    	
0.0000
    	
 
    


 

The exact Stock Prices and Effective Dates may not be set forth in the table above, in which case:

 

(i)                                     if the Stock Price is between two Stock Prices in the table above or the Effective Date is between two Effective Dates in the table above, the number of Additional Shares by which the Conversion Rate shall be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the earlier and later Effective Dates, as applicable, based on a 365-day year;

 

(ii)                                  if the Stock Price is greater than $150.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above), no Additional Shares shall be added to the Conversion Rate; and

 

(iii)                               if the Stock Price is less than $32.72 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above), no Additional Shares shall be added to the Conversion Rate.

 

Notwithstanding the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of Securities exceed 30.5623 shares of Common Stock, subject to adjustment in the same manner as the Conversion Rate pursuant to Section 15.04.

 

(e)                                  Nothing in this Section 15.03 shall prevent an adjustment to the Conversion Rate pursuant to Section 15.04 in respect of a Make-Whole Fundamental Change.

 

Section 15.04                      Adjustment of Conversion Rate.  The Conversion Rate shall be adjusted, without duplication, from time to time by the Company in accordance with this Section 15.04, except that the Company will not make any adjustments if holders of the Securities are entitled to participate on the relevant distribution or payment date, as a result of holding the Securities, in the transactions described in Section 15.04(b), Section 15.04(c) and Section 15.04(d) below, without having to convert their Securities (based on the Conversion Rate in effect immediately before the relevant Ex-Dividend Date) or holders of Common Stock are not eligible to participate in the relevant transaction described below in this Section 15.04.

 

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

 



 

where,

 

CR0                         =                                         the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such Common Stock share split or Common Stock share combination, as the case may be;

 

CR’                          =                                         the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or the Effective Date of such Common Stock split or Common Stock combination, as the case may be;

 

OS0                           =                                         the number of shares of Common Stock outstanding immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution, or the Effective Date of such Common Stock split or Common Stock combination, as the case may be; and

 

OS’                            =                                         the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, Common Stock split or Common Stock combination, as the case may be.

 

Any adjustment made under this Section 15.04(a) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open of business on the Effective Date for such share split or share combination, as applicable.  If any dividend or distribution of the type described in this Section 15.04(a) is declared but not so paid or made, or any share split or combination of the type described in this Section 15.04(a) is announced but the outstanding shares of Common Stock are not split or combined, as the case may be, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, or not to split or combine the outstanding shares of Common Stock, as the case may be, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared or such share split or combination had not been announced.

 

(b)                                 If the Company, at any time or from time to time while any of the Securities are outstanding, distributes to all or substantially all holders of Common Stock any rights (including subscription bonuses) or warrants entitling them for a period of not more than forty-five (45) calendar days from the record date for such rights or warrants to subscribe for or purchase shares of Common Stock at an exercise price per share of Common Stock less than the average of the Last Reported Sales Prices of Common Stock for the ten (10) consecutive Trading Day period

 

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ending on, and including, the Trading Day immediately preceding the date of announcement of such distribution, the Conversion Rate shall be adjusted based on the following formula:

 



 

where,

 

CR0                         =                                         the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;

 

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

 

OS0                           =                                         the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such distribution;

 

X                                       =                                         the total number of shares of Common Stock issuable pursuant to such rights or warrants; and

 

Y                                       =                                         the number of shares of Common Stock equal to the aggregate price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices of the Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance.

 

Any increase made under this Section 15.04(b) shall be made successively whenever any such rights or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance.  To the extent such rights or warrants are not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted, as of such expiration date, to the Conversion Rate which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock actually delivered.  If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such rights or warrants had not been issued.

 

For purposes of this Section 15.04(b) and Section 15.01(a)(ii)(A), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of the Common Stock at less than such average of the Last Reported Sale Prices of the Common Stock for the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement for such issuance, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.

 

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(c)                                  If the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company or rights to acquire its Capital Stock or other securities of the Company, to all or substantially all holders of the Common Stock, excluding (i) dividends or distributions referred to in Section 15.04(a), (ii) rights or warrants referred to in Section 15.04(b), (iii) dividends or distributions paid exclusively in cash, and (iii) Spin-Offs (as defined below) to which the provisions set forth below in this Section 15.04(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights to acquire Capital Stock or other securities, the “Distributed Property”), then the Conversion Rate shall be increased based on the following formula:

 



 

where,

 

CR0                         =                                         the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;

 

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

 

SP0                             =                                         the average of the Last Reported Sale Prices of the Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and

 

FMV                    =                                         the fair market value (as determined by the Board of Directors) of the Distributed Property with respect to each outstanding share of the Common Stock on the Ex-Dividend Date for such distribution.

 

Any increase made under the portion of this Section 15.04(c) above shall become effective immediately prior to the open of business on the day following the Ex-Dividend Date for such distribution.  If such distribution is not so paid or made, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such distribution had not been declared.  Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each holder of a Security shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Stock receive the Distributed Property, the amount and kind of Distributed Property such Securityholder would have received if such Securityholder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the Ex-Dividend Date for the distribution.  If the Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this Section 15.04(c) by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution.

 

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With respect to an adjustment pursuant to this Section 15.04(c) where there has been a payment of a dividend or other distribution on the Common Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula:

 



 

where,

 

CR0                         =                                         the Conversion Rate in effect immediately prior to the end of the Valuation Period;

 

CR’                          =                                         the Conversion Rate in effect immediately after the end of the Valuation Period;

 

FMV0               =                                         the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of the Common Stock (determined by reference to the definition of Last Reported Sale Price as set forth in Section 1.01 as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first ten (10) consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and

 

MP0                        =                                         the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.

 

The adjustment to the Conversion Rate under the preceding paragraph shall occur on the last Trading Day of the Valuation Period; provided that in respect of any conversion of Securities during the Valuation Period, references in the portion of this Section 15.04(c) related to Spin-Offs with respect to ten (10) Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the Conversion Date in determining the Conversion Rate.  If the Ex-Dividend Date of the Spin-Off is after the tenth (10th) Trading Day immediately preceding, and including, the end of any Observation Period in respect of a conversion of Securities, references in this Section 15.04(c) related to Spin-Offs to ten (10) Trading Days will be deemed to be replaced, solely in respect of that conversion of Securities, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for the Spin-Off to, and including, the last Trading Day of such Observation Period. If such dividend or distribution is not so paid or made, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

 

For purposes of this Section 15.04(c) (and subject in all respect to Section 15.11), rights, options or warrants distributed by the Company to all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in

 

78











 

respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 15.04(c) (and no adjustment to the Conversion Rate under this Section 15.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 15.04(c).  If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof).  In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 15.04(c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.

 

For purposes of Section 15.04(a), Section 15.04(b) and this Section 15.04(c), if any dividend or distribution to which this Section 15.04(c) is applicable also includes one or both of:

 

(A)                               a dividend or distribution of shares of Common Stock to which Section 15.04(a) is applicable (the “Clause A Distribution”); or

 

(B)                               a dividend or distribution of rights, options or warrants to which Section 15.04(b) is applicable (the “Clause B Distribution”),

 

then, in either case, (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 15.04(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 15.04(c) with respect to such Clause C Distribution shall then be made, and (2) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 15.04(a) and Section 15.04(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution

 

79











 

shall be deemed not to be “outstanding immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution, or the Effective Date of such Common Stock split or Common Stock combination” within the meaning of Section 15.04(a) or “outstanding immediately prior to the Ex-Dividend Date” within the meaning of Section 15.04(b).

 

(d)                                 If the Company pays any cash dividend or other distribution to all, or substantially all, holders of Common Stock (including as a result of capital reductions and Common Stock redemptions or amortizations), the Conversion Rate shall be adjusted based on the following formula:

 



 

where,

 

CR0                         =                                         the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution;

 

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

 

SP0                             =                                         the average of the Last Reported Sale Price of the Common Stock on the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and

 

C                                       =                                         the full amount of such dividend or distribution per share the Company distributes to holders of Common Stock.

 

Any increase pursuant to this Section 15.04(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution.  If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.  Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each holder of a Security shall receive, for each $1,000 principal amount of Securities, at the same time and upon the same terms as holders of shares of the Common Stock, the amount of cash that such Securityholder would have received if such Securityholder owned a number of shares of Common Stock equal to the Conversion Rate on the Ex-Dividend Date for such cash dividend or distribution.

 

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

 

80











 

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

 



 

where,

 

CR0                         =                                         the Conversion Rate in effect immediately prior to the close of business on the tenth (10th) Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires;

 

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

 

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

 

OS0                           =                                         the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);

 

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

 

SP’                              =                                         the average of the Last Reported Sale Prices of the Common Stock over the ten (10) consecutive Trading Day period commencing on the Trading Day immediately following the date such tender or exchange offer expires.

 

The adjustment to the Conversion Rate under this Section 15.04(e) shall occur at the close of business on the tenth (10th) Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that in respect of any conversion of Securities within the ten (10) Trading Days immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires, references in this Section 15.04(e) with respect to ten (10) Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the date that such tender or exchange offer expires and the Conversion Date in determining the Conversion Rate. In addition, if the Trading Day next succeeding the date such tender or exchange offer expires is after the tenth (10th) Trading Day immediately preceding, and including, the end of any Observation Period in respect of a conversion of Securities, references in this Section 15.04(e) to ten (10) Trading Days shall be deemed to be replaced, solely in respect of that conversion of Securities, with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding

 

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the date such tender or exchange offer expires to, and including, the last Trading Day of such Observation Period.

 

(f)                                   Notwithstanding this Section 15.04 or any other provision of this Indenture or the Securities, if a Conversion Rate adjustment becomes effective on any Ex-Dividend Date, and a Securityholder that has converted its Securities on or after such Ex-Dividend Date and on or prior to the related record date would be treated as the record holder of the shares of Common Stock as of the related Conversion Date as described under Section 15.02(i) based on an adjusted Conversion Rate for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment provisions in this Section 15.04, the Conversion Rate adjustment relating to such Ex-Dividend Date shall not be made for such converting Securityholder. Instead, such Securityholder shall be treated as if such Securityholder were the record owner of the shares of Common Stock on an unadjusted basis and participate in the related dividend, distribution or other event giving rise to such adjustment.

 

(g)                                  Except as stated herein, the Company shall not adjust the Conversion Rate for the issuance of shares of the Common Stock or any securities convertible into or exchangeable for shares of the Common Stock or the right to purchase shares of the Common Stock or such convertible or exchangeable securities.

 

(h)                                 In addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this Section 15.04, and to the extent permitted by applicable law and subject to the applicable rules of any exchange on which any of the Company’s securities are then listed, the Company from time to time may increase the Conversion Rate by any amount for a period of at least twenty (20) Business Days if the Board of Directors determines that such increase would be in the Company’s best interest.  In addition, to the extent permitted by applicable law and subject to the applicable rules of any exchange on which any of the Company’s securities are then listed, the Company may (but is not required to) increase the Conversion Rate to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares of Common Stock (or rights to acquire shares of Common Stock) or similar event.  Whenever the Conversion Rate is increased pursuant to either of the preceding two sentences, the Company shall mail to the holder of each Security at its last address appearing on the Security Register a notice of the increase at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.

 

(i)                                     Notwithstanding anything to the contrary in this Article 15, the Conversion Rate shall not be adjusted:

 

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

 

(ii)                                  upon the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant

 

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benefit plan or program of or assumed by the Company or any of the Company’s Subsidiaries;

 

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

 

(iv)                              for a change in the par value of the Common Stock if the Common Stock then have a par value, or from par value to no par value or from no par value to par value

 

(v)                                 for accrued and unpaid Interest, if any; or

 

(vi)                              for the avoidance of doubt, for the issuance of Common Stock by the Company (other than to all or substantially all holders of Common Stock) or the payment of cash by the Company upon conversion or repurchase of Securities.

 

(j)                                    No adjustment to the Conversion Rate will be required unless the adjustment would require an increase or decrease of at least one percent (1%) of the Conversion Rate.  If the adjustment is not made because the adjustment does not change the Conversion Rate by at least one percent (1%), then the adjustment that is not made will be carried forward and taken into account in any future adjustments.  In addition, the Company will make any carry forward adjustments not otherwise effected upon an offer by the Company to purchase the Securities in connection with a Fundamental Change or with respect to a repurchase at the option of holders, upon any Repurchase Date, upon any conversion of the Securities, within one year of the first such adjustment carried forward and on the record date immediately prior to the Maturity Date of the Securities.  Except as otherwise provided in under this Article 15, all calculations and other determinations under this Article 15 shall be made by the Company and shall be made to the nearest one-ten thousandth (1/10,000) of a share. The Company shall make all such calculations in good faith and, absent manifest error, the Company’s calculations will be final and binding upon the Securityholder.

 

(k)                                 Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee (and the Conversion Agent if not the Trustee) an Officers’ Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment.  Unless and until a Responsible Officer of the Trustee shall have received such Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume without inquiry that the last Conversion Rate of which it has knowledge is still in effect.  Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to each Securityholder at its last address appearing on the Security Register of this Indenture.  Failure to deliver such notice shall not affect the legality or validity of any such adjustment.

 

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(l)                                     For purposes of this Section 15.04, the number of shares of Common Stock at any time outstanding shall not include shares of Common Stock held in the treasury of the Company so long as the Company does not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company, but shall include shares of Common Stock issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.

 

Section 15.05                      Adjustments of Prices.  Whenever any provision of this Indenture requires the Company to calculate the Last Reported Sale Prices of Common Stock, the Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts over a span of multiple days (including an Observation Period and the period for determining the Stock Price for purposes of a Make-Whole Fundamental Change), the Board of Directors shall make appropriate adjustments to each to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date of the event occurs, at any time during the period when the Last Reported Sale Prices of Common Stock, the Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts are to be calculated.  The Company will provide a schedule of its calculations to each of the Trustee and the Conversion Agent, and each of the Trustee and Conversion Agent are entitled to rely conclusively upon the accuracy of its calculations without independent verification.

 

Section 15.06                      Shares to Be Fully Paid.  The Company shall provide, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock to provide for conversion of the Securities from time to time as such Securities are presented for conversion (assuming that at the time of computation of such number of shares, all such Securities would be converted by a single Securityholder and that Physical Settlement is applicable).

 

Section 15.07                      Effect of Recapitalizations, Reclassifications and Changes of the Common Stock.

 

(a)                                 In the case of:

 

(i)                                     any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),

 

(ii)                                  any consolidation, merger or combination involving the Company,

 

(iii)                               any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety; or

 

(iv)                              any statutory share exchange,

 

in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Securities shall be changed into a right to convert such principal amount of Securities into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such

 

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Merger Event would have owned or been entitled to receive (the “Reference Property”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 9.01(b) providing for such change in the right to convert each $1,000 principal amount of Securities; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Securities in accordance with Section 15.02 and (B) (I) any amount payable in cash upon conversion of the Securities in accordance with Section 15.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Securities in accordance with Section 15.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property.

 

If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Securities will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, the types and amounts of consideration actually received by the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one share of Common Stock.  If the holders receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Securities shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 15.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Securityholders on the third (3rd) Business Day immediately following the relevant Conversion Date. The Company shall notify Securityholders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made but in no event later than the third (3rd) Business Day following the effective date of the Merger Event.

 

Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 15.  If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the holders of the Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 14.

 

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(b)                                 When the Company executes a supplemental indenture pursuant to subsection (a) of this Section 15.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Securityholders.  The Company shall cause notice of the execution of such supplemental indenture to be mailed to each Securityholder, at its address appearing on the Security Register provided for in this Indenture, within twenty (20) days after execution thereof.  Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.

 

(c)                                  The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 15.07.  None of the foregoing provisions shall affect the right of a holder of Securities to convert its Securities into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 15.01 and Section 15.02 prior to the effective date of such Merger Event.

 

(d)                                 The above provisions of this Section 15.07 shall similarly apply to successive Merger Events. Upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes Capital Stock after giving effect to such Merger Event.

 

Section 15.08                      Certain Covenants.  The Company covenants that all shares of Common Stock issued upon conversion of Securities will be fully paid and non-assessable by the Company and free from all taxes, liens and charges with respect to the issue thereof.

 

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

 

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

 

Section 15.09                      Responsibility of Trustee.  The Trustee and any other Conversion Agent shall not at any time be under any duty or responsibility to any Securityholder to determine the Conversion Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment (including any increase) of the Conversion Rate, or with respect to the nature or

 

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extent or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same.  The Trustee and any other Conversion Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities, property or cash that may at any time be issued or delivered upon the conversion of any Security; and the Trustee and any other Conversion Agent make no representations with respect thereto.  Neither the Trustee nor any other Conversion Agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or property or cash upon the surrender of any Security for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article 15.  Without limiting the generality of the foregoing, neither the Trustee nor any other Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section 15.07 relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Securityholders upon the conversion of their Securities after any event referred to in Section 15.07 or to any adjustment to be made with respect thereto, but, subject to the provisions of Section 6.01, may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions, and shall be protected in conclusively relying upon, the Officers’ Certificate (which the Company shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto.  Neither the Trustee nor the Conversion Agent shall be responsible for determining whether any event contemplated by Section 15.01(a) has occurred that makes the Securities eligible for conversion or no longer eligible therefor until the Company has delivered to the Trustee and the Conversion Agent the notices referred to in Section 15.01(a) with respect to the commencement or termination of such conversion rights, on which notices the Trustee and the Conversion Agent may conclusively rely, and the Company agrees to deliver such notices to the Trustee and the Conversion Agent immediately after the occurrence of any such event or at such other times as shall be provided for in Section 15.01(a).

 

Section 15.10                      Notice to Holders Prior to Certain Actions.  In case of any:

 

(a)                                 action by the Company or one of its Subsidiaries that would require an adjustment in the Conversion Rate pursuant to Section 15.04 or Section 15.11;

 

(b)                                 Merger Event; or

 

(c)                                  voluntary or involuntary dissolution, liquidation or winding-up of the Company or any of its Material Subsidiaries;

 

then, in each case (unless notice of such event is otherwise required pursuant to another provision of this Indenture), the Company shall cause to be filed with the Trustee and the Conversion Agent (if other than the Trustee) and to be mailed to each Securityholder at its address appearing on the Security Register, as promptly as possible but in any event at least twenty (20) days prior to the applicable date hereinafter specified, a notice stating (i) the date on which a record is to be taken for the purpose of such action by the Company or one of its Material Subsidiaries or, if a record is not to be taken, the date as of which the holders of Common Stock of record are to be determined for the purposes of such action by the Company

 

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or one of its Material Subsidiaries, or (ii) the date on which such Merger Event, dissolution, liquidation or winding-up, as applicable, is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such Merger Event, dissolution, liquidation or winding-up.  Failure to give such notice, or any defect therein, shall not affect the legality or validity of such dividend, distribution, reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up.

 

Section 15.11                      Stockholder Rights Plans.  If the Company has a stockholder rights plan in effect upon conversion of the Securities, each share of Common Stock, if any, issued upon such conversion shall be entitled to receive the appropriate number of rights, if any, and the certificates representing the Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any such stockholder rights plan, as the same may be amended from time to time. However, if, prior to any conversion of Securities, the rights have separated from the shares of Common Stock in accordance with the provisions of the applicable stockholder rights plan so that the Securityholders would not be entitled to receive any rights in respect of Common Stock, if any, issuable upon conversion of the Securities, the Conversion Rate shall be adjusted at the time of separation as if the Company distributed to all or substantially all holders of the Common Stock Distributed Property as provided in Section 15.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights.

 

[Remainder of Page Intentionally Left Blank.]

 

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

 

	
 
    	
FINISAR CORPORATION
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Jerry S. Rawls
    
	
 
    	
 
    	
Name:
    	
Jerry S. Rawls
    
	
 
    	
 
    	
Title:
    	
Chairman of the Board   of
    
	
 
    	
 
    	
 
    	
Directors and Chief   Executive
    
	
 
    	
 
    	
 
    	
Officer
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Kurt Adzema
    
	
 
    	
 
    	
Name:
    	
Kurt Adzema
    
	
 
    	
 
    	
Title:
    	
Executive Vice President,
    
	
 
    	
 
    	
 
    	
Finance and Chief Financial
    
	
 
    	
 
    	
 
    	
Officer
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
WELLS FARGO BANK, NATIONAL ASSOCIATION,
    
	
 
    	
as Trustee
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Maddy Hughes
    
	
 
    	
 
    	
Name: 
    	
Maddy Hughes
    
	
 
    	
 
    	
Title:
    	
Vice President
    


 











 

EXHIBIT A

 

[FORM OF FACE OF SECURITY]

 

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE “DEPOSITARY”, WHICH TERM INCLUDES ANY SUCCESSOR DEPOSITARY) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREIN IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.(1)

 

THE SALE OF THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, PRIOR TO THE RESALE RESTRICTION TERMINATION DATE (AS DEFINED BELOW), THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY MAY NOT BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, EXCEPT: (A) TO FINISAR CORPORATION (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF; (B) PURSUANT TO, AND IN ACCORDANCE WITH, A REGISTRATION STATEMENT THAT IS EFFECTIVE UNDER THE SECURITIES ACT AT THE TIME OF SUCH TRANSFER; (C) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN COMPLIANCE WITH RULE 144A; OR (D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (INCLUDING, IF AVAILABLE, THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT). (2)

 

 

THE “RESALE RESTRICTION TERMINATION DATE” MEANS THE LATER OF: (1) THE DATE THAT IS ONE YEAR AFTER THE DATE OF LAST ORIGINAL ISSUANCE OF THE SECURITIES (INCLUDING THE LAST DATE OF ISSUANCE OF ADDITIONAL SECURITIES PURSUANT TO THE EXERCISE OF THE INITIAL PURCHASER’S OVER-ALLOTMENT OPTION) OR SUCH SHORTER PERIOD OF TIME PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISIONS THERETO; AND (2) THE DATE ON WHICH WE HAVE INSTRUCTED THE TRUSTEE FOR THE SECURITIES THAT THE FOREGOING RESTRICTIONS WILL NO LONGER APPLY IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE INDENTURE. (3)

 




(1)  This paragraph should be included only if the Security is a Global Security.

(2)  This paragraph should be included only if the Security is a Restricted Security.

(3)  This paragraph should be included only if the Security is a Restricted Security.

 

A-1











 

WITH RESPECT TO ANY TRANSFER PURSUANT TO THE FOREGOING CLAUSE (D) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE AND MAY RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.(4)

 




(4)  This paragraph should be included only if the Security is a Restricted Security.

 

A-2












 

FINISAR CORPORATION

 

0.50% CONVERTIBLE SENIOR NOTES DUE 2036

 

	
$
    	
CUSIP:               
    
	
 
    	
 
    
	
No.
    	
 
    


 

Finisar Corporation, a Delaware corporation (herein called the “Company”, which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to CEDE & CO. or its registered assigns, [the principal sum of             Dollars] [the principal sum of $[               ] (which principal amount may from time to time be increased or decreased to such other principal amounts (which shall not exceed $[               ]) as then set forth on Schedule I hereto)](5) on December 15, 2036, at the office or agency of the Company maintained for that purpose in accordance with the terms of the Indenture, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay Interest, semiannually on June 15 or December 15 of each year, commencing June 15, 2017, on said principal sum at said office or agency, in like coin or currency, at the rate per annum of 0.50%, from the June 15 or December 15, as the case may be, next preceding the date of this Security to which Interest has been paid or duly provided for, or unless no Interest has been paid or duly provided for on the Securities, in which case from December 21, 2016 until payment of said principal sum has been made or duly provided for.  Except as otherwise provided in the Indenture, the Interest payable on the Security pursuant to the Indenture on any June 15 or December 15 will be paid to the Person entitled thereto as it appears in the Security Register at the close of business on the record date, which shall be the June 1 or December 1 (whether or not a Business Day) next preceding such June 15 or December 15, as provided in the Indenture; provided that any such Interest not punctually paid or duly provided for shall be payable as provided in the Indenture.  The Company shall pay Interest (i) on any Securities in certificated form by check mailed to the address of the Person entitled thereto as it appears in the Security Register (provided that the holder of Securities with an aggregate principal amount in excess of $5,000,000 shall, at the written election of such holder, be paid by wire transfer of immediately available funds, which written notice shall remain in effect until such Person notifies, in writing, the Security Registrar to the contrary) or (ii) on any Global Security by wire transfer of immediately available funds to the account of the Depositary or its nominee.

 

The Company promises to pay Interest on overdue principal, premium, if any, and (to the extent that payment of such Interest is enforceable under applicable law) interest at the rate of 0.50% per annum.

 

Reference is made to the further provisions of this Security set forth on the reverse hereof, including, without limitation, provisions giving the holder of this Security the right to convert this Security into Common Stock or cash or a combination of cash and Common Stock on the terms and subject to the limitations referred to on the reverse hereof and as more fully

 




(5)         This section should be included only if the Security is a Global Security.

 

A-3











 

specified in the Indenture.  Such further provisions shall for all purposes have the same effect as though fully set forth at this place.

 

This Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of the State of New York.

 

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

 

A-4











 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

	
 
    	
 
    	
FINISAR CORPORATION
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
 
    
	
 
    	
 
    	
 
    	
Name: 
    	
Jerry S. Rawls
    
	
 
    	
 
    	
 
    	
Title: 
    	
Chairman of the Board of Directors and Chief
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
 
    
	
 
    	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
 
    	
Title:
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
This is one of the Securities referred to in the within-mentioned   Indenture.
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
WELLS FARGO BANK, NATIONAL ASSOCIATION,
    	
 
    	
 
    
	
as Trustee
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    	
 
    
	
 
    	
Authorized Signatory
    	
 
    	
 
    


 

A-5











 

[FORM OF REVERSE OF SECURITY]

 

FINISAR CORPORATION

 

0.50% CONVERTIBLE SENIOR NOTES DUE 2036

 

This Security is one of a duly authorized issue of Securities of the Company, designated as its “0.50% Convertible Senior Notes due 2036” (herein called the “Securities”), issued and to be issued under and pursuant to an Indenture, dated as of December 21, 2016 (herein called the “Indenture”), between the Company and Wells Fargo Bank, National Association, as trustee (herein called the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the holders of the Securities.

 

The Securities are unsecured obligations of the Company.  The aggregate principal amount of Securities outstanding at any time may not exceed $575,000,000 in aggregate principal amount, subject to Section 2.06 of the Indenture and except as provided in Section 2.10 of the Indenture.  The Indenture does not limit other debt of the Company, whether secured or unsecured.

 

In case an Event of Default shall have occurred and be continuing, the principal of, premium, if any, and accrued and unpaid Interest, if any, on all Securities may be declared by either the Trustee or the holders of not less than 25% in aggregate principal amount of the Securities then outstanding, and upon said declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.

 

The Indenture contains provisions permitting the Company and the Trustee, with the consent of the holders of at least a majority in aggregate principal amount of the Securities at the time outstanding, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the holders of the Securities; provided that no such supplemental indenture may be entered without the consent of the holders of all Securities then outstanding except in the events described in Section 9.02 of the Indenture.

 

Subject to the provisions of the Indenture, the holders of a majority in aggregate principal amount of the Securities at the time outstanding may on behalf of the holders of all of the Securities waive any past default or Event of Default under the Indenture and its consequences except (A) a default in the payment of Interest, or any premium on, or the principal of, any of the Securities, (B) a failure by the Company to convert any Securities into Common Stock, cash or a combination of cash and Common Stock, (C) a default in the payment of the redemption or repurchase price pursuant to Article 14 of the Indenture, (D) a default in failing to provide notice of a Fundamental Change pursuant to Article 14 of the Indenture, or (E) a default in respect of a covenant or provisions of the Indenture which under Article 9 of the Indenture cannot be modified or amended without the consent of the holders of each or all Securities then outstanding or affected thereby.  Upon any such waiver, the Company, the Trustee and the holders of the Securities shall be restored to their former positions and rights hereunder; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right

 

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consequent thereon.  Whenever any default or Event of Default hereunder shall have been waived as permitted by Section 5.08 of the Indenture, said default or Event of Default shall for all purposes of the Securities and the Indenture be deemed to have been cured and to be not continuing; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and Interest on this Security at the place, at the respective times, at the rate and in the coin or currency herein prescribed.

 

Interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months.

 

The Securities are issuable in fully registered form, without coupons, in denominations of $1,000 principal amount and any integral multiple of $1,000.  At the office or agency of the Company referred to on the face hereof, and in the manner and subject to the limitations provided in the Indenture, without payment of any service charge but may be with payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection with any registration or exchange of Securities, Securities may be exchanged for a like aggregate principal amount of Securities of any other authorized denominations.

 

At any time on or after December 22, 2021, and prior to the Maturity Date, and subject to the proviso below, the Securities, in whole or in part, may be redeemed at the option of the Company, at any time and from time to time, upon notice as set forth in Section 14.02, at a redemption price in cash per security equal to 100% of the principal amount of the Security, together with accrued and unpaid Interest, if any, to, but excluding, the date fixed for redemption; provided that if the redemption date falls after a record date and on or prior the corresponding interest payment date, then the full amount of Interest payable on such interest payment date shall be paid to the holders of record of such Securities on the applicable record date instead of the holders surrendering such Securities for redemption on such date.  We are required to give notice of redemption by mail to holders not more than sixty (60) but not less than twenty (20) days prior to the redemption date.

 

The Company may not give notice of any redemption of the Securities if a default in the payment of Interest, or premium, if any, on the Securities has occurred and is continuing or if the principal amount of the Securities has been accelerated.

 

The Securities are not subject to redemption through the operation of any sinking fund.

 

All payments made by the Company or any successor to the Company under or with respect to the Securities will be made without withholding or deduction for taxes.

 

The holders may require the Company to repurchase any outstanding Securities for cash, on December 15, 2021, December 15, 2026 and December 15, 2031 (each a “Repurchase Date”), at a repurchase price per Security equal to 100% of the aggregate principal amount of the Security, together with any accrued and unpaid Interest, to, but excluding, the applicable Repurchase Date; provided that if such Repurchase Date is an interest payment date, interest on

 

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the Securities will be payable to the Securityholders in whose names the Securities are registered at the close of business on the relevant record date.  The Company shall give written notice of the applicable Repurchase Date by delivery of the Repurchase Date Notice as provided in the Indenture, to each Securityholder (at its address shown in the register of the Security Registrar) and to beneficial owners as required by applicable law, not less than twenty-five (25) Business Days prior to each Repurchase Date.

 

If a Fundamental Change occurs at any time prior to the Maturity Date of the Securities, holders may require the Company repurchase for cash all or any portion of the Securities held by such holder, on a date specified by the Company not less than twenty (20) and not more than thirty-five (35) Business Days after notice thereof at a repurchase price of 100% of the principal amount, plus any accrued and unpaid Interest, on such Security up to, but excluding, the Fundamental Change Repurchase Date; provided that if the repurchase date falls after a record date and on or prior the corresponding interest payment date, then the full amount of Interest payable on such interest payment date shall be paid to the holders of record of such Securities on the applicable record date instead of the holders surrendering such Securities for repurchase on such date. The Securities will be repurchased in integral multiples of $1,000 principal amount.  The Company shall mail to all holders of record of the Securities a notice of the occurrence of a Fundamental Change and the holder’s right to exercise the repurchase right arising as a result thereof on or before the 20th day after the occurrence of such Fundamental Change.  To accept such offer, a holder shall deliver to the Company such Security with the form entitled “Fundamental Change Repurchase Right Notice” on the reverse thereof duly completed, together with the Security, duly endorsed for transfer, at any time prior to the close of business on the Fundamental Change Repurchase Date, and shall deliver the Securities to the Trustee (or other Paying Agent appointed by the Company) as set forth in the Indenture.

 

Securityholders have the right to withdraw any Fundamental Change Repurchase Right Notice by delivering to the Trustee (or other Paying Agent appointed by the Company) a written notice of withdrawal up to the close of business on the Fundamental Change Repurchase Date all as provided in the Indenture.

 

If sufficient money to pay the repurchase price of all Securities or portions thereof to be purchased as of the Fundamental Change Repurchase Date is deposited with the Trustee (or other Paying Agent appointed by the Company), on the Business Day following the Fundamental Change Repurchase Date, the Securities will cease to be outstanding, Interest will cease to accrue on such Securities (or portions thereof) immediately after the Fundamental Change Repurchase Date, and the holder thereof shall have no other rights as such other than the right to receive the repurchase price upon surrender of such Security.

 

Subject to the provisions of the Indenture, the holder hereof has the right, at its option, during certain periods and upon the occurrence of certain conditions specified in the Indenture, prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, to convert the Securities into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, at a Conversion Rate specified in the Indenture, as adjusted from time to time as provided in the Indenture.

 

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The Conversion Rate on any Securities surrendered for conversion in connection with a Fundamental Change may be increased by an amount, if any, determined in accordance with Section 15.03 of the Indenture.

 

Upon conversion, the Company may choose to pay or deliver, as the case may be, (i) cash, (ii) shares of Common Stock or (iii) a combination of cash and shares of Common Stock.

 

No adjustment in respect of Interest on any Security converted or dividends on any shares issued upon conversion of such Security will be made upon any conversion except as set forth in the next sentence.  If this Security (or portion hereof) is surrendered for conversion during the period from the close of business on any record date for the payment of Interest to the close of business on the Business Day preceding the following interest payment date, this Security (or portion hereof being converted) must be accompanied by payment, in immediately available funds or other funds acceptable to the Company, of an amount equal to the Interest otherwise payable on such interest payment date on the principal amount being converted; provided that no such payment shall be required (1) if the Company has specified a redemption date that is after a record date and on or prior to the next interest payment date, (2) if the Company has specified a Fundamental Change Repurchase Date following a Fundamental Change or a Repurchase Date that is during such period or (3) to the extent of any overdue Interest, if any overdue Interest exists at the time of conversion with respect to such Security.

 

No fractional shares will be issued upon any conversion, but an adjustment and payment in cash will be made, as provided in the Indenture, in respect of any fraction of a share which would otherwise be issuable upon the surrender of any Security or Securities for conversion.

 

A Security in respect of which a holder accepts an offer by the Company to purchase its Securities upon a Fundamental Change may be converted only if such holder withdraws its election to exercise either such right in accordance with the terms of the Indenture.

 

Any Securities called for redemption, unless surrendered for conversion by the holders thereof on or before the close of business on the Business Day preceding the redemption date, may be deemed to be redeemed from the holders of such Securities for an amount equal to the applicable redemption price, together with accrued but unpaid Interest, if any, to, but excluding, the date fixed for redemption, by one or more investment banks or other purchasers who may agree with the Company (i) to purchase such Securities from the holders thereof and convert them into shares of the Company’s Common Stock and (ii) to make payment for such Securities as aforesaid to the Trustee in trust for the holders.

 

Upon due presentment for registration of transfer of this Security at the office or agency of the Company maintained for that purpose in accordance with the terms of the Indenture, a new Security or Securities of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange thereof, subject to the limitations provided in the Indenture, without charge except for any tax, assessment or other governmental charge may be imposed in connection therewith.

 

The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and any Security Registrar may deem and treat the registered holder hereof as the absolute

 

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owner of this Security (whether or not this Security shall be overdue and notwithstanding any notation of ownership or other writing hereon made by anyone other than the Company or any Security Registrar) for the purpose of receiving payment hereof, or on account hereof, for the conversion hereof and for all other purposes, and neither the Company nor the Trustee nor any other authenticating agent nor any Paying Agent nor other Conversion Agent nor any Security Registrar shall be affected by any notice to the contrary.  All payments made to or upon the order of such registered holder shall be valid, and, to the extent of the sum or sums paid, satisfy and discharge liability for monies payable on this Security.

 

No recourse for the payment of the principal of or any premium or Interest on this Security, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any supplemental indenture or in any Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent, officer or director or subsidiary, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.

 

This Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of the State of New York.

 

Terms used in this Security and defined in the Indenture are used herein as therein defined.

 

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ABBREVIATIONS

 

The following abbreviations, when used in the inscription of the face of this Security, shall be construed as though they were written out in full according to applicable laws or regulations.

 

	
TEN COM -
    	
 
    	
as tenants in common
    
	
TEN ENT -
    	
 
    	
as tenant by the entireties
    
	
JT TEN -
    	
 
    	
as joint tenants with right of survivorship and not   as tenants in common
    
	
CUST -
    	
 
    	
Custodian
    
	
UNIF GIFT MIN ACT -
    	
 
    	
Uniform Gifts to Minors Act Custodian
    


 

Additional abbreviations may also be used though not in the above list.

 

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NOTICE OF CONVERSION

 

TO:                                                                           FINISAR CORPORATION

1389 Moffett Park Drive

Sunnyvale, CA 94089-1134

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

150 E. 42nd Street

40th Floor

New York, NY 10017

Facsimile No.: (917) 260-1593

Attention: Corporate Trust Administration (Finisar)

 

WELLS FARGO BANK — DAPS Reorg.

MAC N9303-121

608 2nd Avenue South

Minneapolis, MN 55479

Facsimile No.: (866) 969-1290

Email: DAPSReorg@wellsfargo.com

 

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

 

	
Dated:
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Signature(s)
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Signature(s) must be guaranteed by an “eligible   guarantor institution” meeting the requirements of the Security   Registrar, which requirements include membership or participation in the   Security Transfer Agent Medallion Program (“STAMP”)   or such other “signature guarantee program” as   may
    


 

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be determined by the Security Registrar in addition to, or in   substitution for, STAMP, all in accordance with the Securities Exchange Act   of 1934, as amended.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Signature Guarantee
    
	
 
    	
 
    	
 
    


 

1.                                      Total principal amount and serial or identification numbers of Securities to be converted:

 

Total principal amount of Securities:                                                  

 

Serial or identifying number of Securities:                                                                       

(not required for Securities represented by a Global Security)

 

CUSIP/ISIN number of Securities:                                                                   

 

N.B. If necessary, the serial or identifying numbers of Securities can be attached separately.

 

2.                                      Name and address of the person in whose name Common Stock required to be delivered on conversion are to be registered:

 

	
Name:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Address:
    	
 
    	
 
    


 

3.                                      I/We hereby request that the certificate for the Common Stock (together with any cash) required to be delivered upon conversion be dispatched (at my/our own risk and expense) to the local agent whose name and address is given below and in the manner specified below, or if the conditions specify that delivery of the Common Stock is to be made in book-entry form, the Common Stock be credited to the securities account specified below:

 

	
Name:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Address:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Contact Person:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Telephone No.:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Fax No.:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Manner of Dispatch:
    	
 
    	
 
    


 

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Securities House:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Securities Account Number:
    	
 
    	
 
    
				


 

 

4.                                      I/We hereby declare that any applicable condition to conversion of the Securities, if any, has been complied with by me/us.

 

5.                                      I/We hereby declare that all stamp, issue, registration or similar taxes and duties payable on conversion, issue or delivery of Common Stock of any other property or cash have been paid.

 

6.                                      I/We hereby declare that all stamp, issue, registration or similar taxes and duties payable on conversion, issue or delivery of Common Stock or any other property or cash have been paid.

 

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FUNDAMENTAL CHANGE REPURCHASE RIGHT NOTICE

 

	
TO:
    	
FINISAR CORPORATION
    
	
 
    	
1389 Moffett Park Drive
    
	
 
    	
Sunnyvale, CA 94089-1134
    
	
 
    	
 
    
	
 
    	
WELLS FARGO BANK, NATIONAL ASSOCIATION
    
	
 
    	
150 E. 42nd Street
    
	
 
    	
40th Floor
    
	
 
    	
New York, NY 10017
    
	
 
    	
Facsimile No.: (917) 260-1593
    
	
 
    	
Attention: Corporate Trust Administration (Finisar)
    
	
 
    	
 
    
	
 
    	
WELLS FARGO BANK — DAPS Reorg.
    
	
 
    	
MAC N9303-121
    
	
 
    	
608 2nd Avenue South
    
	
 
    	
Minneapolis, MN 55479
    
	
 
    	
Facsimile No.: (866) 969-1290
    
	
 
    	
Email: DAPSReorg@wellsfargo.com
    


 

The undersigned registered owner of this Security hereby irrevocably acknowledges receipt of a notice from Finisar Corporation (the “Company”) regarding the right of holders to accept the Company’s offer to purchase the Securities upon the occurrence of a Fundamental Change with respect to the Company and accepts such offer and requests and instructs the Company to repay the entire principal amount of this Security, or the portion thereof (which is $1,000 or an integral multiple thereof) below designated, in accordance with the terms of the Indenture at the price of 100% of such entire principal amount or portion thereof, together with accrued and unpaid Interest, if any, to, but excluding, the Fundamental Change Repurchase Date, to the registered holder hereof, provided that if such Fundamental Change Repurchase Date falls after a record date and on or prior to the corresponding interest payment date, then the full amount of Interest payable on such interest payment date shall be paid to the holders of record of the Securities on the applicable record date instead of the holders surrendering the Securities for repurchase on such Fundamental Change Repurchase Date.  Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.  The undersigned registered owner elects:

 

£                            to withdraw this Fundamental Change Repurchase Right Notice as to $            principal amount of the Securities to which this Fundamental Change Repurchase Right Notice relates (Certificate Numbers:          ), or

 

£                            to accept the offer receive cash in respect of $            principal amount of the Securities to which this Fundamental Change Repurchase Right Notice relates.

 

	
Dated:
    	
 
    	
 
    	
 
    


 

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Signature(s):
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
Signatures(s) must be guaranteed by an “eligible   guarantor institution” meeting the requirements of the Security   Registrar, which requirements include membership or participation in the   Security Transfer Agent Medallion Program (“STAMP”)   or such other “signature guarantee program” as   may be determined by the Security Registrar in addition to, or in   substitution for, STAMP, all in accordance with the Securities Exchange Act   of 1934, as amended.
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
Signature Guarantee
    


 

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

 

Security Certificate Number (if applicable):

 

Principal amount to be repurchased (if less than all):

 

Social Security or Other Taxpayer Identification Number:

 

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REPURCHASE DATE NOTICE

 

	
TO:
    	
FINISAR CORPORATION
    
	
 
    	
1389 Moffett Park Drive
    
	
 
    	
Sunnyvale, CA 94089-1134
    
	
 
    	
 
    
	
 
    	
WELLS FARGO BANK, NATIONAL ASSOCIATION
    
	
 
    	
150 E. 42nd Street
    
	
 
    	
40th Floor
    
	
 
    	
New York, NY 10017
    
	
 
    	
Facsimile No.: (917) 260-1593
    
	
 
    	
Attention: Corporate Trust Administration (Finisar)
    
	
 
    	
 
    
	
 
    	
WELLS FARGO BANK — DAPS Reorg.
    
	
 
    	
MAC N9303-121
    
	
 
    	
608 2nd Avenue South
    
	
 
    	
Minneapolis, MN 55479
    
	
 
    	
Facsimile No.: (866) 969-1290
    
	
 
    	
Email: DAPSReorg@wellsfargo.com
    


 

The undersigned registered owner of this Security hereby irrevocably acknowledges receipt of a notice from Finisar Corporation (the “Company”) regarding the right of holders to elect to require the Company to repurchase the Securities on [December 15, 2021/ December 15, 2026/ December 15, 2031] and requests and instructs the Company to repay the entire principal amount of this Security, or the portion thereof (which is $1,000 or an integral multiple thereof) below designated, in accordance with the terms of the Indenture at the price of 100% of such entire principal amount or portion thereof, together with accrued and unpaid Interest, if any, to, but excluding, the Repurchase Date, to the registered holder hereof, provided that if such Repurchase Date falls after a record date and on or prior to the corresponding interest payment date, then the full amount of Interest payable on such interest payment date shall be paid to the holders of record of the Securities on the applicable record date instead of the holders surrendering the Securities for repurchase on such Repurchase Date.  Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.  The undersigned registered owner elects:

 

o                            to withdraw this Repurchase Date Notice as to $                principal amount of the Securities to which this Repurchase Date Notice relates (Certificate Numbers:             ), or

 

o                            to receive cash in respect of $                 principal amount of the Securities to which this Repurchase Date Notice relates.

 

	
Dated:
    	
 
    	
 
    	
 
    


 

	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
Signature(s):
    


 

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Signatures(s) must be guaranteed by an “eligible   guarantor institution” meeting the requirements of the Security   Registrar, which requirements include membership or participation in the   Security Transfer Agent Medallion Program (“STAMP”)   or such other “signature guarantee program” as   may be determined by the Security Registrar in addition to, or in   substitution for, STAMP, all in accordance with the Securities Exchange Act   of 1934, as amended.
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
Signature Guarantee
    


 

 

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

 

Security Certificate Number (if applicable):

 

Principal amount to be repurchased (if less than all):

 

Social Security or Other Taxpayer Identification Number:

 

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ASSIGNMENT

 

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

 

In connection with any transfer of the Security prior to the date that is two years after the last original issue date of the Securities (other than any transfer pursuant to a registration statement that has been declared effective under the Securities Act), the undersigned confirms that such Security is being transferred:

 

o                                    To Finisar Corporation or a subsidiary thereof; or

 

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

 

o                                    Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended; or

 

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

 

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

 

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

 

	
Dated:
    	
 
    	
 
    	
 
    


 

	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
Signature(s)
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
Signature(s) must be guaranteed by an “eligible   guarantor institution” meeting the requirements of the Security   Registrar, which requirements include membership or participation in the   Security Transfer Agent Medallion Program (“STAMP”)   or such other “signature guarantee program” as   may be determined by the Security Registrar in addition
    


 

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to, or in substitution for, STAMP, all in accordance with the   Securities Exchange Act of 1934, as amended.
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
Signature Guarantee
    


 

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

 

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Schedule I*

 

FINISAR CORPORATION

0.50% CONVERTIBLE SENIOR NOTES DUE 2036

 

SCHEDULE OF EXCHANGES OF SECURITIES

 

	
Date
    	
 
    	
Principal Amount of
   this Global Security
   Following Such
   Decrease Date of
   Exchange (or Increase)
    	
 
    	
Amount of Decrease in
   Principal Amount of
   this Global Security
    	
 
    	
Amount of Increase in
   Principal Amount of
   this Global Security
    	
 
    	
Authorized Signature of
   Trustee or Custodian
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 




*       This schedule should be included only if the Security is a Global Security.

 

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