DoorDash, Inc 8-K, filed Jun 2, 2025
DoorDash, Inc. (DASH)
8-K
2025-06-02
For: 2025-05-27
View Original
Added on
April 11, 2026
About this 8-K
DoorDash, Inc filed this 8-K on June 2, 2025, reporting on events of May 27, 2025.
Items reported
- Item 1.01: Entered into a material agreement
- Item 2.03: New debt or off-balance-sheet obligation
- Item 3.02: Unregistered sale of equity
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(I.R.S. Employer Identification No.)
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(Address of principal executive offices) (Zip Code)
(650 ) 487-3970
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of
the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading
Symbol(s)
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Name of each exchange on which
registered
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule
12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new
or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01. |
Entry Into or Amendment of a Material Definitive Agreement.
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Indenture and Notes
On May 30, 2025, DoorDash, Inc. (the “Company”) issued $2,750,000,000 aggregate principal amount of its 0% convertible senior notes due
2030 (the “Notes”). The Notes were issued pursuant to, and are governed by, an indenture (the “Indenture”), dated as of May 30, 2025, between the Company and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”). Pursuant to the
purchase agreement between the Company and the representative of the initial purchasers of the Notes, the Company granted the initial purchasers an option to purchase, for settlement within a period of 13 days from, and including, the date the Notes
are first issued, up to an additional $250,000,000 aggregate principal amount of Notes. On May 28, 2025, the initial purchasers exercised this option in full and the Notes issued on May 30, 2025 include the additional $250,000,000 aggregate principal
amount of Notes.
The Company used approximately $338.5 million of the net proceeds from the offering of the Notes to fund the cost of entering into the
convertible note hedge transactions described below (after such cost was partially offset by the proceeds to the Company from the sale of warrants under the warrant transactions described below), and
intends to use the remainder of the net proceeds for general corporate purposes, which may include potential acquisitions and potential repurchases of shares of the Company’s outstanding Class A common stock.
The Notes will be the Company’s senior, unsecured obligations and will be: (i) equal in right of payment with the Company’s existing and
future senior, unsecured indebtedness; (ii) senior in right of payment to the Company’s future indebtedness that is expressly subordinated to the Notes; (iii) effectively subordinated to any of the Company’s secured indebtedness, to the extent of the
value of the collateral securing that indebtedness; and (iv) structurally subordinated to all existing and future indebtedness and other liabilities, including trade payables, and (to the extent the Company is not a holder thereof) preferred equity,
if any, of the Company’s current and future subsidiaries.
The Notes will not bear regular cash interest, and the principal amount of the Notes will not accrete. However, special interest and
additional interest, if any, may accrue on the Notes at a combined rate per annum not exceeding 0.50% upon the occurrence of certain events relating to the failure to file certain reports with the U.S. Securities and Exchange Commission (the “SEC”)
or to remove certain restrictive legends from the Notes. The Notes will mature on May 15, 2030, unless earlier repurchased, redeemed or converted. Before November 15, 2029, noteholders will have the right to convert their Notes only upon the
occurrence of certain events. From and after November 15, 2029, noteholders may convert their Notes at any time at their election until the close of business on the second scheduled trading day immediately before the maturity date. The Company will
have the right to elect to settle conversions either in cash or in a combination of cash and shares of its Class A common stock. Upon conversion of any Notes, the conversion value, which will be
determined over an “Observation Period” (as defined in the Indenture) consisting of 20 VWAP Trading Days (as defined in the Indenture), will be paid in cash up to at least the principal amount of the Notes being converted. The initial conversion rate
is 3.4250 shares of the Company’s Class A common stock per $1,000 principal amount of Notes, which represents an initial conversion price of approximately $291.97 per share of Class A common stock. The conversion rate and conversion price will be
subject to customary adjustments upon the occurrence of certain events. In addition, if certain corporate events that constitute a “Make-Whole Fundamental Change” (as defined in the Indenture) occur, then the conversion rate will, in certain
circumstances, be increased for a specified period of time.
The Notes will be redeemable, in whole or in part (subject to certain limitations described below), at the Company’s option at any time,
and from time to time, on or after May 20, 2028 and on or before the 20th scheduled trading day immediately before the maturity date, at a cash redemption price equal to the principal amount of the Notes to be redeemed, plus accrued and unpaid
special interest and additional interest, if any, to, but excluding, the redemption date, but only if (i) the Notes are “Freely Tradable” (as defined in the Indenture), and all accrued and unpaid additional interest, if any, has been paid, as of the
date the Company sends the related redemption notice and (ii) the last reported sale price per share of the Company’s Class A common stock exceeds 130% of the conversion price on (1) each of at least 20 trading days, whether or not consecutive,
during the 30 consecutive trading days ending on, and including, the trading day immediately before the date the Company sends such redemption notice and (2) the trading day immediately before the date the Company sends such redemption notice.
However, the Company may not redeem less than all of the outstanding Notes unless at least $150.0 million aggregate principal amount of Notes are outstanding and not called for redemption as of the time the Company sends the related redemption
notice. In addition, calling any Note for redemption will constitute a Make-Whole Fundamental Change with respect to that Note, in which case the conversion rate applicable to the conversion of that Note will be increased in certain circumstances if
it is converted after it is called for redemption.
If certain corporate events that constitute a “Fundamental Change” (as defined in the Indenture) occur, then, subject to a limited
exception for certain cash mergers, noteholders may require the Company to repurchase their Notes at a cash repurchase price equal to the principal amount of the Notes to be repurchased, plus accrued and unpaid special interest and additional
interest, if any, to, but excluding, the fundamental change repurchase date. The definition of Fundamental Change includes, among other things, certain business combination transactions involving the Company and certain de-listing events with respect
to the Company’s Class A common stock.
The Notes will have customary provisions relating to the occurrence of “Events of Default” (as defined in the Indenture), which include
the following: (i) certain payment defaults on the Notes (which, in the case of a default in the payment of special or additional interest on the Notes, will be subject to a 30-day cure period); (ii) the Company’s failure to send certain notices
under the Indenture within specified periods of time, subject to applicable cure periods, (iii) the Company’s failure to comply with certain covenants in the Indenture relating to the Company’s
ability to consolidate with or merge with or into, or sell, lease or otherwise transfer, in one transaction or a series of transactions, all or substantially all of the assets of the Company and its subsidiaries, taken as a whole, to another person;
(iv) a default by the Company in its obligation to convert a note in accordance with the Indenture upon the exercise of the conversion right with respect thereto, if not cured within three business days after its occurrence; (v) a default by the
Company in its other obligations or agreements under the Indenture or the Notes if such default is not cured or waived within 60 days after notice is given in accordance with the Indenture; (vi) certain defaults by the Company or any of its
significant subsidiaries with respect to indebtedness for borrowed money of at least $150.0 million; and (vii) certain events of bankruptcy, insolvency and reorganization involving the Company or any of the Company’s significant subsidiaries.
If an Event of Default involving bankruptcy, insolvency or reorganization events with respect to the Company occurs, then the principal
amount of, and all accrued and unpaid special interest and additional interest, if any, on, all of the Notes then outstanding will immediately become due and payable without any further action or notice by any person. If any other Event of Default
occurs and is continuing, then, the (i) Trustee, by notice to the Company, or (ii) noteholders of at least 25% of the aggregate principal amount of Notes then outstanding, by notice to the Company and the Trustee, may declare the principal amount of,
and all accrued and unpaid special and additional interest, if any, on, all of the Notes then outstanding to become due and payable immediately. However, notwithstanding the foregoing, the Company may elect, at its option, that the sole remedy for an
Event of Default relating to certain failures by the Company to comply with certain reporting covenants in the Indenture consists exclusively of the right of the noteholders to receive special interest on the Notes for up to 365 days at a specified
rate per annum not exceeding 0.50% on the principal amount of the Notes.
In certain circumstances if, at any time during the six-month period beginning on, and including, the date that is six months after the
last date of original issuance of the Notes, the Company fails to timely file certain reports required to be filed with the SEC under the U.S. Securities Exchange Act of 1934, as amended, or the Notes are not otherwise Freely Tradable by holders of
the Notes other than the Company’s affiliates, additional interest will accrue on the Notes during the period in which the Company’s failure to file has occurred and is continuing or such Notes are not otherwise Freely Tradable by holders other than
the Company’s affiliates.
In addition, if, and for so long as, the restrictive legend on the Notes has not been removed in accordance with the terms of the
Indenture and the Notes, the Notes are assigned a restricted CUSIP number or the Notes are not otherwise Freely Tradable by holders other than the Company’s affiliates (without restrictions pursuant to U.S. securities laws or the terms of the
Indenture or the Notes) as of the 15th day after the one-year anniversary of the last date of original issuance of the Notes, the Company will accrue additional interest on the Notes with respect to the period in which the Notes remain so restricted.
The above description of the Indenture and the Notes is a summary and is not complete. A copy of the Indenture and the form of the
certificate representing the Notes are filed as Exhibits 4.1 and 4.2, respectively, to this Current Report on Form 8-K and are incorporated by reference herein. The foregoing summary is qualified by reference to the terms of the Indenture and the
Notes set forth in such exhibits.
Convertible Note Hedge and Warrant Transactions
On May 27, 2025, in connection with the previously announced pricing of the offering of the Notes, the Company entered into privately
negotiated convertible note hedge transactions and warrant transactions with certain financial institutions (the “Option Counterparties”). In addition, on May 28, 2025, in connection with the initial purchasers’ exercise of their option to purchase
additional Notes, the Company entered into additional convertible note hedge transactions and additional warrant transactions with such Option Counterparties (such initial and additional transactions, collectively, the “Convertible Note Hedge and
Warrant Transactions”). The convertible note hedge transactions cover, subject to anti-dilution adjustments substantially similar to those applicable to the Notes, the aggregate number of shares of the Company’s Class A common stock that initially
underlie the Notes, and are expected generally to reduce potential dilution to the Company’s Class A common stock upon any conversion of Notes and/or offset any cash payments the Company is required to make in excess of the principal amount of
converted Notes, as the case may be. The warrant transactions could separately have a dilutive effect with respect to the Company’s Class A common stock to the extent that the market price per share of the Company’s Class A common stock exceeds the
strike price of the warrants, unless the Company elects, subject to certain conditions, to settle the warrants in cash.
The above description of the Convertible Note Hedge and Warrant Transactions is a summary and is not complete. A copy of the forms of the
Convertible Note Hedge Confirmation and the Warrant Confirmation executed by the Company and each Option Counterparty as of the dates specified above, forms of which are attached hereto as Exhibit 10.1 and 10.2, respectively, to this Current Report
on Form 8-K, and are incorporated by reference herein. The foregoing summary is qualified by reference to the terms of the Convertible Note Hedge Confirmation and the Warrant Confirmation set forth in such exhibits.
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Item 2.03.
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Creation of a Direct Financial Obligation or an Off-Balance Sheet Arrangement.
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The disclosure set forth in Item 1.01 above is incorporated by reference into this Item 2.03.
| Item 3.02. |
Unregistered Sales of Equity Securities.
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The disclosure set forth in Item 1.01 above is incorporated by reference into this Item 3.02. The Notes were issued to the initial
purchasers in reliance upon Section 4(a)(2) of the U.S. Securities Act of 1933, as amended (the “Securities Act”), in transactions not involving any public offering. The Notes were resold by the initial purchasers to persons whom the initial
purchasers reasonably believe are “qualified institutional buyers” as defined in, and in accordance with, Rule 144A under the Securities Act. Any shares of the Company’s Class A common stock that may be issued upon conversion of the Notes will be
issued in reliance upon Section 3(a)(9) of the Securities Act as involving an exchange by the Company exclusively with its security holders. Initially, a maximum of 13,421,650 shares of the Company’s Class A common stock may be issued upon conversion
of the Notes, based on the initial maximum conversion rate of 4.8806 shares of Class A common stock per $1,000 principal amount of Notes, which is subject to customary anti-dilution adjustment provisions. The warrants were sold to the Option
Counterparties in reliance on the exemption from the registration requirements provided by Section 4(a)(2) of the Securities Act. A maximum of 18,837,502 shares of the Company’s Class A common stock may be issued upon exercise and settlement or
termination of the warrants. Additional information pertaining to the Notes, the shares of the Company’s Class A common stock issuable upon conversion of the Notes and the exercise of the warrants is contained in Item 1.01 of this report and is
incorporated herein by reference. This Current Report on Form 8-K is neither an offer to sell, nor a solicitation of an offer to buy, any security and shall not constitute an offer, solicitation or sale in any jurisdiction in which such offer,
solicitation or sale would be unlawful.
| Item 8.01. |
Other Events.
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On May 30, 2025, the Company issued a press release announcing the closing of its offering of $2.75 billion aggregate principal amount of its Notes and the consummation of the Convertible Note Hedge and Warrant Transactions. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Neither this Current Report on Form 8-K nor the press release attached hereto as Exhibit 99.1 constitutes an offer to sell, or the
solicitation of an offer to buy, the notes or the shares of Class A common stock, if any, issuable upon conversion of the notes.
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Item 9.01.
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Financial Statements and Exhibits.
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Exhibits.
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Exhibit
No.
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Description
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Indenture, dated as of May 30, 2025, between DoorDash, Inc. and U.S. Bank Trust Company, National Association, as trustee.
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Form of 0% Convertible Senior Notes due 2030 (included as Exhibit A to Exhibit 4.1).
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Form of Convertible Note Hedge Confirmation between DoorDash, Inc. and each Option Counterparty.
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Form of Warrant Confirmation between DoorDash, Inc. and each Option Counterparty.
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Closing Press Release issued by DoorDash, Inc., dated May 30, 2025.
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104
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Cover Page Interactive Data File (embedded within the Inline XBRL document).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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DOORDASH, INC.
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Date: June 2, 2025
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By:
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/s/ Tony Xu
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Name:
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Tony Xu
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Title:
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Chief Executive Officer
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Exhibit 4.1
DOORDASH, INC.
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee
INDENTURE
Dated as of May 30, 2025
0% Convertible Senior Notes due 2030
TABLE OF CONTENTS
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Article 1. Definitions; Rules of Construction
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1
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Section 1.01.
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Definitions.
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1
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Section 1.02.
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Other Definitions.
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14
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Section 1.03.
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Rules of Construction.
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15
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Article 2. The Notes
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16
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Section 2.01.
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Form, Dating and Denominations.
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16
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Section 2.02.
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Execution, Authentication and Delivery.
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16
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Section 2.03.
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Initial Notes and Additional Notes.
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17
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Section 2.04.
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Method of Payment.
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17
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Section 2.05.
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No Regular Interest; Accrual and Payment of Special Interest and Additional Interest; Defaulted Amounts; When Payment Date is Not a Business Day.
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18
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Section 2.06.
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Registrar, Paying Agent and Conversion Agent.
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19
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Section 2.07.
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Paying Agent and Conversion Agent to Hold Property in Trust.
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20
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Section 2.08.
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Holder Lists.
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21
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Section 2.09.
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Legends.
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21
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Section 2.10.
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Transfers and Exchanges; Certain Transfer Restrictions.
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22
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Section 2.11.
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Exchange and Cancellation of Notes to Be Converted or to Be Repurchased Pursuant to a Repurchase Upon Fundamental Change or Redemption.
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26
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Section 2.12.
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Removal of Transfer Restrictions.
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27
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Section 2.13.
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Replacement Notes.
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28
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Section 2.14.
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Registered Holders; Certain Rights with Respect to Global Notes.
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28
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Section 2.15.
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Cancellation.
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28
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Section 2.16.
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Notes Held by the Company or its Affiliates.
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29
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Section 2.17.
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Temporary Notes.
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29
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Section 2.18.
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Outstanding Notes.
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29
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Section 2.19.
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Repurchases by the Company.
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30
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Section 2.20.
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CUSIP and ISIN Numbers.
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30
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Article 3. Covenants
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30
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Section 3.01.
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Payment on Notes.
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30
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Section 3.02.
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Exchange Act Reports.
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31
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Section 3.03.
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Rule 144A Information.
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31
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Section 3.04.
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Additional Interest.
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31
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Section 3.05.
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Compliance and Default Certificates.
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34
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Section 3.06.
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Stay, Extension and Usury Laws.
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34
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Section 3.07.
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Acquisition of Notes by the Company and its Affiliates.
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34
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Article 4. Repurchase and Redemption
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34
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Section 4.01.
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No Sinking Fund.
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34
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- i -
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Section 4.02.
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Right of Holders to Require the Company to Repurchase Notes Upon a Fundamental Change.
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35
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Section 4.03.
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Right of the Company to Redeem the Notes.
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39
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Article 5. The Conversion of Notes
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42
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Section 5.01.
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Right to Convert.
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42
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Section 5.02.
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Conversion Procedures.
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46
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Section 5.03.
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Settlement Upon Conversion.
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48
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Section 5.04.
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Reserve and Status of Common Stock Issued Upon Conversion.
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51
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Section 5.05.
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Adjustments to the Conversion Rate.
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51
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Section 5.06.
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Voluntary Adjustments.
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61
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Section 5.07.
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Adjustments to the Conversion Rate in Connection with a Make-Whole Fundamental Change.
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61
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Section 5.08.
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Exchange in Lieu of Conversion.
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63
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Section 5.09.
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Effect of Common Stock Change Event.
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63
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| Article 6. Successors | 65 |
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Section 6.01.
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When the Company May Merge, Etc.
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65
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Section 6.02.
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Successor Entity Substituted.
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66
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Section 6.03.
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Exclusion for Asset Transfers with Wholly Owned Subsidiaries.
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66
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Article 7. Defaults and Remedies
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66
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Section 7.01.
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Events of Default.
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66
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Section 7.02.
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Acceleration.
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68
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Section 7.03.
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Sole Remedy for a Failure to Report.
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69
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Section 7.04.
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Other Remedies.
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70
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Section 7.05.
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Waiver of Past Defaults.
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70
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Section 7.06.
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Cure of Defaults; Ability to Cure or Waive Before Event of Default Occurs.
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70
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Section 7.07.
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Control by Majority.
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71
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Section 7.08.
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Limitation on Suits.
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71
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Section 7.09.
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Absolute Right of Holders to Institute Suit for the Enforcement of the Right to Receive Payment and Conversion Consideration.
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71
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Section 7.10.
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Collection Suit by Trustee.
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72
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Section 7.11.
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Trustee May File Proofs of Claim.
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72
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Section 7.12.
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Priorities.
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72
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Section 7.13.
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Undertaking for Costs.
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73
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Article 8. Amendments, Supplements and Waivers
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73
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Section 8.01.
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Without the Consent of Holders.
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73
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Section 8.02.
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With the Consent of Holders.
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74
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Section 8.03.
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Notice of Amendments, Supplements and Waivers.
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75
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Section 8.04.
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Revocation, Effect and Solicitation of Consents; Special Record Dates; Etc.
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75
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Section 8.05.
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Notations and Exchanges.
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76
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Section 8.06.
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Trustee to Execute Supplemental Indentures.
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76
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Article 9. Satisfaction and Discharge
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76
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- ii -
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Section 9.01.
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Termination of Company’s Obligations.
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76
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Section 9.02.
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Repayment to Company.
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77
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Section 9.03.
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Reinstatement.
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77
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Article 10. Trustee
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78 | ||
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Section 10.01.
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Duties of the Trustee.
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78
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Section 10.02.
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Rights of the Trustee.
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79
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Section 10.03.
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Individual Rights of the Trustee.
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80
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Section 10.04.
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Trustee’s Disclaimer.
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80
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Section 10.05.
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Notice of Defaults.
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80
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Section 10.06.
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Compensation and Indemnity.
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81
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Section 10.07.
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Replacement of the Trustee.
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81
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Section 10.08.
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Successor Trustee by Merger, Etc.
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82
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Section 10.09.
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Eligibility; Disqualification.
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83
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Article 11. Miscellaneous
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83
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Section 11.01.
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Notices.
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83
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Section 11.02.
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Delivery of Officer’s Certificate and Opinion of Counsel as to Conditions Precedent.
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85
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Section 11.03.
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Statements Required in Officer’s Certificate and Opinion of Counsel.
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85
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Section 11.04.
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Rules by the Trustee, the Registrar, the Paying Agent and the Conversion Agent.
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85
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Section 11.05.
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No Personal Liability of Directors, Officers, Employees and Stockholders.
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86
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Section 11.06.
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Governing Law; Waiver of Jury Trial.
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86
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Section 11.07.
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Submission to Jurisdiction.
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86
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Section 11.08.
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No Adverse Interpretation of Other Agreements.
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86
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Section 11.09.
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Successors.
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86
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Section 11.10.
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Force Majeure.
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87
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Section 11.11.
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U.S.A. PATRIOT Act.
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87
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Section 11.12.
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Calculations.
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87
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Section 11.13.
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Severability.
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87
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Section 11.14.
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Counterparts.
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87
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Section 11.15.
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Table of Contents, Headings, Etc.
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88
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Section 11.16.
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Withholding Taxes.
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88
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Exhibits
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Exhibit A: Form of Note
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A-1
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Exhibit B-1: Form of Restricted Note Legend
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B1-1
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Exhibit B-2: Form of Global Note Legend
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B2-1
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Exhibit B-3: Form of Non-Affiliate Legend
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B3-1
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INDENTURE,
dated as of May 30, 2025, between DoorDash, Inc., a Delaware corporation, as issuer (the “Company”), and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”).
Each party to this Indenture (as defined below) agrees as follows for the benefit of the other party and for the equal and ratable benefit of the
Holders (as defined below) of the Company’s 0% Convertible Senior Notes due 2030 (the “Notes”).
Article 1. DEFINITIONS; RULES OF CONSTRUCTION
Section 1.01. Definitions.
“Additional Interest” means any interest that accrues on any Note pursuant to
Section 3.04.
“Affiliate” has the meaning set forth in Rule 144 as in effect on the Issue
Date.
“Affiliated Party” means, with respect to any natural person: (i) any trust for the benefit of the such natural person or any one or more members of such natural person’s immediate family; (ii) any company, partnership, trust, foundation, “qualified
retirement plan” (as defined below) or other entity or investment vehicle for which such natural person (or such natural person’s estate) retains dispositive or voting power with respect to the Class A Common Stock, the Class B Common Stock or the
Class C Common Stock (or such other Common Equity into which the Class B Common Stock or Class C Common Stock has been converted into, or exchanged for, in an event analogous to a Common Stock Change Event) held by such company, partnership, trust,
foundation, plan or other entity or investment vehicle; (iii) the trustees, legal representatives, beneficiaries and beneficial owners, but solely in such capacity, of any company, partnership, trust, foundation, plan or other entity or investment
vehicle referred to in the preceding clauses (i) or (ii); and (iv) the estates of such natural person (it being understood, for the avoidance of doubt, that this clause (iv) will not cover any person to whom any securities are transferred from any
such estate). For purposes of this definition, “qualified retirement plan” means any individual retirement account, as defined in Section 408(a) of the Code, or a pension, profit sharing, stock bonus or other type of plan or trust of which such
natural person is a participant or beneficiary and that satisfies the requirements for qualification under Section 401 of the Code, or any comparable structure established under the laws of any relevant jurisdiction.
“Authorized Denomination” means, with respect to a Note, any principal amount
thereof that is no less than $1,000 and that is also an integral multiple of $1,000.
“Bankruptcy Law” means Title 11, United States Code, or any similar U.S.
federal or state or non-U.S. law for the relief of debtors.
“Bid Solicitation Agent” means the Person who is required to obtain bids for
the Trading Price in accordance with Section 5.01(C)(i)(2) and the definition of “Trading Price.” The initial Bid Solicitation Agent on the Issue Date will be the Company; provided, however, that the Company may appoint any other Person (including any of the Company’s
Subsidiaries) to be the Bid Solicitation Agent at any time after the Issue Date without prior notice.
- 1 -
“Board of Directors” means the board of directors of the Company or a
committee of such board duly authorized to act on behalf of such board.
“Business Day” means any day other than a Saturday, a Sunday or any 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” of any Person means any and all shares of, interests in,
rights to purchase, warrants or options for, participations in, or other equivalents of, in each case however designated, the equity of such Person, but excluding any debt securities convertible into, or exchangeable for, such equity.
“Class A Common Stock” means the Class A common stock, $0.00001 par value per
share, of the Company, subject to Section 5.09.
“Class B Common Stock” means the Class B common stock, $0.00001 par value per
share, of the Company, or any other class of the Company’s common equity, if any, into which the Class B Common Stock is reclassified or converted, or for which the Class B Common Stock is exchanged, in connection with a transaction akin to a Common
Stock Change Event but with respect to the Class B Common Stock (excluding, for the avoidance of doubt, the conversion of any of the Class B Common Stock into Class A Common Stock in accordance with the terms of the Class B Common Stock).
“Class C Common Stock” means the Class C common stock, $0.00001 par value per
share, of the Company, or any other class of the Company’s common equity, if any, into which the Class C Common Stock is reclassified or converted, or for which the Class C Common Stock is exchanged, in connection with a transaction akin to a Common
Stock Change Event but with respect to the Class C Common Stock (excluding, for the avoidance of doubt, the conversion of any of the Class C Common Stock into Class A Common Stock in accordance with the terms of the Class C Common Stock).
“Close of Business” means 5:00 p.m., New York City time.
“Code” means the Internal Revenue Code of 1986, as amended.
“Common Equity” of any Person means the Capital Stock of such Person that is
generally entitled to vote in the election of directors of such Person (or, if such Person is not a corporation, generally entitled to vote in the election, or otherwise participate in the selection, of the governing body, partners, managers or
others that control the management or policies of such Person).
“Company” means the Person named as such in the first paragraph of this
Indenture and, subject to Article 6, its successors and assigns.
“Company Order” means a written request or order signed on behalf of the
Company by one of its Officers and delivered to the Trustee.
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“Conversion” means, with respect to any Note, the conversion of such note
pursuant to Article 5 into Conversion Consideration. The terms “Convert,” “Converted,” “Convertible,” “Converting” and similar capitalized terms have meanings correlative to the
foregoing.
“Conversion Date” means, with respect to a Note, the first Business Day on
which the requirements set forth in Section 5.02(A) to Convert such Note are satisfied.
“Conversion Price” means, as of any time, an amount equal to (A) one thousand
dollars ($1,000) divided by (B) the Conversion Rate in effect at such time.
“Conversion Rate” initially means 3.4250 shares of Class A Common Stock per
$1,000 principal amount of Notes; provided, however, that the Conversion Rate is subject to adjustment
pursuant to Article 5; provided, further,
that whenever this Indenture refers to the Conversion Rate as of a particular date without setting forth a particular time on such date, such reference will be deemed to be to the Conversion Rate immediately after the Close of Business on such date.
“Conversion Share” means any share of Class A Common Stock issued or issuable
upon Conversion of any Note.
“Daily Cash Amount” means, with respect to any VWAP Trading Day, the lesser of
(A) the applicable Daily Maximum Cash Amount; and (B) the Daily Conversion Value for such VWAP Trading Day.
“Daily Conversion Value” means, with respect to any VWAP Trading Day,
one-twentieth (1/20th) of the product of (A) the Conversion Rate on such VWAP Trading Day; and (B) the Daily VWAP per share of Class A Common Stock on such VWAP Trading Day.
“Daily Maximum Cash Amount” means, with respect to the Conversion of any Note,
the quotient obtained by dividing (A) the Specified Dollar Amount applicable to such Conversion by (B) twenty (20).
“Daily Share Amount” means, with respect to any VWAP Trading Day during the
Observation Period for the conversion of any Note, the quotient obtained by dividing (A) the excess, if any, of the Daily Conversion Value for such VWAP Trading Day over the applicable Daily Maximum Cash Amount by (B) the Daily VWAP for such VWAP
Trading Day. For the avoidance of doubt, the Daily Share Amount will be zero for such VWAP Trading Day if such Daily Conversion Value does not exceed such Daily Maximum Cash Amount.
“Daily VWAP” means, for any VWAP Trading Day, the per share volume-weighted
average price of the Class A Common Stock as displayed under the heading “Bloomberg VWAP” on Bloomberg page “DASH <EQUITY> AQR” (or, if such page is not available, its equivalent successor page) in respect of the period from the scheduled open
of trading until the scheduled close of trading of the primary trading session on such VWAP Trading Day (or, if such volume-weighted average price is unavailable, the market value of one share of Class A Common Stock on such VWAP Trading Day,
determined, using a volume-weighted average price method, by a nationally recognized independent investment banking firm selected by the Company, which may include any of the Initial Purchasers). The Daily VWAP will be determined without regard to
after-hours trading or any other trading outside of the regular trading session.
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“De-Legending Deadline Date” means, with respect to any Note, the fifteenth
(15th) day after the Free Trade Date of such Note; provided, however, that if such fifteenth (15th)
day is after an Interest Record Date and on or before the fifth (5th) Business Day immediately after the next Interest Payment Date, then the De-Legending Deadline Date for such Note will instead be the fifth (5th) Business Day immediately after such
Interest Payment Date.
“Default” means any event that is (or, after notice, passage of time or both,
would be) an Event of Default.
“Default Settlement Method” means Combination Settlement with a Specified
Dollar Amount of $1,000 per $1,000 principal amount of Notes; provided, however, that (x) subject to Section 5.03(A)(iii), the Company may, from time to time, change the Default Settlement Method, to any Settlement Method that the Company is then permitted to elect, by sending
notice of the new Default Settlement Method to the Holders, the Trustee and the Conversion Agent (it being understood that no such change will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note
pursuant to this Indenture); and (y) the Default Settlement Method will be subject to Section 5.03(A)(ii).
“Depositary” means The Depository Trust Company or its successor.
“Depositary Participant” means any member of, or participant in, the
Depositary.
“Depositary Procedures” means, with respect to any Conversion, transfer,
exchange or other transaction involving a Global Note or any beneficial interest therein, the rules and procedures of the Depositary applicable to such Conversion, transfer, exchange or transaction.
“Effective Date” means, with respect to a stock split or stock combination of the
Class A Common Stock, the first date on which the shares of Class A Common Stock trade on the relevant stock exchange, regular way, reflecting the relevant stock split or stock combination, as applicable.
“Ex-Dividend Date” means, with respect to an issuance, dividend or
distribution on the Class A Common Stock, the first date on which shares of Class A Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive such issuance, dividend or distribution
(including pursuant to due bills or similar arrangements required by the relevant stock exchange). For the avoidance of doubt, any alternative trading convention on the applicable exchange or market in respect of the Class A Common Stock under a
separate ticker symbol or CUSIP number will not be considered “regular way” for this purpose.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Exempted Fundamental Change” means any Fundamental Change with respect to
which, in accordance with Section 4.02(I), the Company does not offer to repurchase any Notes.
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“Free Trade Date” means, with respect to any Note, the date that is one (1)
year after the Last Original Issue Date of such Note.
“Freely Tradable” means, with respect to any Note, that such Note would be
eligible to be offered, sold or otherwise transferred pursuant to Rule 144 or otherwise if held by a Person that is not an Affiliate of the Company, and that has not been an Affiliate of the Company during the immediately preceding three (3) months,
without any requirements as to volume, manner of sale, availability of current public information or notice under the Securities Act (except that, during the six (6) month period beginning on, and including, the date that is six (6) months after the
Last Original Issue Date of such Note, any such requirement as to the availability of current public information will be disregarded if the same is satisfied at that time); provided,
however, that from and after the Free Trade Date of such Note, such Note will not be “Freely Tradable” unless such Note (x) is not identified by a “restricted” CUSIP or ISIN
number; and (y) is not represented by any certificate that bears the Restricted Note Legend. For the avoidance of doubt, whether a Note is deemed to be identified by a “restricted” CUSIP or ISIN number or to bear the Restricted Note Legend is subject
to Section 2.12.
“Fundamental Change” means any of the following events:
(A) (i) a “person” or “group” (within the
meaning of Section 13(d)(3) of the Exchange Act), other than the Company, its Wholly Owned Subsidiaries, any employee benefit plans of the Company or the Company’s wholly owned subsidiaries or any Permitted Party, files any report with the SEC
indicating that such person or group has become the direct or indirect “beneficial owner” (as defined below) of shares of Common Equity representing more than fifty percent (50%) of the voting power of all Common Equity; or (ii) any Permitted
Party files (or Permitted Parties file) any report (or reports) with the SEC indicating that such Permitted Party has (or Permitted Parties have) become the direct or indirect “beneficial owner” of shares of Class A Common Stock representing more
than 50.0% of then-outstanding Class A Common Stock (excluding, for the avoidance of doubt, for purpose of this clause (B), any shares of Class A Common Stock that such Permitted Party or Permitted Parties beneficially owns solely by virtue of
its beneficial ownership of Class B Common Stock or Class C Common Stock);
(B) the consummation of: (i) any sale,
lease or other transfer, in one transaction or a series of transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person, other than solely to the Company or one or more of the
Company’s Wholly Owned Subsidiaries; or (ii) any transaction or series of related transactions in connection with which (whether by means of merger, consolidation, share exchange, combination, reclassification, recapitalization, acquisition,
liquidation or otherwise) all of the Class A Common Stock is exchanged for, converted into, acquired for, or constitutes solely the right to receive, other securities, cash or other property; provided, however, that any merger, consolidation, share exchange or combination of the Company pursuant to which the Persons that directly or
indirectly “beneficially owned” (as defined below) all classes of the Company’s Common Equity immediately before such transaction directly or indirectly “beneficially own,” immediately after such transaction, more than fifty percent (50%) of all
classes of Common Equity of the surviving, continuing or acquiring company or other transferee, as applicable, or the parent thereof, in substantially the same proportions vis-à-vis each other as immediately before such transaction will be deemed
not to be a Fundamental Change pursuant to this clause (B);
- 5 -
(C) the Company’s stockholders approve any
plan or proposal for the liquidation or dissolution of the Company; or
(D) the Class A Common Stock ceases to be
listed on any of The New York Stock Exchange, The Nasdaq Global Market or The Nasdaq Global Select Market (or any of their respective successors);
provided, however, that a transaction or event described in clause (A) or (B)
above will not constitute a Fundamental Change if at least ninety percent (90%) of the consideration received or to be received by the holders of Class A Common Stock (excluding cash payments for fractional shares or pursuant to dissenters rights),
in connection with such transaction or event, consists of shares of common stock or other corporate Common Equity interests listed (or depositary receipts representing shares of common stock or other corporate Common Equity interests, which
depositary receipts are listed) on any of The New York Stock Exchange, The Nasdaq Global Market or The Nasdaq Global Select Market (or any of their respective successors), or that will be so listed when issued or exchanged in connection with such
transaction or event, and such transaction or event constitutes a Common Stock Change Event whose Reference Property consists of such consideration.
For the avoidance of doubt, references in this definition to the Company, the Class A Common Stock and the Company’s Common Equity will be subject to
(x) Article 6 and (y) Section 5.09(A)(1)(III).
For the purposes of this definition, (x) any transaction or event described in both clause
(A) and in clause (B)(i) or (ii) above (without regard to the proviso in clause (B)) will be deemed to occur solely pursuant to clause (B) above (subject to such proviso) and (y)
whether a Person is a “beneficial owner,” whether shares are “beneficially owned” and percentage
beneficial ownership will be determined in accordance with Rule 13d-3 under the Exchange Act.
“Fundamental Change Repurchase Date” means the date fixed for the repurchase
of any Notes by the Company pursuant to a Repurchase Upon Fundamental Change.
“Fundamental Change Repurchase Notice” means a notice (including a notice
substantially in the form of the “Fundamental Change Repurchase Notice” set forth in Exhibit A) containing the information, or otherwise complying with the requirements, set
forth in Section 4.02(F)(i) and Section 4.02(F)(ii).
“Fundamental Change Repurchase Price” means the cash price payable by the
Company to repurchase any Note upon its Repurchase Upon Fundamental Change, calculated pursuant to Section 4.02(D).
“Global Note” means a Note that is represented by a certificate substantially
in the form set forth in Exhibit A, registered in the name of the Depositary or its nominee, duly
executed by the Company and authenticated by the Trustee, and deposited with the Trustee, as custodian for the Depositary.
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“Global Note Legend” means a legend substantially in the form set forth in Exhibit B-2.
“Holder” means a person in whose name a Note is registered on the Registrar’s
books.
“Indenture” means this Indenture, as amended or supplemented from time to
time.
“Initial Purchasers” means the several initial purchasers named in Schedule 1
to the Purchase Agreement.
“Interest Payment Date” means, as applicable, with respect to a Note, each May
15 and November 15 of each year. For the avoidance of doubt, the Maturity Date is an Interest Payment Date.
“Interest Record Date” has the following meaning with respect to an Interest
Payment Date: (A) if such Interest Payment Date occurs on May 15, the immediately preceding May 1; and (B) if such Interest Payment Date occurs on November 15, the immediately preceding November 1.
“Issue Date” means May 30, 2025.
“Last Original Issue Date” means (A) with respect to any Notes issued pursuant
to the Purchase Agreement , and any Notes issued in exchange therefor or in substitution thereof, the Issue Date; and (B) with respect to any Notes issued pursuant to Section 2.03(B),
and any Notes issued in exchange therefor or in substitution thereof, either (i) the later of (x) the date such Notes are originally issued and (y) the last date any Notes are originally issued as part of the same offering pursuant to the exercise of
an option granted to the initial purchaser(s) of such Notes to purchase additional Notes; or (ii) such other date as is specified in an Officer’s Certificate delivered to the Trustee before the original issuance of such Notes.
“Last Reported Sale Price” of the Class A Common Stock for any Trading Day
means the closing sale price per share (or, if no closing sale price is reported, the average of the last bid price and the last ask price per share or, if more than one in either case, the average of the average last bid prices and the average last
ask prices per share) of Class A Common Stock on such Trading Day as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Class A Common Stock is then listed. If the Class A Common Stock is
not listed on a U.S. national or regional securities exchange on such Trading Day, then the Last Reported Sale Price will be the last quoted bid price per share of Class A Common Stock on such Trading Day in the over-the-counter market as reported by
OTC Markets Group Inc. or a similar organization. If the Class A Common Stock is not so quoted on such Trading Day, then the Last Reported Sale Price will be the average of the mid-point of the last bid price and the last ask price per share of Class
A Common Stock on such Trading Day from a nationally recognized independent investment banking firm selected by the Company, which may include any of the Initial Purchasers. Neither the Trustee nor the Conversion Agent will have any duty to determine
the Last Reported Sale Price.
- 7 -
“Make-Whole Fundamental Change” means (A) a Fundamental Change (determined
after giving effect to the proviso immediately after clause (D) of the definition thereof, but without regard to the proviso to clause (B)(ii) of such definition); or (B) the sending of a Redemption Notice pursuant to Section 4.03(F); provided, however, that, subject to Section 4.03(I), the sending
of a Redemption Notice will constitute a Make-Whole Fundamental Change only with respect to the Notes called for Redemption pursuant to such Redemption Notice and not with respect to any other Notes.
“Make-Whole Fundamental Change Conversion Period” has the following meaning:
(A) in the case of a Make-Whole Fundamental
Change pursuant to clause (A) of the definition thereof, the period from, and including, the Make-Whole Fundamental Change Effective Date of such Make-Whole Fundamental
Change to, and including, the thirty-fifth (35th) Trading Day after such Make-Whole Fundamental Change Effective Date (or, if such Make-Whole Fundamental Change also constitutes a Fundamental Change (other than an Exempted Fundamental Change),
to, but excluding, the related Fundamental Change Repurchase Date); and
(B) in the case of a Make-Whole Fundamental
Change pursuant to clause (B) of the definition thereof, the period from, and including, the Redemption Notice Date for the related Redemption to, and including, the second
(2nd) Business Day immediately before the related Redemption Date;
provided, however, that if the Conversion Date for the Conversion of a Note that has been called for Redemption occurs during the Make-Whole Fundamental Change Conversion Period for both a Make-Whole Fundamental Change
occurring pursuant to clause (A) of the definition of “Make-Whole Fundamental Change” and a Make-Whole Fundamental Change resulting from such Redemption pursuant to clause (B) of such definition, then, notwithstanding anything to the contrary in Section 5.07, solely for
purposes of such Conversion, (x) such Conversion Date will be deemed to occur solely during the Make-Whole Fundamental Change Conversion Period for the Make-Whole Fundamental Change with the earlier Make-Whole Fundamental Change Effective Date; and
(y) the Make-Whole Fundamental Change with the later Make-Whole Fundamental Change Effective Date will be deemed not to have occurred.
“Make-Whole Fundamental Change Effective Date” means (A) with respect to a
Make-Whole Fundamental Change pursuant to clause (A) of the definition thereof, the date on which such Make-Whole Fundamental Change occurs or becomes effective; and (B) with
respect to a Make-Whole Fundamental Change pursuant to clause (B) of the definition thereof, the applicable Redemption Notice Date.
“Market Disruption Event” means, with respect to any date, the occurrence or
existence, during the one-half hour period ending at the scheduled close of trading on such date on the principal U.S. national or regional securities exchange or other market on which the Class A Common Stock is listed for trading or trades, of any
material suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Class A Common Stock or in any options contracts or futures contracts relating to the Class
A Common Stock.
- 8 -
“Maturity Date” means May 15, 2030.
“Non-Affiliate Legend” means a legend substantially in the form set forth in Exhibit B-3.
“Note Agent” means any Registrar, Paying Agent or Conversion Agent.
“Notes” means the 0% Convertible Senior Notes due 2030 issued by the Company
pursuant to this Indenture.
“Observation Period” means, with respect to any Note to be Converted, (A)
subject to clause (B) below, if the Conversion Date for such Note occurs before November 15, 2029, the twenty (20) consecutive VWAP Trading Days beginning on, and including, the
second (2nd) VWAP Trading Day immediately after such Conversion Date; (B) if such Conversion Date occurs on or after the date the Company has sent a Redemption Notice calling such Note for Redemption pursuant to Section 4.03(F) and on or before the second (2nd) Business Day before the related Redemption Date, the twenty (20) consecutive VWAP Trading Days beginning on, and including, the twenty-first (21st) Scheduled
Trading Day immediately before such Redemption Date; and (C) subject to clause (B) above, if such Conversion Date occurs on or after November 15, 2029, the twenty (20)
consecutive VWAP Trading Days beginning on, and including, the twenty-first (21st) Scheduled Trading Day immediately before the Maturity Date.
“Officer” means the Chairman of the Board of Directors, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice President of the Company.
“Officer’s Certificate” means a certificate that is signed on behalf of the
Company by one (1) of its Officers and that meets the requirements of Section 11.03.
“Open of Business” means 9:00 a.m., New York City time.
“Opinion of Counsel” means an opinion, from legal counsel (including an
employee of, or counsel to, the Company or any of its Subsidiaries) reasonably acceptable to the Trustee, that meets the requirements of Section 11.03, subject to customary
qualifications and exclusions.
“Permitted Party” means (i) any of Tony Xu, Andy Fang and Stanley Tang, (ii)
any of the respective “affiliated parties” (as defined above) of the persons referred to in clause (i) and (iii) any “person” or “group” within the meaning of Section 13(d) of the Exchange Act of which any of the persons referred to in clause (i) or
(ii) are members; provided that, with respect to this clause (iii), the persons referred to in clauses (i) or (ii), collectively, beneficially own shares of Common Equity
representing more than 50% of the voting power of the shares of Common Equity held by such person or group.
- 9 -
“Person” or “person”
means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof. Any division or series of a
limited liability company, limited partnership or trust will constitute a separate “person” under this Indenture.
“Physical Note” means a Note (other than a Global Note) that is represented by
a certificate substantially in the form set forth in Exhibit A, registered in the name of the Holder of
such Note and duly executed by the Company and authenticated by the Trustee.
“Purchase Agreement” means that certain Purchase Agreement, dated May 27,
2025, between the Company and J.P. Morgan Securities LLC, as representative of the Initial Purchasers.
“Qualified Successor Entity” means, with respect to a Business Combination
Event, a corporation; provided, however, that a limited liability company, limited partnership or
other similar entity will also constitute a Qualified Successor Entity with respect to such Business Combination Event if either (A) such Business Combination Event is an Exempted Fundamental Change; or (B) both of the following conditions are
satisfied: (i) either (x) such limited liability company, limited partnership or other similar entity, as applicable, is treated as a corporation or is a direct or indirect, Wholly Owned Subsidiary of, and disregarded as an entity separate from, a
corporation, in each case for U.S. federal income tax purposes; or (y) the Company has received an opinion of a nationally recognized tax counsel to the effect that such Business Combination Event will not be treated as an exchange under Section 1001
of the Code, for Holders or beneficial owners of the Notes; and (ii) such Business Combination Event constitutes a Common Stock Change Event whose Reference Property consists solely of any combination of cash in U.S. dollars and shares of common
stock or other corporate Common Equity interests of an entity that is (x) treated as a corporation for U.S. federal income tax purposes; (y) duly organized and existing under the laws of the United States of America, any State thereof or the District
of Columbia; and (z) the direct or indirect parent of such limited liability company, limited partnership or other similar entity.
“Redemption” means the repurchase of any Note by the Company pursuant to Section 4.03.
“Redemption Date” means the date fixed, pursuant to Section 4.03(D), for the settlement of the repurchase of any Notes by the Company pursuant to a Redemption.
“Redemption Notice Date” means, with respect to a Redemption, the date on
which the Company sends the Redemption Notice for such Redemption pursuant to Section 4.03(F).
“Redemption Price” means the cash price payable by the Company to redeem any
Note upon its Redemption, calculated pursuant to Section 4.03(E).
“Repurchase Upon Fundamental Change” means the repurchase of any Note by the
Company pursuant to Section 4.02.
- 10 -
“Responsible Officer” means (A) any officer within the corporate trust group
of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of such officers; and (B) with respect to a particular corporate trust matter relating to
this Indenture, any other officer to whom such matter is referred because of his or her knowledge of, and familiarity with, the particular subject, and who, in each case, has direct responsibility for the administration of this Indenture.
“Restricted Note Legend” means a legend substantially in the form set forth in
Exhibit B-1.
“Restricted Stock Legend” means, with respect to any Conversion Share, a
legend substantially to the effect that the offer and sale of such Conversion Share have not been registered under the Securities Act and that such Conversion Share cannot be sold or otherwise transferred except pursuant to a transaction that is
registered under the Securities Act or that is exempt from, or not subject to, the registration requirements of the Securities Act.
“Rule 144” means Rule 144 under the Securities Act (or any successor rule
thereto), as the same may be amended from time to time.
“Rule 144A” means Rule 144A under the Securities Act (or any successor rule
thereto), as the same may be amended from time to time.
“Scheduled Trading Day” means any day that is scheduled to be a Trading Day on
the principal U.S. national or regional securities exchange on which the Class A Common Stock is then listed or, if the Class A Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which
the Class A Common Stock is then traded. If the Class A Common Stock is not so listed or traded, then “Scheduled Trading Day” means a Business Day.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Security” means any Note or Conversion Share.
“Settlement Method” means Cash Settlement or Combination Settlement.
“Significant Subsidiary” means, with respect to any Person, any Subsidiary of
such Person that constitutes a “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X under the Exchange Act) of such Person; provided, however, that, if a Subsidiary meets the criteria of clause (1)(iii) of the definition of “significant subsidiary” in Rule 1-02(w) but not clause (1)(i) or (1)(ii) thereof (or, if
applicable, the respective successor clauses to the aforementioned clauses), then such Subsidiary will be deemed not to be a Significant Subsidiary of such Person unless such Subsidiary’s income from continuing operations before income taxes,
exclusive of amounts attributable to any non-controlling interests, for the last completed fiscal year before the date of determination exceeds one hundred and fifty million dollars ($150,000,000).
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“Special Interest” means any interest that accrues on any Note pursuant to Section 7.03.
“Specified Dollar Amount” means, with respect to the Conversion of a Note to
which Combination Settlement applies, the maximum cash amount per $1,000 principal amount of such Note deliverable upon such Conversion (excluding cash in lieu of any fractional share of Class A Common Stock); provided, however, that in no event will the Specified Dollar Amount be less than $1,000 per $1,000 principal amount of such Note.
“Stock Price” has the following meaning for any Make-Whole Fundamental Change:
(A) if the holders of Class A Common Stock receive only cash in consideration for their shares of Class A Common Stock in such Make-Whole Fundamental Change and such Make-Whole Fundamental Change is pursuant to clause (B) of the definition of “Fundamental Change,” then the Stock Price is the amount of cash paid per share of Class A Common Stock in such Make-Whole Fundamental Change; and (B) in all other cases, the Stock
Price is the average of the Last Reported Sale Prices per share of Class A Common Stock for the five (5) consecutive Trading Days ending on, and including, the Trading Day immediately before the Make-Whole Fundamental Change Effective Date of such
Make-Whole Fundamental Change.
“Subsidiary” means, with respect to any Person, (A) any corporation,
association or other business entity (other than a partnership or limited liability company) of which more than fifty percent (50%) of the total voting power of the Capital Stock entitled (without regard to the occurrence of any contingency, but
after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees, as applicable, of such corporation, association or other business entity is
owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person; and (B) any partnership or limited liability company where (i) more than fifty percent (50%) of the capital accounts, distribution
rights, equity and voting interests, or of the general and limited partnership interests, as applicable, of such partnership or limited liability company are owned or controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of such Person, whether in the form of membership, general, special or limited partnership or limited liability company interests or otherwise; and (ii) such Person or any one or more of the other Subsidiaries of such Person is a
controlling general partner of, or otherwise controls, such partnership or limited liability company.
“Trading Day” means any day on which (A) trading in the Class A Common Stock
generally occurs on the principal U.S. national or regional securities exchange on which the Class A Common Stock is then listed or, if the Class A Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal
other market on which the Class A Common Stock is then traded; and (B) there is no Market Disruption Event. If the Class A Common Stock is not so listed or traded, then “Trading Day” means a Business Day.
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“Trading Price” of the Notes on any Trading Day means the average of the
secondary market bid quotations, expressed as a cash amount per $1,000 principal amount of Notes, obtained by the Bid Solicitation Agent for five million dollars ($5,000,000) (or such lesser amount as may then be outstanding) in principal amount of
Notes at approximately 3:30 p.m., New York City time, on such Trading Day from three (3) nationally recognized independent securities dealers selected by the Company, which may include any of the Initial Purchasers; provided, however, that, if three (3) such bids cannot reasonably be obtained by the Bid Solicitation Agent but two (2) such bids are
obtained, then the average of the two (2) bids will be used, and if only one (1) such bid can reasonably be obtained by the Bid Solicitation Agent, then that one (1) bid will be used. If, on any Trading Day, (A) the Bid Solicitation Agent cannot
reasonably obtain at least one (1) bid for five million dollars ($5,000,000) (or such lesser amount as may then be outstanding) in principal amount of Notes from a nationally recognized independent securities dealer; (B) the Company is not acting as
the Bid Solicitation Agent and the Company fails to instruct the Bid Solicitation Agent to obtain bids when required; or (C) the Bid Solicitation Agent fails to solicit bids when required, then, in each case, the Trading Price per $1,000 principal
amount of Notes on such Trading Day will be deemed to be less than ninety eight percent (98%) of the product of the Last Reported Sale Price per share of Class A Common Stock on such Trading Day and the Conversion Rate on such Trading Day.
“Transfer-Restricted Security” means any Security that constitutes a
“restricted security” (as defined in Rule 144); provided, however, that such Security will cease to be
a Transfer-Restricted Security upon the earliest to occur of the following events:
(A) such Security is sold or otherwise
transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to a registration statement that was effective under the Securities Act at the time of such sale or transfer;
(B) such Security is sold or otherwise
transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to an available exemption (including Rule 144) from the registration and prospectus-delivery requirements of, or in a transaction not subject to, the
Securities Act and, immediately after such sale or transfer, such Security ceases to constitute a “restricted security” (as defined in Rule 144); and
(C) such Security is eligible for resale, by
a Person that is not an Affiliate of the Company and that has not been an Affiliate of the Company during the immediately preceding three (3) months, pursuant to Rule 144 without any limitations thereunder as to volume, manner of sale,
availability of current public information or notice.
The Trustee is under no obligation to determine whether any Security is a Transfer-Restricted Security and may conclusively rely on an Officer’s
Certificate with respect thereto.
“Trust Indenture Act” means the U.S. Trust Indenture Act of 1939, as amended.
“Trustee” means the Person named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of this Indenture and, thereafter, means such successor.
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“VWAP Market Disruption Event” means, with respect to any date, (A) the
failure by the principal U.S. national or regional securities exchange on which the Class A Common Stock is then listed, or, if the Class A Common Stock is not then listed on a U.S. national or regional securities exchange, the principal other market
on which the Class A Common Stock is then traded, to open for trading during its regular trading session on such date; or (B) the occurrence or existence, for more than one half hour period in the aggregate, of any suspension or limitation imposed on
trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Class A Common Stock or in any options contracts or futures contracts relating to the Class A Common Stock, and such suspension or
limitation occurs or exists at any time before 1:00 p.m., New York City time, on such date.
“VWAP Trading Day” means a day on which (A) there is no VWAP Market Disruption
Event; and (B) trading in the Class A Common Stock generally occurs on the principal U.S. national or regional securities exchange on which the Class A Common Stock is then listed or, if the Class A Common Stock is not then listed on a U.S. national
or regional securities exchange, on the principal other market on which the Class A Common Stock is then traded. If the Class A Common Stock is not so listed or traded, then “VWAP Trading Day” means a Business Day.
“Wholly Owned Subsidiary” of a Person means any Subsidiary of such Person,
determined by reference to the definition of “Subsidiary” above but with each reference therein to “more than fifty percent (50%)” deemed to be replaced with “one hundred percent (100%)” for purposes of this definition; provided, however, that directors’ qualifying shares will be disregarded for purposes of determining whether any Person is a
Wholly Owned Subsidiary of another Person.
Section 1.02. Other Definitions.
|
Term
|
Defined in Section
|
|
“Additional Shares”
|
5.07(A)
|
|
“Business Combination Event”
|
6.01(A)
|
|
“Cash Settlement”
|
5.03(A)
|
|
“Combination Settlement”
|
5.03(A)
|
|
“Common Stock Change Event”
|
5.09(A)
|
|
“Conversion Agent”
|
2.06(A)
|
|
“Conversion Consideration”
|
5.03(B)
|
|
“Default Interest”
|
2.05(B)
|
|
“Defaulted Amount”
|
2.05(B)
|
|
“Deferred Additional Interest”
|
3.04(C)(i)
|
|
“Deferred Additional Interest Demand Request”
|
3.04(C)(i)
|
|
“Event of Default”
|
7.01(A)
|
|
“Expiration Date”
|
5.05(A)(v)
|
|
“Expiration Time”
|
5.05(A)(v)
|
|
“Fundamental Change Notice”
|
4.02(E)
|
|
“Fundamental Change Repurchase Right”
|
4.02(A)
|
|
“Initial Notes”
|
2.03(A)
|
|
“Measurement Period”
|
5.01(C)(i)(2)
|
|
“Notice of Election to Pay Deferred Additional Interest”
|
3.04(C)(i)
|
|
“Paying Agent”
|
2.06(A)
|
|
“Redemption Notice”
|
4.03(F)
|
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|
“Reference Property”
|
5.09(A)
|
|
“Reference Property Unit”
|
5.09(A)
|
|
“Register”
|
2.06(B)
|
|
“Registrar”
|
2.06(A)
|
|
“Reporting Event of Default”
|
7.03(A)
|
|
“Specified Courts”
|
11.07
|
|
“Spin-Off”
|
5.05(A)(iii)(2)
|
|
“Spin-Off Valuation Period”
|
5.05(A)(iii)(2)
|
|
“Successor Entity”
|
6.01(A)(i)
|
|
“Successor Person”
|
5.09(A)
|
|
“Tender/Exchange Offer Valuation Period”
|
5.05(A)(v)
|
|
“Trading Price Condition”
|
5.01(C)(i)(2)
|
Section 1.03. Rules of Construction.
For purposes of this Indenture:
(A) “or” is not exclusive;
(B) “including” means “including without
limitation”;
(C) “will” expresses a command;
(D) the “average” of a set of numerical
values refers to the arithmetic average of such numerical values;
(E) a merger involving, or a transfer of
assets by, a limited liability company, limited partnership or trust will be deemed to include any division of or by, or an allocation of assets to a series of, such limited liability company, limited partnership or trust, or any unwinding of any
such division or allocation;
(F) words in the singular include the
plural and in the plural include the singular, unless the context requires otherwise;
(G) “herein,” “hereof” and other words of
similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision of this Indenture, unless the context requires otherwise;
(H) references to currency mean the lawful
currency of the United States of America, unless the context requires otherwise;
(I) the exhibits, schedules and other
attachments to this Indenture are deemed to form part of this Indenture; and
(J) the term “interest,” when used with respect to a Note, means any Special Interest, Additional Interest or Default Interest, in each case, to the extent the same is payable on such Note, unless the context
requires otherwise.
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Article 2. THE NOTES
Section 2.01. Form, Dating and Denominations.
The Notes and the Trustee’s certificate of authentication will be substantially in the form set forth in Exhibit A. The Notes will bear the legends required by Section 2.09 and may bear notations, legends or endorsements required by law, stock exchange
rule or usage or the Depositary. Each Note will be dated as of the date of its authentication.
Except to the extent otherwise provided in a Company Order delivered to the Trustee in connection with the issuance and authentication thereof, the
Notes will be issued initially in the form of one or more Global Notes. Global Notes may be exchanged for Physical Notes, and Physical Notes may be exchanged for Global Notes, only as provided in Section 2.10.
The Notes will be issuable only in registered form without interest coupons and only in Authorized Denominations.
Each certificate representing a Note will bear a unique registration number that is not affixed to any other certificate representing another
outstanding Note.
The terms contained in the Notes constitute part of this Indenture, and, to the extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, agree to such terms and to be bound thereby; provided, however, that, to
the extent that any provision of any Note conflicts with the provisions of this Indenture, the provisions of this Indenture will control for purposes of this Indenture and such Note.
Section 2.02. Execution, Authentication and Delivery.
(A) Due Execution by the Company. At least one (1) duly authorized Officer will sign the Notes on behalf of the Company by manual, electronic or facsimile signature. A Note’s validity will not be affected by the
failure of any Officer whose signature is on any Note to hold, at the time such Note is authenticated, the same or any other office at the Company.
(B) Authentication by the Trustee and Delivery.
(i) No Note will be
valid until it is authenticated by the Trustee. A Note will be deemed to be duly authenticated only when an authorized signatory of the Trustee (or a duly appointed authenticating agent) manually signs the certificate of authentication of such
Note.
(ii) The Trustee will
cause an authorized signatory of the Trustee (or a duly appointed authenticating agent) to manually sign the certificate of authentication of a Note only if (1) the Company delivers such Note to the Trustee; (2) such Note is executed by the
Company in accordance with Section 2.02(A); and (3) the Company delivers a Company Order to the Trustee that (a) requests the Trustee to authenticate such Note; and (b) sets
forth the name of the Holder of such Note and the date as of which such Note is to be authenticated. If such Company Order also requests the Trustee to deliver such Note to any Holder or to the Depositary, then the Trustee will promptly deliver
such Note in accordance with such Company Order.
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(iii) The Trustee may
appoint an authenticating agent acceptable to the Company to authenticate Notes. A duly appointed authenticating agent may authenticate Notes whenever the Trustee may do so under this Indenture, and a Note authenticated as provided in this
Indenture by such an agent will be deemed, for purposes of this Indenture, to be authenticated by the Trustee. Each duly appointed authenticating agent will have the same rights to deal with the Company as the Trustee would have if it were
performing the duties that the authenticating agent was validly appointed to undertake.
Section 2.03. Initial Notes and Additional Notes.
(A) Initial Notes. On the Issue Date, there will be originally issued $2,750,000,000 aggregate principal amount of Notes, subject to the provisions of this Indenture (including Section 2.02). Notes issued pursuant to this Section 2.03(A), and any Notes issued in exchange therefor or in substitution thereof,
are referred to in this Indenture as the “Initial Notes.”
(B) Additional Notes. Without the consent of, or notice to, any Holder, the Company may, from time to time, subject to the provisions of this Indenture (including Section 2.02), issue additional Notes with the same terms as the Initial Notes (except for certain differences, such as, the date as of which Special Interest or Additional Interest, as applicable, begins to accrue on
such additional Notes, the first Interest Payment Date for such additional Notes, as applicable, the Last Original Issue Date of such additional Notes and, if applicable, transfer restrictions on such additional Notes), which additional Notes
will, subject to the foregoing, be considered to be part of the same series of, and rank equally and ratably with all other, Notes issued under this Indenture; provided, however, that if any such additional Notes (and any Notes that are resold after such Notes have been purchased or otherwise acquired by the Company or its Subsidiaries) are not
fungible with other Notes issued under this Indenture for purposes of federal income tax or federal securities laws or, if applicable, the Depositary Procedures, then such additional or resold Notes will be identified by one or more separate
CUSIP numbers or by no CUSIP number.
Section 2.04. Method of Payment.
(A) Global Notes. The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date, Redemption on a Redemption Date or repurchase on a Fundamental Change
Repurchase Date or otherwise) of, Special Interest, if any, or Additional Interest, if any, on, and any cash Conversion Consideration for, any Global Note to the Depositary by wire transfer of immediately available funds no later than the time
the same is due as provided in this Indenture.
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(B) Physical Notes. The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date, Redemption on a Redemption Date or repurchase on a Fundamental Change
Repurchase Date or otherwise) of, Special Interest or Additional Interest, if any, on, and any cash Conversion Consideration for, any Physical Note no later than the time the same is due as provided in this Indenture as follows: (i) if the
principal amount of such Physical Note is at least five million dollars ($5,000,000) (or such lower amount as the Company may choose in its sole and absolute discretion) and the Holder of such Physical Note entitled to such payment has delivered
to the Paying Agent or the Trustee, no later than the time set forth in the immediately following sentence, a written request that the Company make such payment by wire transfer to an account of such Holder within the United States specified in
such request, by wire transfer of immediately available funds to such account; and (ii) in all other cases, by check mailed to the address of the Holder of such Physical Note entitled to such payment as set forth in the Register. To be timely,
such written request must be so delivered no later than the Close of Business on the following date: (x) with respect to the payment of any Special Interest or Additional Interest, if any, due on an Interest Payment Date, the immediately
preceding Interest Record Date; (y) with respect to any cash Conversion Consideration, the relevant Conversion Date; and (z) with respect to any other payment, the date that is fifteen (15) calendar days immediately before the date such payment
is due.
Section 2.05. No Regular Interest; Accrual and Payment of Special Interest
and Additional Interest; Defaulted Amounts; When Payment Date is Not a Business Day.
(A) No Regular Interest; Accrual and Payment of Special Interest and Additional Interest. The Notes will not bear regular interest, and the principal amount of the Notes will not accrete; provided, however, that
Special Interest and Additional Interest will accrue on the Notes to the extent, and only to the extent, provided in Sections 3.04 and 7.03, respectively. The amount of any such Special Interest or Additional Interest, if any, that is payable on any applicable Interest
Payment Date will be the amount of unpaid Special Interest or Additional Interest, as applicable, that has accrued from, and including, the last date as of which such interest has been paid or duly provided for (or, if later, the date as of which
such Special Interest or Additional Interest has begun to accrue, as provided in Sections 3.04 and 7.03, as applicable) to, but excluding, such Interest Payment Date (or, if earlier, the date as of which such interest has ceased to accrue, as provided in Sections 3.04 and 7.03, as
applicable). If any Special Interest or Additional Interest has accrued on any Note, then such interest will be payable in arrears on the next Interest Payment Date to the Holder of such Note as of the Close of Business on the immediately
preceding Interest Record Date. Special Interest and Additional Interest, if any, on the Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months.
(B) Defaulted Amounts. If the Company fails to pay any amount (a “Defaulted Amount”) payable on a Note on or before the due date therefor as
provided in this Indenture, then, regardless of whether such failure constitutes an Event of Default, (i) such Defaulted Amount will forthwith cease to be payable to the Holder of such Note otherwise entitled to such payment; (ii) to the extent
lawful, interest (“Default Interest”) will accrue on such Defaulted Amount for each day, if any, during the period, from, and including, such due date to, but excluding, the
date of payment of such Defaulted Amount and Default Interest, which Default Interest will accrue on each such day at the combined rate at which Special Interest and Additional Interest accrues on such Note on such day (it being understood, for
the avoidance of doubt, that no Default Interest will accrue on such Note on any day on which no Special Interest or Additional Interest accrues on such Note); and (iii) such Defaulted Amount and Default Interest will be paid, at the Company’s
election, as provided in clause (i) or (ii) below.
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(i) Payment of Default Amounts on a Special Payment Date. The Company will have the right to pay such Defaulted Amount and Default Interest on a payment date selected by the Company
to the Holder of such Note as of the Close of Business on a special record date selected by the Company, provided that (1) such special record date is no more than fifteen
(15), nor less than ten (10), calendar days before such payment date; and (2) at least fifteen (15) calendar days before such special record date, the Company sends notice to the Trustee and the Holders that states such special record date, such
payment date and the amount of such Defaulted Amount and Default Interest to be paid on such payment date.
(ii) Payment of Default Amount in Any Other Lawful Manner. If not paid in accordance with Section 2.05(B)(i),
such Defaulted Amount and Default Interest will be paid by the Company in any other lawful manner not inconsistent with the requirements of any securities exchange or automated quotation system on which the Notes may be listed or designated for
issuance, and upon such notice as may be required by such exchange or automated quotation system, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Section 2.05(B)(ii), such manner of payment will be deemed practicable by the Trustee.
(C) Delay of Payment When Payment Date Is Not a Business Day. If the due date for a payment on a Note as provided in this Indenture is not a Business Day, then, notwithstanding anything to the contrary in this
Indenture or the Notes, such payment may be made on the immediately following Business Day with the same force and effect as if such payment were made on such due date (and, for the avoidance of doubt, no Special Interest or Additional Interest
will accrue on such payment as a result of the related delay). Solely for purposes of the immediately preceding sentence, a day on which the applicable place of payment is authorized or required by law or executive order to close or be closed
will be deemed not to be a “Business Day.”
(D) Special Provision for Global Notes. If the first date on which any Special Interest or Additional Interest, as applicable, begins to accrue on a Global Note is on or after the fifth (5th) Business Day before
an Interest Record Date and before the next Interest Payment Date, then, notwithstanding anything to the contrary in this Indenture or the Notes, the amount thereof accruing in respect of the period from, and including, such first date to, but
excluding, such Interest Payment Date will not be payable on such Interest Payment Date but will instead be deemed to accrue (without duplication) entirely on such Interest Payment Date (and, for the avoidance of doubt, no Special Interest and
Additional Interest will accrue as a result of the related delay).
Section 2.06. Registrar, Paying Agent and Conversion Agent.
(A) Generally. The Company will maintain (i) an office or agency in the continental United States where Notes may be presented for registration of transfer or for exchange (the “Registrar”); (ii) an office or agency in the continental United States where Notes may be presented for payment (the “Paying Agent”);
and (iii) an office or agency in the continental United States where Notes may be presented for Conversion (the “Conversion Agent”). If the Company fails to maintain a
Registrar, Paying Agent or Conversion Agent, then the Trustee will act as such and will receive compensation therefor in accordance with this Indenture and any other agreement between the Trustee and the Company. For the avoidance of doubt, the
Company or any of its Subsidiaries may act as Registrar, Paying Agent or Conversion Agent, without prior notice to Holders.
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(B) Duties of the Registrar. The Registrar will keep a record (the “Register”) of the names and addresses of the Holders, the Notes held by
each Holder and the transfer, exchange, repurchase, Redemption and Conversion of Notes. Absent manifest error, the entries in the Register will be conclusive and the Company and the Trustee may treat each Person whose name is recorded as a Holder
in the Register as a Holder for all purposes. The Register will be in written form or in any form capable of being converted into written form reasonably promptly.
(C) Co-Agents; Company’s Right to Appoint Successor Registrars, Paying Agents and Conversion Agents. The Company may appoint one or more co-Registrars, co-Paying Agents and co-Conversion Agents, each of whom will
be deemed to be a Registrar, Paying Agent or Conversion Agent, as applicable, under this Indenture. Subject to Section 2.06(A), the Company may change any Registrar, Paying
Agent or Conversion Agent (including appointing itself or any of its Subsidiaries to act in such capacity) without notice to any Holder. The Company will notify the Trustee (and, upon request, any Holder) of the name and address of each Note
Agent, if any, not a party to this Indenture and will enter into an appropriate agency agreement with each such Note Agent, which agreement will implement the provisions of this Indenture that relate to such Note Agent.
(D) Initial Appointments. The Company appoints the Trustee as, and designates its corporate trust office identified in Section 11.01 in the continental United States as the office for, the initial Paying Agent,
the initial Registrar and the initial Conversion Agent.
Section 2.07. Paying Agent and Conversion Agent to Hold Property in Trust.
The Company will require each Paying Agent or Conversion Agent that is not the Trustee to agree in writing that such Note Agent will (A) hold in trust
for the benefit of Holders or the Trustee all money and other property held by such Note Agent for payment or delivery due on the Notes; and (B) notify the Trustee of any default by the Company in making any such payment or delivery. The Company, at
any time, may, and the Trustee, while any Default continues, may, require a Paying Agent or Conversion Agent to pay or deliver, as applicable, all money and other property held by it to the Trustee, after which payment or delivery, as applicable,
such Note Agent (if not the Company or any of its Subsidiaries) will have no further liability for such money or property. If the Company or any of its Subsidiaries acts as Paying Agent or Conversion Agent, then (A) it will segregate and hold in a
separate trust fund for the benefit of the Holders or the Trustee all money and other property held by it as Paying Agent or Conversion Agent; and (B) references in this Indenture or the Notes to the Paying Agent or Conversion Agent holding cash or
other property, or to the delivery of cash or other property to the Paying Agent or Conversion Agent, in each case for payment or delivery to any Holders or the Trustee or with respect to the Notes, will be deemed to refer to cash or other property
so segregated and held separately, or to the segregation and separate holding of such cash or other property, respectively. Upon the occurrence of any event pursuant to clause (ix) or (x) of Section 7.01(A) with
respect to the Company (or with respect to any Subsidiary of the Company acting as Paying Agent or Conversion Agent), the Trustee will serve as the Paying Agent or Conversion Agent, as applicable, for the Notes.
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Section 2.08. Holder Lists.
If the Trustee is not the Registrar, then the Company will furnish to the Trustee, no later than seven (7) Business Days before each Interest Payment
Date in respect of which any Special Interest or Additional Interest is payable, and at such other times as the Trustee may request, a list, in such form and as of such date or time as the Trustee may reasonably require, of the names and addresses of
the Holders.
Section 2.09. Legends.
(A) Global Note Legend. Each Global Note will bear the Global Note Legend (or any similar legend, not inconsistent with this Indenture, required by the Depositary for such Global Note).
(B) Non-Affiliate Legend. Each Note will bear the Non-Affiliate Legend.
(C) Restricted Note Legend. Subject to Section 2.12,
(i) each Note that is
a Transfer-Restricted Security will bear the Restricted Note Legend; and
(ii) if a Note is issued
in exchange for, in substitution of, or to effect a partial Conversion of, another Note (such other Note being referred to as the “old Note” for purposes of this Section
2.09(C)(ii)), including pursuant to Section 2.10(B), 2.10(C), 2.11 or 2.13, then such Note will bear the Restricted
Note Legend if such old Note bore the Restricted Note Legend at the time of such exchange or substitution, or on the related Conversion Date with respect to such Conversion, as applicable; provided, however, that such Note need not bear the Restricted Note Legend if such Note does not constitute a Transfer-Restricted Security immediately
after such exchange or substitution, or as of such Conversion Date, as applicable.
(D) Other Legends. A Note may bear any other legend or text, not inconsistent with this Indenture, as may be required by applicable law or by any securities exchange or automated quotation system on which such
Note is traded or quoted.
(E) Acknowledgment and Agreement by the Holders. A Holder’s acceptance of any Note bearing any legend required by this Section 2.09 will
constitute such Holder’s acknowledgment of, and agreement to comply with, the restrictions set forth in such legend.
(F) Restricted Stock Legend.
(i) Each Conversion
Share will bear the Restricted Stock Legend if the Note upon the Conversion of which such Conversion Share was issued was (or would have been had it not been Converted) a Transfer-Restricted Security at the time such Conversion Share was issued;
provided, however, that such Conversion Share need not bear the Restricted Stock Legend if the
Company determines, in its reasonable discretion, that such Conversion Share need not bear the Restricted Stock Legend.
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(ii) Notwithstanding
anything to the contrary in this Section 2.09(F), a Conversion Share need not bear a Restricted Stock Legend if such Conversion Share is issued in an uncertificated form
that does not permit affixing legends thereto, provided the Company takes measures (including the assignment thereto of a “restricted” CUSIP number) that it reasonably
deems appropriate to enforce the transfer restrictions referred to in the Restricted Stock Legend.
Section 2.10. Transfers and Exchanges; Certain Transfer Restrictions.
(A) Provisions Applicable to All Transfers and Exchanges.
(i) Generally. Subject to this Section 2.10, Physical Notes and beneficial interests in Global Notes may be
transferred or exchanged from time to time. The Registrar will record each such transfer or exchange of Physical Notes in the Register.
(ii) Transferred and Exchanged Notes Remain Valid Obligations of the Company. Each Note issued upon transfer or exchange of any other Note (such other Note being referred to as the
“old Note” for purposes of this Section 2.10(A)(ii)) or portion thereof in accordance with this Indenture will be the valid obligation of the Company, evidencing the same
indebtedness, and entitled to the same benefits under this Indenture, as such old Note or portion thereof, as applicable.
(iii) No Services Charge; Transfer Taxes. The Company, the Trustee and the Note Agents will not impose any service charge on any Holder for any transfer, exchange or Conversion of
Notes, but the Company, the Trustee, the Registrar and the Conversion Agent may, subject to Section 5.02(E), require payment of a sum sufficient to cover any transfer tax or
similar governmental charge that may be imposed in connection with any transfer, exchange or Conversion of Notes, other than exchanges pursuant to Section 2.11, 2.17 or 8.05 not involving
any transfer.
(iv) Transfers and Exchanges Must Be in Authorized Denominations. Notwithstanding anything to the contrary in this Indenture or the Notes, a Note may not be transferred or exchanged
in part unless the portion to be so transferred or exchanged is in an Authorized Denomination.
(v) Trustee’s Disclaimer. The Trustee will have no obligation or duty to monitor, determine or inquire as to compliance with any transfer restrictions imposed under this Indenture
or applicable law with respect to any Security, other than to require the delivery of such certificates or other documentation or evidence as expressly required by this Indenture and to examine the same to determine substantial compliance as to
form with the requirements of this Indenture.
(vi) Legends. Each Note issued upon transfer of, or in exchange for, another Note will bear each legend, if any, required by Section 2.09.
(vii) Settlement of Transfers and Exchanges. Upon satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Note, the Company will cause such transfer
or exchange to be effected as soon as reasonably practicable but in no event later than the second (2nd) Business Day after the date of such satisfaction.
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(viii) Interpretation. For the avoidance of doubt, and subject to the terms of this Indenture, as used in this Section
2.10, an “exchange” of a Global Note or a Physical Note includes (x) an exchange effected for the sole purpose of removing any Restricted Note Legend affixed to such Global Note or Physical Note; and (y) if such Global Note or Physical
Note is identified by a “restricted” CUSIP number, an exchange effected for the sole purpose of causing such Global Note or Physical Note to be identified by an “unrestricted” CUSIP number.
(B) Transfers and
Exchanges of Global Notes.
(i) Certain Restrictions. Subject to the immediately following sentence, no Global Note may be transferred or exchanged in whole except (x) by the Depositary to a nominee of the
Depositary; (y) by a nominee of the Depositary to the Depositary or to another nominee of the Depositary; or (z) by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. No Global Note (or any
portion thereof) may be transferred to, or exchanged for, a Physical Note; provided, however, that
a Global Note will be exchanged, pursuant to customary procedures, for one or more Physical Notes if:
(1) (x) the Depositary
notifies the Company or the Trustee that the Depositary is unwilling or unable to continue as depositary for such Global Note or (y) the Depositary ceases to be a “clearing agency” registered under Section 17A of the Exchange Act and, in each
case, the Company fails to appoint a successor Depositary within ninety (90) days of such notice or cessation;
(2) an Event of Default
has occurred and is continuing and the Company, the Trustee or the Registrar has received a written request from the Depositary, or from a holder of a beneficial interest in such Global Note, to exchange such Global Note or beneficial interest,
as applicable, for one or more Physical Notes; or
(3) the Company, in
its sole discretion, permits the exchange of any beneficial interest in such Global Note for one or more Physical Notes at the request of the owner of such beneficial interest.
(ii) Effecting Transfers and Exchanges. Upon satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Global Note (or any portion thereof):
(1) the Trustee will
reflect any resulting decrease of the principal amount of such Global Note by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note (and, if such notation results in such Global Note having a
principal amount of zero, then the Company may (but is not required to) instruct the Trustee to cancel such Global Note pursuant to Section 2.15);
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(2) if required to
effect such transfer or exchange, then the Trustee will reflect any resulting increase of the principal amount of any other Global Note by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such other Global
Note;
(3) if required to
effect such transfer or exchange, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, a new
Global Note bearing each legend, if any, required by Section 2.09; and
(4) if such Global Note
(or such portion thereof), or any beneficial interest therein, is to be exchanged for one or more Physical Notes, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such Global Note to be
so exchanged; (y) are registered in such name(s) as the Depositary specifies (or as otherwise determined pursuant to customary procedures); and (z) bear each legend, if any, required by Section 2.09.
(iii) Compliance with Depositary Procedures. Each transfer or exchange of a beneficial interest in any Global Note will be made in accordance with the Depositary Procedures.
(C) Transfers and
Exchanges of Physical Notes.
(i) Requirements for Transfers and Exchanges. Subject to this Section 2.10, a Holder of a Physical Note may
(x) transfer such Physical Note (or any portion thereof in an Authorized Denomination) to one or more other Person(s); (y) exchange such Physical Note (or any portion thereof in an Authorized Denomination) for one or more other Physical Notes in
Authorized Denominations having an aggregate principal amount equal to the aggregate principal amount of the Physical Note (or portion thereof) to be so exchanged; and (z) if then permitted by the Depositary Procedures, transfer such Physical
Note (or any portion thereof in an Authorized Denomination) in exchange for a beneficial interest in one or more Global Notes; provided, however, that, to effect any such transfer or exchange, such Holder must:
(1) surrender such
Physical Note to be transferred or exchanged to the office of the Registrar, together with any endorsements or transfer instruments reasonably required by the Company, the Trustee or the Registrar; and
(2) deliver such
certificates, documentation or evidence as may be required pursuant to Section 2.10(D).
(ii) Effecting Transfers and Exchanges. Upon the satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Physical Note (such Physical Note being
referred to as the “old Physical Note” for purposes of this Section 2.10(C)(ii)) of a Holder (or any portion of such old Physical Note in an Authorized Denomination):
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(1) such old Physical
Note will be promptly cancelled pursuant to Section 2.15;
(2) if such old
Physical Note is to be so transferred or exchanged only in part, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such old Physical Note not to be so transferred or exchanged; (y) are
registered in the name of such Holder; and (z) bear each legend, if any, required by Section 2.09;
(3) in the case of a
transfer:
(a) to the Depositary
or a nominee thereof that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred in the form of one or more Global Notes, the Trustee will reflect an increase of the principal amount of one or more
existing Global Notes by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note(s), which increase(s) are in Authorized Denominations and aggregate to the principal amount to be so transferred,
and which Global Note(s) bear each legend, if any, required by Section 2.09; provided, however, that if such transfer cannot be so effected by notation on one or more existing Global Notes (whether because no Global Notes bearing each legend, if any, required by Section 2.09 then exist, because any such increase will result in any Global Note having an aggregate principal amount exceeding the maximum aggregate principal amount permitted
by the Depositary or otherwise), then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or
more Global Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount that is to be so transferred but that is not effected by notation as provided above; and (y) bear each legend, if any,
required by Section 2.09; and
(b) to a transferee
that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred in the form of one or more Physical Notes, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in
accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be
so transferred; (y) are registered in the name of such transferee; and (z) bear each legend, if any, required by Section 2.09; and
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(4) in the case of an
exchange, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x)
are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so exchanged; (y) are registered in the name of the Person to whom such old Physical Note was registered; and (z) bear each legend, if any,
required by Section 2.09.
(D) Requirement to Deliver Documentation and Other Evidence. If a Holder of any Note that is identified by a “restricted” CUSIP number or that bears a Restricted Note Legend or is a Transfer-Restricted Security
requests to:
(i) cause such Note to
be identified by an “unrestricted” CUSIP number;
(ii) remove such
Restricted Note Legend; or
(iii) register the
transfer of such Note to the name of another Person,
then the Company, the Trustee and the Registrar may refuse to effect such identification, removal or transfer, as applicable, unless there is delivered to the Company,
the Trustee and the Registrar such certificates or other documentation or evidence as the Company, the Trustee and the Registrar may reasonably require in order for the Company to determine that such identification, removal or transfer, as
applicable, complies with the Securities Act and other applicable securities laws; provided, however,
that no such certificates, documentation or evidence need be so delivered on or after the Free Trade Date with respect to such Note unless the Company determines, in its reasonable discretion, that such Note is not eligible to be offered, sold or
otherwise transferred pursuant to Rule 144 or otherwise without any requirements as to volume, manner of sale, availability of current public information or notice under the Securities Act.
(E) Transfers of Notes Subject to Redemption, Repurchase or Conversion. Notwithstanding anything to the contrary in this Indenture or the Notes, the Company, the Trustee and the Registrar will not be required to
register the transfer of or exchange any Note that (i) has been surrendered for Conversion, except to the extent that any portion of such Note is not subject to Conversion; (ii) is subject to a Fundamental Change Repurchase Notice validly
delivered, and not withdrawn, pursuant to Section 4.02(F), except to the extent that any portion of such Note is not subject to such notice or the Company fails to pay the
applicable Fundamental Change Repurchase Price, when due; or (iii) has been selected for Redemption pursuant to a Redemption Notice, except to the extent that any portion of such Note is not subject to Redemption or the Company fails to pay the
applicable Redemption Price when due.
Section 2.11. Exchange and Cancellation of Notes to Be Converted or to Be
Repurchased Pursuant to a Repurchase Upon Fundamental Change or Redemption.
(A) Partial Conversions of Physical Notes and Partial Repurchases of Physical Notes Pursuant to a Repurchase Upon Fundamental Change or Redemption.
If only a portion of a Physical Note of a Holder is to be Converted pursuant to Article 5 or repurchased pursuant to a Repurchase Upon Fundamental Change or Redemption,
then, as soon as reasonably practicable after such Physical Note is surrendered for such Conversion or repurchase, as applicable, the Company will cause such Physical Note to be exchanged, pursuant and subject to Section 2.10(C), for (i) one or more Physical Notes that are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such Physical Note that is not to be so
Converted or repurchased, as applicable, and deliver such Physical Note(s) to such Holder; and (ii) a Physical Note having a principal amount equal to the principal amount to be so Converted or repurchased, as applicable, which Physical Note will
be Converted or repurchased, as applicable, pursuant to the terms of this Indenture; provided, however,
that the Physical Note referred to in this clause (ii) need not be issued at any time after which such principal amount subject to such Conversion or repurchase, as
applicable, is deemed to cease to be outstanding pursuant to Section 2.18.
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(B) Cancellation of Notes that Are Converted and Notes that Are Repurchased Pursuant to a Repurchase Upon Fundamental Change or Redemption.
(i) Physical Notes. If a Physical Note (or any portion thereof that has not theretofore been exchanged pursuant to Section
2.11(A)) of a Holder is to be Converted pursuant to Article 5 or repurchased pursuant to a Repurchase Upon Fundamental Change or Redemption, then, promptly after
the later of the time such Physical Note (or such portion) is deemed to cease to be outstanding pursuant to Section 2.18 and the time such Physical Note is surrendered for
such Conversion or repurchase, as applicable, (1) such Physical Note will be cancelled pursuant to Section 2.15; and (2) in the case of a partial Conversion or repurchase,
as applicable, the Company will issue, execute and deliver to such Holder, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more
Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such Physical Note that is not to be so Converted or repurchased, as applicable; (y) are registered in the name of
such Holder; and (z) bear each legend, if any, required by Section 2.09.
(ii) Global Notes. If a Global Note (or any portion thereof) is to be Converted pursuant to Article 5 or
repurchased pursuant to a Repurchase Upon Fundamental Change or Redemption, then, promptly after the time such Note (or such portion) is deemed to cease to be outstanding pursuant to Section 2.18, the Trustee will reflect a decrease of the principal amount of such Global Note in an amount equal to the principal amount of such Global Note to be so Converted or repurchased, as applicable, by notation on the
“Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note (and, if the principal amount of such Global Note is zero following such notation, cancel such Global Note pursuant to Section 2.15).
Section 2.12. Removal of Transfer Restrictions.
Without limiting the generality of any other provision of this Indenture (including Section
3.04), the Restricted Note Legend affixed to any Note will be deemed, pursuant to this Section 2.12 and the footnote to such Restricted Note Legend, to be removed
therefrom upon the Company’s delivery to the Trustee of notice, signed on behalf of the Company by one (1) of its Officers, to such effect (and, for the avoidance of doubt, such notice need not be accompanied by an Officer’s Certificate or an Opinion
of Counsel in order to be effective to cause such Restricted Note Legend to be deemed to be removed from such Note). If such Note bears a “restricted” CUSIP or ISIN number at the time of such delivery, then, upon such delivery, such Note will be
deemed, pursuant to this Section 2.12 and the footnotes to the CUSIP and ISIN numbers set forth on the face of the certificate representing such Note, to thereafter bear the
“unrestricted” CUSIP and ISIN numbers identified in such footnotes; provided, however, that if such
Note is a Global Note and the Depositary thereof requires a mandatory exchange or other procedure to cause such Global Note to be identified by “unrestricted” CUSIP and ISIN numbers in the facilities of such Depositary, then (i) the Company will
effect such exchange or procedure as soon as reasonably practicable; and (ii) for purposes of Section 3.04 and the definition of Freely Tradable, such Global Note will not be
deemed to be identified by “unrestricted” CUSIP and ISIN numbers until such time as such exchange or procedure is effected.
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Section 2.13. Replacement Notes.
If a Holder of any Note claims that such Note has been mutilated, lost, destroyed or wrongfully taken, then the Company will issue, execute and
deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, a replacement Note upon surrender to the Trustee of such mutilated Note, or upon
delivery to the Trustee of evidence of such loss, destruction or wrongful taking reasonably satisfactory to the Trustee and the Company. The Company may charge the Holder of a Note for the Company’s and the Trustee’s expenses in replacing such Note
pursuant to this Section 2.13. In addition, in the case of a lost, destroyed or wrongfully taken Note, the Company and the Trustee may require the Holder thereof to provide such
security or indemnity that is satisfactory to the Company and the Trustee to protect the Company and the Trustee from any loss that any of them may suffer if such Note is replaced. The Company may charge for its and the Trustee’s expenses in
replacing a Note.
Every replacement Note issued pursuant to this Section 2.13 will be an
additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and ratably with all other Notes issued under this Indenture, regardless of whether the related lost, destroyed or wrongfully taken Note is at
any time enforceable by any Person.
Section 2.14. Registered Holders; Certain Rights with Respect to Global
Notes.
Only the Holder of a Note will have rights under this Indenture as the owner of such Note. Without limiting the generality of the foregoing,
Depositary Participants will have no rights as such under this Indenture with respect to any Global Note held on their behalf by the Depositary or its nominee, or by the Trustee as its custodian, and the Company, the Trustee and the Note Agents, and
their respective agents, may treat the Depositary as the absolute owner of such Global Note for all purposes whatsoever; provided, however, that (A) the Holder of any Global Note may grant proxies and otherwise authorize any Person, including Depositary Participants and Persons that hold interests in Notes through Depositary Participants, to take
any action that such Holder is entitled to take with respect to such Global Note under this Indenture or the Notes; and (B) the Company and the Trustee, and their respective agents, may give effect to any written certification, proxy or other
authorization furnished by the Depositary.
Section 2.15. Cancellation.
The Company may at any time deliver Notes to the Trustee for cancellation. The Registrar, the Paying Agent and the Conversion Agent will forward to
the Trustee each Note duly surrendered to them for transfer, exchange, payment or Conversion. The Trustee will promptly cancel all Notes so surrendered to it in accordance with its customary procedures. Without limiting the generality of Section 2.03(B), the Company may not originally issue new Notes to replace Notes that it has paid or that have been cancelled upon transfer, exchange, payment or Conversion.
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Section 2.16. Notes Held by the Company or its Affiliates.
Without limiting the generality of Section 2.18, in determining whether the Holders of the required aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company or any of its Affiliates will be
deemed not to be outstanding; provided, however, that, for purposes of determining whether the Trustee
is protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned will be so disregarded.
Section 2.17. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may issue, execute and deliver, and the Trustee will authenticate, in each case in
accordance with Section 2.02, temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. The Company will promptly prepare, issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02,
definitive Notes in exchange for temporary Notes. Until so exchanged, each temporary Note will in all respects be entitled to the same benefits under this Indenture as definitive Notes.
Section 2.18. Outstanding Notes.
(A) Generally. The Notes that are outstanding at any time will be deemed to be those Notes that, at such time, have been duly executed and authenticated, excluding those Notes (or portions thereof) that have
theretofore been (i) cancelled by the Trustee or delivered to the Trustee for cancellation in accordance with Section 2.15; (ii) assigned a principal amount of zero by
notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of any a Global Note representing such Note; (iii) paid in full (including upon Conversion) in accordance with this Indenture; or (iv) deemed to cease to be
outstanding to the extent provided in, and subject to, clause (B), (C) or (D) of this Section 2.18.
(B) Replaced Notes. If a Note is replaced pursuant to Section 2.13, then such Note will cease to be outstanding at the time of its
replacement, unless the Trustee and the Company receive proof reasonably satisfactory to them that such Note is held by a “bona fide purchaser” under applicable law.
(C) Maturing Notes and Notes Called for Redemption or Subject to Repurchase. If, on a Redemption Date, a Fundamental Change Repurchase Date or the Maturity Date, the Paying Agent holds money sufficient to pay the
aggregate Redemption Price, Fundamental Change Repurchase Price or principal amount, respectively, together, in each case, with the aggregate interest (if any), in each case due on such date, then (unless there occurs a Default in the payment of
any such amount) (i) the Notes (or portions thereof) to be redeemed or repurchased, or that mature, on such date will be deemed, as of such date, to cease to be outstanding, except to the extent provided in Section 4.02(D), 4.03(E) or 5.02(D); and (ii) the rights of the
Holders of such Notes (or such portions thereof), as such, will terminate with respect to such Notes (or such portions thereof), other than the right to receive the Redemption Price, Fundamental Change Repurchase Price or principal amount, as
applicable, of, and accrued and unpaid Special Interest and Additional Interest, if any, on, such Notes (or such portions thereof), in each case as provided in this Indenture.
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(D) Notes to Be Converted. At the Close of Business on the Conversion Date for any Note (or any portion thereof) to be Converted, such Note (or such portion) will (unless there occurs a Default in the delivery of
the Conversion Consideration or any interest due, pursuant to Section 5.03(B) or Section 5.02(D),
upon such Conversion) be deemed to cease to be outstanding, except to the extent provided in Section 5.02(D) or Section 5.08.
(E) Cessation of Accrual of Interest. Except as provided in Section 4.02(D), 4.03(E) or 5.02(D), no Special Interest or Additional Interest will accrue on any Note from, and including, the date that such Note is deemed, pursuant to
this Section 2.18, to cease to be outstanding, unless there occurs a default in the payment or delivery of any cash or other property due on such Note.
Section 2.19. Repurchases by the Company.
Without limiting the generality of Section 2.15, without the consent of any
Holder, the Company or its Subsidiaries may directly or indirectly, from time to time, repurchase Notes in open-market purchases or in negotiated transactions or otherwise, without delivering prior notice to Holders.
Section 2.20. CUSIP and ISIN Numbers.
Subject to Section 2.12, the Company may use one or more CUSIP or ISIN
numbers to identify any of the Notes, and, if so, the Company and the Trustee will use such CUSIP or ISIN number(s) in notices to Holders; provided, however, that (i) the Trustee makes no representation as to the correctness or accuracy of any such CUSIP or ISIN number; and (ii) the effectiveness of any such notice will not be affected by any
defect in, or omission of, any such CUSIP or ISIN number. The Company will promptly notify the Trustee of any change in the CUSIP or ISIN number(s) identifying any Notes.
Article 3. COVENANTS
Section 3.01. Payment on Notes.
(A) Generally. The Company will pay or cause to be paid all the principal of, the Fundamental Change Repurchase Price and Redemption Price for, Special Interest or Additional Interest, if any, on, and other
amounts due with respect to, the Notes on the dates and in the manner set forth in this Indenture.
(B) Deposit of Funds. Before 11:00 A.M., New York City time, on each Redemption Date, Fundamental Change Repurchase Date, and on each Interest Payment Date in respect of which any Special Interest or Additional
Interest is payable, and on the Maturity Date or any other date on which any cash amount is due on the Notes, the Company will deposit, or will cause there to be deposited, with the Paying Agent cash, in funds immediately available on such date,
sufficient to pay the cash amount due on the applicable Notes on such date. The Paying Agent will return to the Company, as soon as practicable, any money not required for such purpose.
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Section 3.02. Exchange Act Reports.
(A) Generally. The Company will send to the Trustee copies of all reports that the Company is required to file with the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act (other than Form 8-K reports)
within fifteen (15) calendar days after the date that the Company is required to file the same (after giving effect to all applicable grace periods under the Exchange Act); provided,
however, that the Company need not send to the Trustee any material for which the Company has received, or is seeking in good faith and has not been denied, confidential
treatment by the SEC. Any report that the Company files with the SEC through the EDGAR system (or any successor thereto) will be deemed to be sent to the Trustee at the time such report is so filed via the EDGAR system (or such successor). Upon
the request of any Holder, the Trustee will provide to such Holder a copy of any report that the Company has sent the Trustee pursuant to this Section 3.02(A), other than a
report that is deemed to be sent to the Trustee pursuant to the preceding sentence.
The “grace periods” referred to in the preceding paragraph with respect to any report will include the maximum period afforded by Rule 12b-25 (or any
successor rule thereto) under the Exchange Act regardless of whether the Company files, or indicates in the related Form 12b-25 (or any successor form thereto) that Company expects to or will file, such report before the expiration of such maximum
period.
(B) Trustee’s Disclaimer. The Trustee need not determine whether the Company has filed any material via the EDGAR system (or such successor). The sending or filing of reports pursuant to Section 3.02(A) will not be deemed to constitute actual or constructive notice to the Trustee of any information contained, or determinable from information contained, therein,
including the Company’s compliance with any of its covenants under this Indenture.
Section 3.03. Rule 144A Information.
If the Company is not subject to Section 13 or 15(d) of the Exchange Act at any time when any Notes or shares of Class A Common Stock issuable upon
Conversion of the Notes are outstanding and constitute “restricted securities” (as defined in Rule 144), then the Company (or its successor) will promptly provide, to the Trustee and, upon written request, to any Holder, beneficial owner or
prospective purchaser of such Notes or shares, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Notes or shares pursuant to Rule 144A.
Section 3.04. Additional Interest.
(A) Accrual of Additional Interest.
(i) If, at any time
during the six (6) month period beginning on, and including, the date that is six (6) months after the Last Original Issue Date of any Note,
(1) the Company fails
to timely file any report (other than Form 8-K reports) that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act (after giving effect to all applicable grace periods thereunder); or
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(2) such Note is not
otherwise Freely Tradable,
then Additional Interest will accrue on such Note for each day during such period on which such failure is continuing or such Note is not Freely
Tradable. The “grace periods” referred to in the preceding sentence with respect to any report will include the maximum period afforded by Rule 12b-25 (or any successor rule thereto) under the Exchange Act regardless of whether the Company files, or
indicates in the related Form 12b-25 (or any successor form thereto) that the Company expects to or will file, such report before the expiration of such maximum period.
(ii) In addition,
Additional Interest will accrue on a Note on each day on which such Note is not Freely Tradable on or after the De-Legending Deadline Date for such Note.
(B) Amount and Payment of Additional Interest. Subject to Section 3.04(C), any Additional Interest that accrues on a Note pursuant to Section 3.04(A) will accrue at a rate per annum equal to one quarter of one percent (0.25%) of the principal amount thereof for the first ninety (90) days on which Additional
Interest accrues and, thereafter, at a rate per annum equal to one half of one percent (0.50%) of the principal amount thereof; provided, however, that in no event will Additional Interest (excluding any interest that accrues on any Deferred Additional Interest pursuant to Section
3.04(C)) that may accrue as a result of our failure to timely file any report (other than Form 8-K reports) that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act (after giving effect to all
applicable grace periods thereunder), pursuant to Section 3.04(A)(i)(1), together with any Special Interest, accrue on any day on a Note at a combined rate per annum that
exceeds one half of one percent (0.50%). For the avoidance of doubt, any Additional Interest that accrues on a Note will be, subject to the preceding sentence, in addition to any Special Interest that accrues on such Note.
(C) Deferral of Additional Interest.
(i) Generally. Notwithstanding anything to the contrary in this Section 3.04, but subject to Section 3.04(C)(iii), Additional Interest that accrues on any Note for any period on or after the De-Legending Deadline Date of such Note will not be payable on any Interest
Payment Date occurring on or after such De-Legending Deadline Date unless (1) a Holder (or an owner of a beneficial interest in a Global Note) has delivered to the Company and the Trustee, no later than the fifth Business Day before the Interest
Record Date immediately before such Interest Payment Date, a written notice (a “Deferred Additional Interest Demand Request”) demanding payment of Additional Interest; or (2)
the Company, in its sole and absolute discretion, elects, by sending notice of such election (a “Notice of Election to Pay Deferred Additional Interest”) to Holders before
such Interest Record Date, to pay such Additional Interest on such Interest Payment Date (any accrued and unpaid Additional Interest that, in accordance with this sentence, is not paid on such Interest Payment Date, “Deferred Additional Interest”). Once any accrued and unpaid Additional Interest becomes payable on an Interest Payment Date (whether as a result of the delivery of a written notice pursuant to clause (1) above or, if earlier, the Company’s election to pay the same pursuant to clause (2) above),
Additional Interest will thereafter not be subject to deferral pursuant to this Section 3.04(C).
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(ii) Interpretive Provisions. Each reference in this Indenture or the Notes to any accrued interest (including in the definitions of the Redemption Price and the Fundamental Change
Repurchase Price for any Note) or to any accrued Additional Interest includes, to the extent applicable, and without duplication, any Deferred Additional Interest, together with accrued and unpaid interest thereon. For the avoidance of doubt, the
failure to pay any accrued and unpaid Additional Interest on an Interest Payment Date will not constitute a Default or an Event of Default under this Indenture or the Notes if such payment is deferred in accordance with Section 3.04(C)(i). Otherwise, such a failure to pay will be subject to Section 7.01(A)(ii).
(iii) Payment or Extinguishment Upon Maturity. Notwithstanding anything to the contrary in this Indenture or the Notes, if (1) any unpaid Deferred Additional Interest exists on any
Notes as of the Close of Business on the Interest Record Date immediately preceding the Maturity Date; (2) no Holder (or owner of a beneficial interest in a Global Note) has delivered a Deferred Additional Interest Demand Request in the manner
set forth in Section 3.04(C)(i) on or before the fifth Business Day before such Interest Record Date; and (3) the Company has not sent a Notice of Election to Pay Deferred
Additional Interest in the manner set forth in Section 3.04(C)(i) before such Interest Record Date, then Deferred Additional Interest on each Note then outstanding will
cease to accrue, and all Deferred Additional Interest, together with interest thereon, on such Note will be deemed to be extinguished on the following date: (a) if such Note is to be Converted, the Conversion Date for such Conversion (it being
understood, for the avoidance of doubt, that the Conversion Consideration therefor need not include, and the amount referred to in clause (i) of Section 5.02(D) need not include, the payment of any such Deferred Additional Interest or any interest thereon); and (b) in all other cases, the later of (x) the Maturity Date; and (y) the first
date on which the Company has repaid the principal of, and accrued and unpaid Special Interest and Additional Interest, if any (other than such Deferred Additional Interest and any interest thereon) on, such Note in full.
(D) Notice of Accrual of Additional Interest; Trustee’s Disclaimer. The Company will send notice to the Holder of each Note, and to the Trustee, of the commencement and termination of any period in which
Additional Interest accrues on such Note, except that no such notice is required in respect of any Additional Interest that is deferred in accordance with Section 3.04(C).
In addition, if Additional Interest accrues on any Note, then, no later than five (5) Business Days before each date on which such Additional Interest is to be paid, the Company will deliver an Officer’s Certificate to the Trustee and the Paying
Agent stating (i) that the Company is obligated to pay Additional Interest on such Note on such date of payment; and (ii) the amount of such Additional Interest that is payable on such date of payment. The Trustee will have no duty to determine
whether any Additional Interest is payable (or whether the same is deferred or is accruing interest) or the amount thereof and may assume (without inquiry) that no Additional Interest is payable or has been deferred unless and until the Company
delivers such Officer’s Certificate.
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(E) Exclusive Remedy. The accrual of Additional Interest will be the exclusive remedy available to Holders for the failure of their Notes to become Freely Tradable.
Section 3.05. Compliance and Default Certificates.
(A) Annual Compliance Certificate. Within one hundred twenty (120) days after the last day of each fiscal year of the Company, beginning with the first such fiscal year ending after the date of this Indenture,
the Company will deliver an Officer’s Certificate to the Trustee stating (i) that the signatory thereto has supervised a review of the activities of the Company and its Subsidiaries during such fiscal year with a view towards determining whether
any Default or Event of Default has occurred; and (ii) whether, to such signatory’s knowledge, a Default or Event of Default has occurred or is continuing (and, if so, describing all such Defaults or Events of Default and what action the Company
is taking or proposes to take with respect thereto).
(B) Default Certificate. If a Default or Event of Default occurs, then the Company will, within thirty (30) days after its first occurrence, deliver an Officer’s Certificate to the Trustee describing the same and
what action the Company is taking or proposes to take with respect thereto; provided, however,
that the Company will not be required to deliver such Officer’s Certificate at any time after such Default or Event of Default is cured or waived.
Section 3.06. Stay, Extension and Usury Laws.
To the extent that it may lawfully do so, the Company (A) agrees that it will 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 (wherever or whenever enacted or in force) that may affect the covenants or the performance of this Indenture; and (B) expressly waives all benefits or advantages of any such law and
agrees that it will not, by resort to any such law, hinder, delay or impede the execution of any power granted to the Trustee by this Indenture, but will suffer and permit the execution of every such power as though no such law has been enacted.
Section 3.07. Acquisition of Notes by the Company and its Affiliates.
Without limiting the generality of Section 2.18, Notes that the Company or
any of its Subsidiaries have purchased or otherwise acquired will be deemed to remain outstanding (except to the extent provided in Section 2.16) until such time as such Notes
are delivered to the Trustee for cancellation. The Company will use commercially reasonable efforts to prevent any of its controlled Affiliates from acquiring any Note (or any beneficial interest therein) except as permitted under this Indenture.
Article 4. REPURCHASE AND REDEMPTION
Section 4.01. No Sinking Fund.
No sinking fund is required to be provided for the Notes.
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Section 4.02. Right of Holders to Require the Company to Repurchase Notes
Upon a Fundamental Change.
(A) Right of Holders to Require the Company to Repurchase Notes Upon a Fundamental Change. Subject to the other terms of this Section 4.02,
if a Fundamental Change occurs, then each Holder will have the right (the “Fundamental Change Repurchase Right”) to require the Company to repurchase such Holder’s Notes (or
any portion thereof in an Authorized Denomination) on the Fundamental Change Repurchase Date for such Fundamental Change for a cash purchase price equal to the Fundamental Change Repurchase Price.
(B) Repurchase Prohibited in Certain Circumstances. If the principal amount of the Notes has been accelerated and such acceleration has not been rescinded on or before the Fundamental Change Repurchase Date for a
Repurchase Upon Fundamental Change (including as a result of the payment of the related Fundamental Change Repurchase Price, and any related interest pursuant to the proviso to the first sentence of Section 4.02(D), on such Fundamental Change Repurchase Date), then (i) the Company may not repurchase any Notes pursuant to this Section 4.02;
and (ii) the Company will cause any Notes theretofore surrendered for such Repurchase Upon Fundamental Change to be returned to the Holders thereof (or, if applicable with respect to Global Notes, cancel any instructions for book-entry transfer
to the Company, the Trustee or the Paying Agent of the applicable beneficial interest in such Notes in accordance with the Depositary Procedures).
(C) Fundamental Change Repurchase Date. The Fundamental Change Repurchase Date for any Fundamental Change will be a Business Day of the Company’s choosing that is no more than thirty-five (35), nor less than
twenty (20), Business Days after the date the Company sends the related Fundamental Change Notice pursuant to Section 4.02(E).
(D) Fundamental Change Repurchase Price. The Fundamental Change Repurchase Price for any Note to be repurchased upon a Repurchase Upon Fundamental Change following a Fundamental Change is an amount in cash equal
to the principal amount of such Note plus accrued and unpaid Special Interest and Additional Interest, if any, on such Note to, but excluding, the Fundamental Change Repurchase Date for such Fundamental Change; provided, however, that if any payment of Special Interest or Additional Interest is due in respect of any Interest Payment Date
and such Fundamental Change Repurchase Date is after the related Interest Record Date and on or before such Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Interest Record Date will be entitled,
notwithstanding such Repurchase Upon Fundamental Change, to receive, on or, at the Company’s election, before such Interest Payment Date, such payment of Special Interest or Additional Interest, as applicable (assuming, solely for these purposes,
that such Note remained outstanding through such Interest Payment Date, if such Fundamental Change Repurchase Date is before such Interest Payment Date); and (ii) the Fundamental Change Repurchase Price will not include accrued and unpaid Special
Interest or Additional Interest, if applicable, on such Note to, but excluding, such Fundamental Change Repurchase Date. For the avoidance of doubt, if such Interest Payment Date is not a Business Day within the meaning of Section 2.05(C) and such Fundamental Change Repurchase Date occurs on the Business Day immediately after such Interest Payment Date, then (x) accrued and unpaid Special Interest
or Additional Interest, as applicable, to, but excluding, such Interest Payment Date will be paid, in accordance with Section 2.05(C), on the next Business Day to Holders as
of the Close of Business on the immediately preceding Interest Record Date; and (y) the Fundamental Change Repurchase Price will include Special Interest and Additional Interest, if any, on the Notes to be repurchased from, and including, such
Interest Payment Date.
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(E) Fundamental Change Notice. On or before the twentieth (20th) calendar day after the effective date of a Fundamental Change, the Company will send to each Holder, the Trustee, the Conversion Agent and the
Paying Agent a notice of such Fundamental Change (a “Fundamental Change Notice”).
Such Fundamental Change Notice must state:
(i) briefly, the
events causing such Fundamental Change;
(ii) the effective date
of such Fundamental Change;
(iii) the procedures
that a Holder must follow to require the Company to repurchase its Notes pursuant to this Section 4.02, including the deadline for exercising the Fundamental Change
Repurchase Right and the procedures for submitting and withdrawing a Fundamental Change Repurchase Notice;
(iv) the Fundamental
Change Repurchase Date for such Fundamental Change;
(v) the Fundamental
Change Repurchase Price per $1,000 principal amount of Notes for such Fundamental Change (and, if any Special Interest or Additional Interest is payable in respect of an Interest Payment Date and such Fundamental Change Repurchase Date is after
the related Interest Record Date and on or before such Interest Payment Date, the amount, manner and timing of the interest payment payable pursuant to the proviso to Section
4.02(D));
(vi) the name and
address of the Paying Agent and the Conversion Agent;
(vii) the Conversion Rate
in effect on the date of such Fundamental Change Notice and a description and quantification of any adjustments to the Conversion Rate that may result from such Fundamental Change (including pursuant to Section 5.07);
(viii) that Notes for
which a Fundamental Change Repurchase Notice has been duly tendered and not duly withdrawn must be delivered to the Paying Agent for the Holder thereof to be entitled to receive the Fundamental Change Repurchase Price;
(ix) that Notes (or any
portion thereof) that are subject to a Fundamental Change Repurchase Notice that has been duly tendered may be Converted only if such Fundamental Change Repurchase Notice is withdrawn in accordance with this Indenture; and
(x) the CUSIP and ISIN
numbers, if any, of the Notes.
Neither the failure to deliver a Fundamental Change Notice nor any defect in a Fundamental Change Notice will limit the Fundamental Change Repurchase
Right of any Holder or otherwise affect the validity of any proceedings relating to any Repurchase Upon Fundamental Change.
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(F) Procedures to Exercise the Fundamental Change Repurchase Right.
(i) Delivery of Fundamental Change Repurchase Notice and Notes to Be Repurchased. To exercise its Fundamental Change Repurchase Right for a Note following a Fundamental Change, the
Holder thereof must deliver to the Paying Agent:
(1) before the Close of
Business on the Business Day immediately before the related Fundamental Change Repurchase Date (or such later time as may be required by law), a duly completed, written Fundamental Change Repurchase Notice with respect to such Note; and
(2) such Note, duly
endorsed for transfer (if such Note is a Physical Note) or by book-entry transfer (if such Note is a Global Note).
The Paying Agent will promptly deliver to the Company a copy of each Fundamental Change Repurchase Notice that it receives.
(ii) Contents of Fundamental Change Repurchase Notices. Each Fundamental Change Repurchase Notice with respect to a Note must state:
(1) if such Note is a
Physical Note, the certificate number of such Note;
(2) the principal
amount of such Note to be repurchased, which must be an Authorized Denomination; and
(3) that such Holder is
exercising its Fundamental Change Repurchase Right with respect to such principal amount of such Note;
provided, however, that if such Note is a Global Note, then such Fundamental Change Repurchase Notice must comply with the Depositary Procedures (and any such Fundamental Change Repurchase
Notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.02(F)).
(iii) Withdrawal of Fundamental Change Repurchase Notice. A Holder that has delivered a Fundamental Change Repurchase Notice with respect to a Note may withdraw such Fundamental
Change Repurchase Notice by delivering a written notice of withdrawal to the Paying Agent at any time before the Close of Business on the Business Day immediately before the related Fundamental Change Repurchase Date. Such withdrawal notice must
state:
(1) if such Note is a
Physical Note, the certificate number of such Note;
(2) the principal
amount of such Note to be withdrawn, which must be an Authorized Denomination; and
(3) the principal amount
of such Note, if any, that remains subject to such Fundamental Change Repurchase Notice, which must be an Authorized Denomination;
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provided, however, that if such Note is a Global Note, then such withdrawal notice must comply with the Depositary Procedures (and any such withdrawal notice delivered in compliance with
the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.02(F)).
Upon receipt of any such withdrawal notice with respect to a Note (or any portion thereof), the Paying Agent will (x) promptly deliver a copy of such
withdrawal notice to the Company; and (y) if such Note is surrendered to the Paying Agent, cause such Note (or such portion thereof in accordance with Section 2.11, treating
such Note as having been then surrendered for partial repurchase in the amount set forth in such withdrawal notice as remaining subject to repurchase) to be returned to the Holder thereof (or, if applicable with respect to any Global Note, cancel any
instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interest in such Note in accordance with the Depositary Procedures).
(G) Payment of the Fundamental Change Repurchase Price. Without limiting the Company’s obligation to deposit the Fundamental Change Repurchase Price within the time prescribed by Section 3.01(B), the Company will cause the Fundamental Change Repurchase Price for a Note (or portion thereof) to be repurchased pursuant to a Repurchase Upon Fundamental Change to be paid to the Holder
thereof on or before the later of (i) the applicable Fundamental Change Repurchase Date; and (ii) the date (x) such Note is delivered to the Paying Agent (in the case of a Physical Note) or (y) the Depositary Procedures relating to the
repurchase, and the delivery to the Paying Agent, of such Holder’s beneficial interest in such Note to be repurchased are complied with (in the case of a Global Note). For the avoidance of doubt, interest payable pursuant to the proviso to the
first sentence of Section 4.02(D) on any Note to be repurchased pursuant to a Repurchase Upon Fundamental Change must be paid pursuant to such proviso regardless of whether
such Note is delivered or such Depositary Procedures are complied with pursuant to the first sentence of this Section 4.02(G).
(H) Third Party May Conduct Repurchase Offer In Lieu of the Company. Notwithstanding anything to the contrary in this Section 4.02, the
Company will be deemed to satisfy its obligations under this Section 4.02 if (i) one or more third parties conduct any Repurchase Upon Fundamental Change and related offer
to repurchase Notes otherwise required by this Section 4.02 in a manner that would have satisfied the requirements of this Section 4.02 if conducted directly by the Company; and (ii) the Holder of any Note repurchased by such third party or parties will not receive a lesser amount (as a result of withholding or other similar taxes) than
such Holder would have received had the Company repurchased such Note.
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(I) No Requirement to Conduct an Offer to Repurchase Notes if the Fundamental Change Results in the Notes Becoming Convertible into an Amount of Cash Exceeding the Fundamental Change Repurchase Price.
Notwithstanding anything to the contrary in this Section 4.02, the Company will not be required to send a Fundamental Change Notice pursuant to Section 4.02(E), or offer to repurchase or repurchase any Notes pursuant to this Section 4.02, in connection with a Common
Stock Change Event that constitutes a Fundamental Change pursuant to clause (B)(ii) of the definition thereof (regardless of whether such Common Stock Change Event also
constitutes a Fundamental Change pursuant to any other clause of such definition), if (i) the Reference Property of such Common Stock Change Event consists entirely of cash in U.S. dollars; (ii) immediately after such Fundamental Change, the
Notes become Convertible, pursuant to Section 5.09(A) and, if applicable, Section 5.07, into
consideration that consists solely of U.S. dollars in an amount per $1,000 aggregate principal amount of Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 aggregate principal amount of Notes (which Fundamental Change
Repurchase Price will, if any Special Interest or Additional Interest is accruing on the Notes as of the effective date of such Fundamental Change, be calculated (x) assuming that such Fundamental Change Repurchase Price includes accrued and
unpaid Special Interest or Additional Interest, as applicable, to, but excluding, the latest possible Fundamental Change Repurchase Date for such Fundamental Change and (y) without regard to the proviso in Section 4.02(D)); and (iii) the Company timely sends the notice relating to such Fundamental Change required pursuant to Section
5.01(C)(i)(3)(b) and includes, in such notice, a statement that the Company is relying on this Section 4.02(I).
(J) Compliance with Applicable Securities Laws. To the extent applicable, the Company will comply, in all material respects, with all federal and state securities laws in connection with a Repurchase Upon
Fundamental Change (including complying with Rules 13e-4 and 14e-1 under the Exchange Act and filing any required Schedule TO, to the extent applicable) so as to permit effecting such Repurchase Upon Fundamental Change in the manner set forth in
this Indenture; provided, however, that, to the extent that the Company’s obligations pursuant to
this Section 4.02 conflict with any law or regulation that is applicable to the Company and enacted after the Issue Date, the Company’s compliance with such law or
regulation will not be considered to be a Default of such obligations.
(K) Repurchase in Part. Subject to the terms of this Section 4.02, Notes may be repurchased pursuant to a Repurchase Upon Fundamental
Change in part, but only in Authorized Denominations. Provisions of this Section 4.02 applying to the repurchase of a Note in whole will equally apply to the repurchase of a
permitted portion of a Note.
Section 4.03. Right of the Company to Redeem the Notes.
(A) No Right to Redeem Before May 20, 2028. The Company may not redeem the Notes at its option pursuant to this Section 4.03 at any time
before May 20, 2028.
(B) Right to Redeem the Notes on or After May 20, 2028. Subject to the terms of this Section 4.03 (including for the avoidance of doubt, Section 4.03(J)), the Company has the right, at its election, to redeem all, or any portion in an Authorized Denomination, of the Notes, at any time, and from time to time, on a
Redemption Date on or after May 20, 2028 and on or before the twentieth (20th) Scheduled Trading Day immediately before the Maturity Date, for a cash purchase price equal to the Redemption Price, but only if (i) the Notes are Freely Tradable as
of the Redemption Notice Date for such Redemption and all accrued and unpaid Additional Interest, if any, has been paid in full as of the first Interest Payment Date occurring on or before such Redemption Notice Date; and (ii) the Last Reported
Sale Price per share of Class A Common Stock exceeds one hundred and thirty percent (130%) of the Conversion Price on (x) each of at least twenty (20) Trading Days (whether or not consecutive) during the thirty (30) consecutive Trading Days
ending on, and including, the Trading Day immediately before such Redemption Notice Date; and (y) the Trading Day immediately before such Redemption Notice Date. For the avoidance of doubt, the calling of any Notes for Redemption will constitute
a Make-Whole Fundamental Change with respect to such Notes pursuant to clause (B) of the definition thereof.
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(C) Redemption Prohibited in Certain Circumstances. If the principal amount of the Notes has been accelerated and such acceleration has not been rescinded on or before the Redemption Date (including as a result
of the payment of the related Redemption Price, and any related interest pursuant to the proviso to the first sentence of Section 4.03(E), on such Redemption Date), then (i)
the Company may not call for Redemption or otherwise redeem any Notes pursuant to this Section 4.03; and (ii) the Company will cause any Notes theretofore surrendered for
such Redemption to be returned to the Holders thereof (or, if applicable with respect to Global Notes, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interests in such
Notes in accordance with the Depositary Procedures).
(D) Redemption Date. The Redemption Date for any Redemption will be a Business Day of the Company’s choosing that is no more than forty-five (45), nor less than twenty-five (25), Scheduled Trading Days after the
Redemption Notice Date for such Redemption.
(E) Redemption Price. The Redemption Price for any Note called for Redemption is an amount in cash equal to the principal amount of such Note plus accrued and unpaid Special Interest and Additional Interest, if
any, on such Note to, but excluding, the Redemption Date for such Redemption; provided, however,
that if any payment of Special Interest or Additional Interest is due in respect of any Interest Payment Date and such Redemption Date is after the related Interest Record Date and on or before such Interest Payment Date, then (i) the Holder of
such Note at the Close of Business on such Interest Record Date will be entitled, notwithstanding such Redemption, to receive, on or, at the Company’s election, before such Interest Payment Date, such payment of Special Interest or Additional
Interest, as applicable (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date, if such Redemption Date is before such Interest Payment Date); and (ii) the Redemption Price will not include
accrued and unpaid Special Interest or Additional Interest, if any, on such Note to, but excluding, such Redemption Date. For the avoidance of doubt, if such Interest Payment Date is not a Business Day within the meaning of Section 2.05(C) and such Redemption Date occurs on the Business Day immediately after such Interest Payment Date, then (x) accrued and unpaid Special Interest or Additional
Interest, as applicable, to, but excluding, such Interest Payment Date will be paid, in accordance with Section 2.05(C), on the next Business Day to Holders as of the Close
of Business on the immediately preceding Interest Record Date; and (y) the Redemption Price will include Special Interest and Additional Interest, if any, on Notes to be redeemed from, and including, such Interest Payment Date.
(F) Redemption Notice. To call any Notes for Redemption, the Company must send to each Holder of such Notes, the Trustee and Paying Agent a written notice of such Redemption (a “Redemption Notice”).
Such Redemption Notice must state:
(i) that such Notes
have been called for Redemption, briefly describing the Company’s Redemption right under this Indenture;
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(ii) the Redemption
Date for such Redemption;
(iii) the Redemption
Price per $1,000 principal amount of Notes for such Redemption (and, if any Special Interest or Additional Interest is payable in respect of an Interest Payment Date and the Redemption Date is after the related Interest Record Date and on or
before such Interest Payment Date, the amount, manner and timing of the interest payment payable pursuant to the proviso to Section 4.03(E));
(iv) the name and
address of the Paying Agent and the Conversion Agent;
(v) that Notes called
for Redemption may be Converted at any time before the Close of Business on the second (2nd) Business Day immediately before the Redemption Date (or, if the Company fails to pay the Redemption Price due on such Redemption Date in full, at any
time until such time as the Company pays such Redemption Price in full);
(vi) the Conversion Rate
in effect on the Redemption Notice Date for such Redemption and a description and quantification of any adjustments to the Conversion Rate that may result from such Redemption (including pursuant to Section 5.07);
(vii) the Settlement
Method that will apply to all Conversions of Notes with a Conversion Date that occurs on or after such Redemption Notice Date and on or before the second (2nd) Business Day before such Redemption Date; and
(viii) the CUSIP and ISIN
numbers, if any, of the Notes.
On or before the Redemption Notice Date, the Company will send a copy of such Redemption Notice to the Trustee, the Conversion Agent and the Paying
Agent.
(G) Selection and Conversion of Notes to Be Redeemed in Part.
(i) If less than all
Notes then outstanding are called for Redemption, then the Notes to be redeemed will be selected by the Company as follows: (1) in the case of Global Notes, in accordance with the Depositary Procedures; and (2) in the case of Physical Notes, pro
rata, by lot or by such other method the Company considers fair and appropriate.
(ii) If only a portion
of a Note is subject to Redemption and such Note is Converted in part, then the Converted portion of such Note will be deemed to be from the portion of such Note that was subject to Redemption.
(H) Payment of the Redemption Price. Without limiting the Company’s obligation to deposit the Redemption Price by the time prescribed by Section
3.01(B), the Company will cause the Redemption Price for a Note (or portion thereof) subject to Redemption to be paid to the Holder thereof on or before the applicable Redemption Date. For the avoidance of doubt, interest payable
pursuant to the proviso to the first sentence of Section 4.03(E) on any Note (or portion thereof) subject to Redemption must be paid pursuant to such proviso.
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(I) Special Provisions for Partial Calls. If the Company elects to redeem less than all of the outstanding Notes pursuant to this Section 4.03,
and the Holder of any Note, or any owner of a beneficial interest in any Global Note, is reasonably not able to determine, before the Close of Business on the twenty-second (22nd) Scheduled Trading Day immediately before the Redemption Date for
such Redemption, whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such Redemption, then such Holder or owner, as applicable, will be entitled to Convert such Note or beneficial interest, as applicable, at any
time before the Close of Business on the second (2nd) Business Day immediately before such Redemption Date, and each such Conversion will be deemed to be of a Note called for Redemption for purposes of this Section 4.03 and Sections 5.01(C)(i)(4) and 5.07. For the avoidance of doubt, each reference in this Indenture or the Notes to (x) any Note that is called for Redemption (or similar language) includes any Note that is
deemed to be called for Redemption pursuant to this Section 4.03(I); and (y) any Note that is not called for Redemption (or similar language) excludes any Note that is
deemed to be called for Redemption pursuant to this Section 4.03(I).
(J) Partial Redemption Limitation. If the Company elects to redeem less than all of the outstanding Notes pursuant to this Section 4.03,
then, notwithstanding anything to the contrary in this Indenture or the Notes, the excess of the principal amount of Notes outstanding as of the time the Company sends the related Redemption Notice over the aggregate principal amount of Notes set
forth in such Redemption Notice as being subject to Redemption must be at least one hundred and fifty million dollars ($150,000,000).
(K) Repurchases or Other Acquisitions Other Than by Redemption Not Affected. For the avoidance of doubt, nothing in this Section 4.03 will
limit or otherwise apply to any repurchase or other acquisition, by the Company or its Affiliates, or any other Person, of any Notes not by Redemption (including in open market transactions, private or public tender or exchange offers or
otherwise).
Article 5. THE CONVERSION OF NOTES
Section 5.01. Right to Convert.
(A) Generally. Subject to the provisions of this Article 5, each Holder may, at its option, Convert such Holder’s Notes into Conversion
Consideration.
(B) Conversions in Part. Subject to the terms of this Indenture, Notes may be Converted in part, but only in Authorized Denominations. Provisions of this Article 5 applying to the Conversion of a Note in whole will equally apply to Conversions of a permitted portion of a Note.
(C) When Notes May Be Converted.
(i) Generally. Subject to Section 5.01(C)(ii), a Note may be Converted only in the following circumstances:
(1) Conversion Upon Satisfaction of Common Stock Sale Price Condition. Before the Close of Business on the Business Day immediately before November 15, 2029, a Holder may Convert
its Notes during any calendar quarter (and only during such calendar quarter) commencing after the calendar quarter ending on September 30, 2025, if the Last Reported Sale Price per share of Class A Common Stock exceeds one hundred and thirty
percent (130%) of the Conversion Price for each of at least twenty (20) Trading Days (whether or not consecutive) during the thirty (30) consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar
quarter.
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(2) Conversion Upon Satisfaction of Note Trading Price Condition. Before the Close of Business on the Business Day immediately before November 15, 2029, a Holder may Convert its
Notes during the five (5) consecutive Business Days immediately after any ten (10) consecutive Trading Day period (such ten (10) consecutive Trading Day period, the “Measurement
Period”) if the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder in accordance with the procedures set forth below, for each Trading Day of the Measurement Period was less than ninety
eight percent (98%) of the product of the Last Reported Sale Price per share of Class A Common Stock on such Trading Day and the Conversion Rate on such Trading Day. The condition set forth in the preceding sentence is referred to in this
Indenture as the “Trading Price Condition.”
The Trading Price will be determined by the Bid Solicitation Agent pursuant to this Section
5.01(C)(i)(2) and the definition of “Trading Price.” The Bid Solicitation Agent (if not the Company) will have no obligation to determine the Trading Price of the Notes unless the Company has requested such determination in writing, and the
Company will have no obligation to make such request (or seek bids itself) unless a Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes would be less than ninety eight percent (98%) of the
product of the Last Reported Sale Price per share of Class A Common Stock and the Conversion Rate. If a Holder provides such evidence, then the Company will (if acting as Bid Solicitation Agent), or will instruct the Bid Solicitation Agent to,
determine the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to ninety eight percent (98%) of the product of the
Last Reported Sale Price per share of Class A Common Stock on such Trading Day and the Conversion Rate on such Trading Day. If the Trading Price Condition has been met as set forth above, then the Company will notify the Holders, the Trustee and the
Conversion Agent of the same. If, on any Trading Day after the Trading Price Condition has been met as set forth above, the Trading Price per $1,000 principal amount of Notes is greater than or equal to ninety eight percent (98%) of the product of
the Last Reported Sale Price per share of Class A Common Stock on such Trading Day and the Conversion Rate on such Trading Day, then the Company will notify the Holders, the Trustee and the Conversion Agent of the same.
(3) Conversion Upon Specified Corporate Events.
(a) Certain Distributions. If, before the Close of Business on the Business Day immediately before November 15, 2029, the Company elects to:
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(I) distribute, to all
or substantially all holders of Class A Common Stock, any rights, options or warrants (other than rights issued pursuant to a stockholder rights plan, so long as such rights have not separated from the Class A Common Stock and are not exercisable
until the occurrence of a triggering event, except that such rights will be deemed to be distributed under this clause (I) upon their separation from the Class A Common
Stock or upon the occurrence of such triggering event) entitling them, for a period of not more than sixty (60) calendar days after the record date of such distribution, to subscribe for or purchase shares of Class A Common Stock at a price per
share that is less than the average of the Last Reported Sale Prices per share of Class A Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced
(determined in the manner set forth in the third paragraph of Section 5.05(A)(ii)); or
(II) distribute, to all
or substantially all holders of Class A Common Stock, assets or securities of the Company or rights to purchase the Company’s securities, which distribution per share of Class A Common Stock has a value, as reasonably determined by the Board of
Directors, exceeding ten percent (10%) of the Last Reported Sale Price per share of Class A Common Stock on the Trading Day immediately before the date such distribution is announced,
then, in either case, (x) the Company will send notice of such distribution, and of the related right to Convert Notes, to Holders, the Trustee and
the Conversion Agent at least twenty-five (25) Scheduled Trading Days before the Ex-Dividend Date for such distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan or the occurrence of any
such triggering event under a stockholder rights plan, as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur); and (y) once the Company has sent such notice, Holders may
Convert their Notes at any time until the earlier of the Close of Business on the Business Day immediately before such Ex-Dividend Date and the Company’s announcement that such distribution will not take place; provided, however, that the Notes will not become Convertible pursuant to clause (y) above (but the Company will be required to send notice of such distribution pursuant to clause (x) above) on account of such distribution if each
Holder participates, at the same time and on the same terms as holders of Class A Common Stock, and solely by virtue of being a Holder, in such distribution without having to Convert such Holder’s Notes and as if such Holder held a number of shares
of Class A Common Stock equal to the product of (i) the Conversion Rate in effect on the record date for such distribution; and (ii) the aggregate principal amount (expressed in thousands) of Notes held by such Holder on such record date.
- 44 -
(b) Certain Corporate Events. If, before the Close of Business on the Business Day immediately before November 15, 2029, a Fundamental Change, Make-Whole Fundamental Change (other
than a Make-Whole Fundamental Change pursuant to clause (B) of the definition thereof) or Common Stock Change Event occurs (other than a merger or other business combination
transaction that is effected solely to change the Company’s jurisdiction of incorporation and that does not constitute a Fundamental Change or a Make-Whole Fundamental Change), then, in each case, Holders may Convert their Notes at any time from,
and including, the effective date of such transaction or event to, and including, the thirty-fifth (35th) Trading Day after such effective date (or, if such transaction or event also constitutes a Fundamental Change (other than an Exempted
Fundamental Change), to, but excluding, the related Fundamental Change Repurchase Date); provided, however,
that if the Company does not provide the notice referred to in the immediately following sentence by the Business Day after such effective date, then the last day on which the Notes are Convertible pursuant to this sentence will be extended by
the number of Business Days from, and including, the Business Day after such effective date to, but excluding, the date the Company provides such notice. No later than the Business Day after such effective date, the Company will send notice to
the Holders, the Trustee and the Conversion Agent of such transaction or event, such effective date and the related right to Convert Notes.
(4) Conversion Upon Redemption. If the Company calls any Note for Redemption, then the Holder of such Note may Convert such Note at any time before the Close of Business on the
second (2nd) Business Day immediately before the related Redemption Date (or, if the Company fails to pay the Redemption Price due on such Redemption Date in full, at any time until such time as the Company pays such Redemption Price in full).
(5) Conversions During Free Convertibility Period. A Holder may Convert its Notes at any time from, and including, November 15, 2029 until the Close of Business on the second (2nd)
Scheduled Trading Day immediately before the Maturity Date.
For the avoidance of doubt, the Notes may become Convertible pursuant to any one or more of the preceding sub-paragraphs of this Section 5.01(C)(i) and the Notes ceasing to be Convertible pursuant to a particular sub-paragraph of this Section
5.01(C)(i) will not preclude the Notes from being Convertible pursuant to any other sub-paragraph of this Section 5.01(C)(i).
- 45 -
(ii) Limitations and Closed Periods. Notwithstanding anything to the contrary in this Indenture or the Notes:
(1) Notes may be
surrendered for Conversion only after the Open of Business and before the Close of Business on a day that is a Business Day;
(2) in no event may any
Note be Converted after the Close of Business on the second (2nd) Scheduled Trading Day immediately before the Maturity Date;
(3) if the Company calls
any Note for Redemption pursuant to Section 4.03, then the Holder of such Note may not Convert such Note after the Close of Business on the second (2nd) Business Day
immediately before the applicable Redemption Date, except to the extent the Company fails to pay the Redemption Price for such Note in accordance with this Indenture; and
(4) if a Fundamental
Change Repurchase Notice is validly delivered pursuant to Section 4.02(F) with respect to any Note, then such Note may not be Converted, except to the extent (a) such Note
is not subject to such notice; (b) such notice is withdrawn in accordance with Section 4.02(F); or (c) the Company fails to pay the Fundamental Change Repurchase Price for
such Note when required (or a third party fails to make such payment in lieu of the Company) in accordance with this Indenture.
Section 5.02. Conversion Procedures.
(A) Generally.
(i) Global Notes. To Convert a beneficial interest in a Global Note that is Convertible pursuant to Section 5.01(C),
the owner of such beneficial interest must (1) comply with the Depositary Procedures for Converting such beneficial interest (at which time such Conversion will become irrevocable); and (2) pay any amounts due pursuant to Section 5.02(D) or Section 5.02(E).
(ii) Physical Notes. To Convert all or a portion of a Physical Note that is Convertible pursuant to Section 5.01(C),
the Holder of such Note must (1) complete, manually sign and deliver to the Conversion Agent the Conversion Notice attached to such Physical Note or a facsimile of such Conversion Notice; (2) deliver such Physical Note to the Conversion Agent (at
which time such Conversion will become irrevocable); (3) furnish any endorsements and transfer documents that the Company or the Conversion Agent may require; and (4) pay any amounts due pursuant to Section 5.02(D) or Section 5.02(E).
(B) Effect of Converting a Note. At the Close of Business on the Conversion Date for a Note (or any portion thereof) to be Converted, such Note (or such portion) will (unless there occurs a Default in the
delivery of the Conversion Consideration or interest, if any, due, pursuant to Section 5.03(B) or 5.02(D), upon such Conversion) be deemed to cease to be outstanding (and, for the avoidance of doubt, no Person will be deemed to be a Holder of such Note (or such portion
thereof) as of the Close of Business on such Conversion Date), except to the extent provided in Section 5.02(D).
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(C) Holder of Record of Conversion Shares. The Person in whose name any share of Class A Common Stock is issuable upon Conversion of any Note will be deemed to become the holder of record of that share as of the
Close of Business on the last VWAP Trading Day of the Observation Period for such Conversion.
(D) Interest Payable Upon Conversion in Certain Circumstances. If any payment of Special Interest or Additional Interest is due in respect of any Interest Payment Date and the Conversion Date of a Note is after
the related Interest Record Date and before such Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Interest Record Date will be entitled, notwithstanding such Conversion (and, for the avoidance of doubt,
notwithstanding anything set forth in the proviso to this sentence), to receive, on or, at the Company’s election, before such Interest Payment Date, such payment of Special Interest or Additional Interest, as applicable (assuming, solely for
these purposes, that such Note remained outstanding through such Interest Payment Date); and (ii) the Holder surrendering such Note for Conversion must deliver to the Conversion Agent, at the time it surrenders such Notes, an amount of cash equal
to the amount of such payment of such Special Interest or Additional Interest, as applicable; provided, however,
that such Holder need not deliver such cash (v) if the Company has specified a Redemption Date that is after such Interest Record Date and on or before the second (2nd) Business Day immediately after such Interest Payment Date; (w) if such
Conversion Date occurs after the Interest Record Date immediately before the Maturity Date; (x) if the Company has specified a Fundamental Change Repurchase Date that is after such Interest Record Date and on or before the Business Day
immediately after such Interest Payment Date; or (y) to the extent of any (x) overdue Special Interest or Additional Interest or (y) interest that has accrued on any overdue Special Interest or Additional Interest. For the avoidance of doubt, as
a result of, and without limiting the generality of, the foregoing, if a Note is Converted with a Conversion Date that is after the Interest Record Date immediately before the Maturity Date, then the Company will pay, as provided above, Special
Interest and Additional Interest, if any, that would have been due on the Maturity Date (or, if the Maturity Date is not a Business Day, the next Business Day) had such Note not been Converted. For the avoidance of doubt, if the Conversion Date
of a Note to be Converted is on an Interest Payment Date in respect of which any Special Interest or Additional Interest, as applicable, is payable, then the Holder of such Note at the Close of Business on the Interest Record Date immediately
before such Interest Payment Date will be entitled to receive, on such Interest Payment Date, such Special Interest or Additional Interest, as applicable, and such Note, when surrendered for Conversion, need not be accompanied by any cash amount
pursuant to the first sentence of this Section 5.02(D).
(E) Taxes and Duties. If a Holder Converts a Note, the Company will pay any documentary, stamp or similar issue or transfer tax or duty due on the issue or delivery of any shares of Class A Common Stock upon such
Conversion, except any tax or duty that is due because such Holder requested such shares to be registered in a name other than such Holder’s name.
(F) Conversion Agent to Notify Company of Conversions. If any Note is submitted for Conversion to the Conversion Agent or the Conversion Agent receives any notice of Conversion with respect to a Note, then the
Conversion Agent will promptly notify the Company and the Trustee of such occurrence, together with any other information reasonably requested by the Company, and will cooperate with the Company to determine the Conversion Date for such Note.
- 47 -
Section 5.03. Settlement Upon Conversion.
(A) Settlement Method. Upon the Conversion of any Note, the Company will settle such Conversion by paying or delivering, as applicable and as provided in this Article 5, either (x) solely cash as provided in Section 5.03(B)(i)(1) (a “Cash
Settlement”); or (y) a combination of cash and shares of Class A Common Stock, together, if applicable, with cash in lieu of fractional shares as provided in Section
5.03(B)(i)(2) (a “Combination Settlement”).
(i) The Company’s Right to Elect Settlement Method. The Company will have the right to elect the Settlement Method applicable to any Conversion of a Note; provided, however, that:
(1) subject to clause (3) below, all Conversions of Notes with a Conversion Date that occurs on or after November 15, 2029 will be settled using the same Settlement Method, and the Company will
send notice of such Settlement Method to Holders no later than the Open of Business on November 15, 2029;
(2) subject to clause (3) below, if the Company elects a Settlement Method with respect to the Conversion of any Note whose Conversion Date occurs before November 15, 2029, then the Company
will send notice of such Settlement Method to the Holder of such Note no later than the Close of Business on the Business Day immediately after such Conversion Date;
(3) if any Notes are
called for Redemption, then (a) the Company will specify, in the related Redemption Notice (and, in the case of a Redemption of less than all outstanding Notes, in a notice simultaneously sent to all Holders of Notes not called for Redemption)
sent pursuant to Section 4.03(F), the Settlement Method that will apply to all Conversions of Notes with a Conversion Date that occurs on or after the related Redemption
Notice Date and on or before the second (2nd) Business Day before the related Redemption Date; and (b) if such Redemption Date occurs on or after November 15, 2029, then such Settlement Method must be the same Settlement Method that, pursuant to
clause (1) above, applies to all Conversions of Notes with a Conversion Date that occurs on or after November 15, 2029;
(4) the Company will
use the same Settlement Method for all Conversions of Notes with the same Conversion Date (and, for the avoidance of doubt, the Company will not be obligated to use the same Settlement Method with respect to Conversions of Notes with different
Conversion Dates, except as provided in clause (1) or (3) above);
(5) if the Company does
not timely elect a Settlement Method with respect to the Conversion of a Note, then the Company will be deemed to have elected the Default Settlement Method (and, for the avoidance of doubt, the failure to timely make such election will not
constitute a Default or Event of Default); and
- 48 -
(6) if the Company
timely elects Combination Settlement with respect to the Conversion of a Note but does not timely notify the Holder of such Note of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such Conversion will be deemed to be
$1,000 per $1,000 principal amount of Notes (and, for the avoidance of doubt, the failure to timely send such notification will not constitute a Default or Event of Default).
At or before the time the Company sends any notice referred to in the preceding sentence, the Company will send a copy of such notice to the Trustee
and the Conversion Agent, but the failure to timely send such copy will not affect the validity of any Settlement Method election.
(ii) The Company’s Right to Irrevocably Fix or Eliminate Settlement Methods. The Company will have the right, exercisable at its election by sending notice of such exercise to the
Holders (with a copy to the Trustee and the Conversion Agent), to (1) irrevocably fix the Settlement Method that will apply to all Conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Holders; or (2)
irrevocably eliminate any one or more (but not all) Settlement Methods (including eliminating Combination Settlement with a particular Specified Dollar Amount or range of Specified Dollar Amounts) with respect to all Conversions of Notes with a
Conversion Date that occurs on or after the date such notice is sent to Holders, provided, in each case, that (v) in no event will the Company elect (whether directly or by
eliminating all other Settlement Methods) Combination Settlement with a Specified Dollar Amount that is less than $1,000 per $1,000 principal amount of Notes; (w) the Settlement Method so elected pursuant to clause (1) above, or the Settlement Method(s) remaining after any elimination pursuant to clause (2) above, as applicable, must be a
Settlement Method or Settlement Method(s), as applicable, that the Company is then permitted to elect (for the avoidance of doubt, including pursuant to, and subject to, the other provisions of this Section 5.03(A)); (x) no such irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Indenture (including pursuant to Section 8.01(G) or this Section 5.03(A)); (y) upon any such irrevocable election pursuant to clause (1) above, the Default Settlement Method will automatically be deemed to be set to the Settlement Method so fixed; and (z) upon any such irrevocable election pursuant to clause (2) above, the Company will, if needed, simultaneously change the Default Settlement Method to a Settlement Method that is consistent with such irrevocable election. Such
notice, if sent, must set forth the applicable Settlement Method(s) so elected or eliminated, as applicable, and the Default Settlement Method applicable immediately after such election, and expressly state that the election is irrevocable and
applicable to all Conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Holders. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this
Indenture or the Notes, including pursuant to Section 8.01(G) (it being understood, however, that the Company may nonetheless choose to execute such an amendment at its
option).
(iii) Requirement to Publicly Disclose the Fixed or Default Settlement Method. If the Company changes the Default Settlement Method pursuant to clause (x) of the proviso to the definition of such term or irrevocably fixes the Settlement Method(s) pursuant to Section 5.03(A)(ii),
then the Company will either post the Default Settlement Method or fixed Settlement Method(s), as applicable, on its website or disclose the same in a report that is filed with, or furnished to, the SEC.
- 49 -
(B) Conversion Consideration.
(i) Generally. Subject to Sections 5.03(B)(ii),
5.03(B)(iii) and 5.09(A)(2), the type and amount of consideration (the “Conversion Consideration”) due in respect of each $1,000 principal amount of a Note to be Converted will be as follows:
(1) if Cash Settlement
applies to such Conversion, cash in an amount equal to the sum of the Daily Conversion Values for each VWAP Trading Day in the Observation Period for such Conversion; or
(2) if Combination
Settlement applies to such Conversion, consideration consisting of (a) a number of shares of Class A Common Stock equal to the sum of the Daily Share Amounts for each VWAP Trading Day in the Observation Period for such Conversion; and (b) an
amount of cash equal to the sum of the Daily Cash Amounts for each VWAP Trading Day in such Observation Period.
(ii) Cash in Lieu of Fractional Shares. If Combination Settlement applies to the Conversion of any Note and the number of shares of Class A Common Stock deliverable pursuant to Section 5.03(B)(i) upon such Conversion is not a whole number, then such number will be rounded down to the nearest whole number and the Company will deliver, in addition to the
other consideration due upon such Conversion, cash in lieu of the related fractional share in an amount equal to the product of (1) such fraction and (2) the Daily VWAP on the last VWAP Trading Day of the Observation Period for such Conversion.
(iii) Conversion of Multiple Notes by a Single Holder. If a Holder Converts more than one (1) Note on a single Conversion Date, then the Conversion Consideration due in respect of
such Conversion will (in the case of any Global Note, to the extent permitted by, and practicable under, the Depositary Procedures) be computed based on the total principal amount of Notes Converted on such Conversion Date by such Holder.
(iv) Notice of Calculation of Conversion Consideration. If any Note is to be Converted, then the Company will determine the Conversion Consideration due thereupon promptly following
the last VWAP Trading Day of the applicable Observation Period and will promptly thereafter send notice to the Trustee and the Conversion Agent of the same and the calculation thereof in reasonable detail. Neither the Trustee nor the Conversion
Agent will have any duty to make any such determination.
(C) Delivery of the Conversion Consideration. Except as set forth in Sections 5.05(D) and 5.09, the Company will pay or deliver, as applicable, the Conversion Consideration due upon the Conversion of any Note to the Holder on the
second (2nd) Business Day immediately after the last VWAP Trading Day of the Observation Period for such Conversion.
- 50 -
(D) Deemed Payment of Principal and Interest; Settlement of Accrued Interest Notwithstanding Conversion. If a Holder Converts a Note, then the Company will not adjust the Conversion Rate to account for any
accrued and unpaid interest, if any, on such Note, and, except as provided in Section 5.02(D), the Company’s delivery of the Conversion Consideration due in respect of such
Conversion will be deemed to fully satisfy and discharge the Company’s obligation to pay the principal of, and accrued and unpaid interest, if any, on, such Note to, but excluding the Conversion Date. As a result, except as provided in Section 5.02(D), any accrued and unpaid interest, if any, on a Converted Note will be deemed to be paid in full rather than cancelled, extinguished or forfeited. In addition,
subject to Section 5.02(D), if the Conversion Consideration for a Note consists of both cash and shares of Class A Common Stock, then accrued and unpaid interest, if any,
that is deemed to be paid therewith will be deemed to be paid first out of such cash.
Section 5.04. Reserve and Status of Common Stock Issued Upon Conversion.
(A) Stock Reserve. At all times when any Notes are outstanding, the Company will reserve (out of its authorized and not outstanding shares of Class A Common Stock that are not reserved for other purposes) a
number of shares of Class A Common Stock equal to the product of (i) the aggregate principal amount (expressed in thousands) of all then-outstanding Notes; and (ii) the Conversion Rate then in effect (assuming, for these purposes, that the
Conversion Rate is increased by the maximum amount pursuant to which the Conversion Rate may be increased pursuant to Section 5.07). To the extent the Company delivers
shares of Class A Common Stock held in its treasury in settlement of the Conversion of any Notes, each reference in this Indenture or the Notes to the issuance of shares of Class A Common Stock in connection therewith will be deemed to include
such delivery, mutatis mutandis.
(B) Status of Conversion Shares; Listing. Each Conversion Share, if any, delivered upon Conversion of any Note will be a newly issued or treasury share (except that any Conversion Share delivered by a designated
financial institution pursuant to Section 5.08 need not be a newly issued or treasury share) and will be duly authorized, validly issued, fully paid, non-assessable, free
from preemptive rights and free of any lien or adverse claim (except to the extent of any lien or adverse claim created by the action or inaction of the Holder of such Note or the Person to whom such Conversion Share will be delivered). If the
Class A Common Stock is then listed on any securities exchange, or quoted on any inter-dealer quotation system, then the Company will use commercially reasonable efforts to cause each Conversion Share, when delivered upon Conversion of any Note,
to be admitted for listing on such exchange or quotation on such system.
Section 5.05. Adjustments to the Conversion Rate.
(A) Events Requiring an Adjustment to the Conversion Rate. The Conversion Rate will be adjusted from time to time as follows:
(i) Stock Dividends, Splits and Combinations. If the Company issues solely shares of Class A Common Stock as a dividend or distribution on all or substantially all shares of the
Class A Common Stock, or if the Company effects a stock split or a stock combination of the Class A Common Stock (in each case excluding an issuance solely pursuant to a Common Stock Change Event, as to which Section 5.09 will apply), then the Conversion Rate will be adjusted based on the following formula:
- 51 -
where:
| CR0 | = |
the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such dividend or distribution, or immediately before the Open of Business on the effective date of
such stock split or stock combination, as applicable;
|
|
|
|
|
| CR1 | = |
the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date or the Open of Business on such effective date, as applicable;
|
|
|
|
|
| OS0 | = |
the number of shares of Class A Common Stock outstanding immediately before the Open of Business on such Ex-Dividend Date or effective date, as applicable, without giving effect to such dividend,
distribution, stock split or stock combination; and
|
|
|
|
|
| OS1 | = |
the number of shares of Class A Common Stock outstanding immediately after giving effect to such dividend, distribution, stock split or stock combination.
|
If any dividend, distribution, stock split or stock combination of the type described in this Section 5.05(A)(i) is declared or announced, but not so paid or made, then the Conversion Rate will be readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution or to
effect such stock split or stock combination, to the Conversion Rate that would then be in effect had such dividend, distribution, stock split or stock combination not been declared or announced.
(ii) Rights, Options and Warrants. If the Company distributes, to all or substantially all holders of Class A Common Stock, rights, options or warrants (other than rights issued or
otherwise distributed pursuant to a stockholder rights plan, as to which Sections 5.05(A)(iii)(1) and 5.05(F)
will apply) entitling such holders, for a period of not more than sixty (60) calendar days after the record date of such distribution, to subscribe for or purchase shares of Class A Common Stock at a price per share that is less than the average
of the Last Reported Sale Prices per share of Class A Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced, then the Conversion Rate will be
increased based on the following formula:
where:
| CR0 | = |
the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such distribution;
|
- 52 -
| CR1 | = |
the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
|
| OS | = |
the number of shares of Class A Common Stock outstanding immediately before the Open of Business on such Ex-Dividend Date; |
| X |
= |
the total number of shares of Class A Common Stock issuable pursuant to such rights, options or warrants; and |
| Y | = |
a number of shares of Class A Common Stock obtained by dividing (x) the aggregate price payable to exercise such rights, options or warrants by (y) the average of the Last Reported Sale Prices per share of Class A Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced. |
To the extent such rights, options or warrants are not so distributed, the Conversion Rate will be readjusted to the Conversion Rate that would then
be in effect had the increase to the Conversion Rate for such distribution been made on the basis of only the rights, options or warrants, if any, actually distributed. In addition, to the extent that shares of Class A Common Stock are not delivered
after the expiration of such rights, options or warrants (including as a result of such rights, options or warrants not being exercised), the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the increase to
the Conversion Rate for such distribution been made on the basis of delivery of only the number of shares of Class A Common Stock actually delivered upon exercise of such rights, options or warrants.
For purposes of this Section 5.05(A)(ii) and Section 5.01(C)(i)(3)(a)(I), in determining whether any rights, options or warrants entitle holders of Class A Common Stock to subscribe for or purchase shares of Class A Common Stock at a price per
share that is less than the average of the Last Reported Sale Prices per share of Class A Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date the distribution of such rights,
options or warrants is announced, and in determining the aggregate price payable to exercise such rights, options or warrants, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount
payable on exercise thereof, with the value of such consideration, if not cash, to be determined by the Board of Directors.
(iii) Spin-Offs and Other Distributed Property.
(1) Distributions Other than Spin-Offs. If the Company distributes shares of its Capital Stock, evidences of its indebtedness or other assets or property of the Company, or rights,
options or warrants to acquire Capital Stock of the Company or other securities, to all or substantially all holders of the Class A Common Stock, excluding:
- 53 -
(u) dividends,
distributions, rights, options or warrants for which an adjustment to the Conversion Rate is required (or would be required without regard to Section 5.05(C)) pursuant to Section 5.05(A)(i) or 5.05(A)(ii);
(v) dividends or
distributions paid exclusively in cash for which an adjustment to the Conversion Rate is required (or would be required without regard to Section 5.05(C)) pursuant to Section 5.05(A)(iv);
(w) rights issued or
otherwise distributed pursuant to a stockholder rights plan, except to the extent provided in Section 5.05(F);
(x) Spin-Offs for
which an adjustment to the Conversion Rate is required (or would be required without regard to Section 5.05(C)) pursuant to Section 5.05(A)(iii)(2);
(y) a distribution
solely pursuant to a tender offer or exchange offer for shares of Class A Common Stock, as to which Section 5.05(A)(v) will apply; and
(z) a distribution
solely pursuant to a Common Stock Change Event, as to which Section 5.09 will apply,
then the Conversion Rate will be increased based on the following formula:
where:
| CR0 | = | the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such distribution; |
|
|
|
|
|
CR1
|
= | the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; |
|
|
|
|
|
SP
|
= |
the average of the Last Reported Sale Prices per share of Class A Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before such Ex-Dividend Date; and |
|
|
|
|
| FMV | = | the fair market value (as determined by the Board of Directors), as of such Ex-Dividend Date, of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed per share of Class A Common Stock pursuant to such distribution; |
- 54 -
provided, however, that if FMV is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Conversion Rate, each Holder will receive, for each $1,000 principal amount of
Notes held by such Holder on the record date for such distribution, at the same time and on the same terms as holders of Class A Common Stock, and without having to Convert its Notes, the amount and kind of shares of Capital Stock, evidences of
indebtedness, assets, property, rights, options or warrants that such Holder would have received in such distribution if such Holder had owned, on such record date, a number of shares of Class A Common Stock equal to the Conversion Rate in
effect on such record date.
To the extent such distribution is not so paid or made, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of
only the distribution, if any, actually made or paid.
(2) Spin-Offs. If the Company distributes or dividends shares of Capital Stock of any class or series, or similar equity
interests, of or relating to an Affiliate, a Subsidiary or other business unit of the Company to all or substantially all holders of the Class A Common Stock (other than solely pursuant to (x) a Common Stock Change Event, as to which Section 5.09 will apply; or (y) a tender offer or exchange offer for shares of Class A Common Stock, as to which Section 5.05(A)(v) will apply), and such Capital Stock
or equity interests are listed or quoted (or will be listed or quoted upon the consummation of the transaction) on a U.S. national securities exchange (a “Spin-Off”), then the Conversion Rate will be
increased based on the following formula:
where:
|
CR0
|
=
|
the Conversion Rate in effect immediately before the Close of Business on the last Trading Day of the Spin-Off Valuation Period for such Spin-Off;
|
|
CR1
|
=
|
the Conversion Rate in effect immediately after the Close of Business on the last Trading Day of the Spin-Off Valuation Period;
|
|
FMV
|
=
|
the product of (x) the average of the Last Reported Sale Prices per share or unit of the Capital Stock or equity interests distributed in such Spin-Off over the ten (10) consecutive Trading Day period
(the “Spin-Off Valuation Period”) beginning on, and including, the Ex-Dividend Date for such Spin-Off (such average to be determined as if references to Class A Common Stock in the definitions of
Last Reported Sale Price, Trading Day and Market Disruption Event were instead references to such Capital Stock or equity interests); and (y) the number of shares or units of such Capital Stock or equity interests distributed per share
of Class A Common Stock in such Spin-Off; and
|
|
SP
|
=
|
the average of the Last Reported Sale Prices per share of Class A Common Stock for each Trading Day in the Spin-Off Valuation Period.
|
- 55 -
Notwithstanding anything to the contrary in this Section 5.05(A)(iii)(2), if any VWAP Trading Day of the Observation Period for a Note to be Converted
occurs during the Spin-Off Valuation Period for such Spin-Off, then, solely for purposes of determining the Conversion Rate for such VWAP Trading Day for such Conversion, such Spin-Off Valuation Period will be deemed to consist of the Trading
Days occurring in the period from, and including, the Ex-Dividend Date for such Spin-Off to, and including, such VWAP Trading Day.
To the extent any dividend or distribution of the type set forth in this Section 5.05(A)(iii)(2) is declared but not made or paid, the Conversion Rate
will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the dividend or distribution, if any, actually made or paid.
(iv) Cash Dividends or Distributions. If any cash dividend or distribution is made to all or substantially all holders of Class
A Common Stock, then the Conversion Rate will be increased based on the following formula:
where:
|
CR0
|
=
|
the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such dividend or distribution;
|
|
CR1
|
=
|
the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
|
|
SP
|
=
|
the Last Reported Sale Price per share of Class A Common Stock on the Trading Day immediately before such Ex-Dividend Date; and
|
|
D
|
=
|
the cash amount distributed per share of Class A Common Stock in such dividend or distribution;
|
provided, however, that if D is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Conversion Rate, each Holder will receive, for each $1,000 principal amount of
Notes held by such Holder on the record date for such dividend or distribution, at the same time and on the same terms as holders of Class A Common Stock, and without having to Convert its Notes, the amount of cash that such Holder would have
received in such dividend or distribution if such Holder had owned, on such record date, a number of shares of Class A Common Stock equal to the Conversion Rate in effect on such record date.
- 56 -
To the extent such dividend or distribution is declared but not made or paid, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been
made on the basis of only the dividend or distribution, if any, actually made or paid.
(v) Tender Offers or Exchange Offers. If the Company or any of its Subsidiaries makes a payment in respect of a tender offer
or exchange offer for shares of Class A Common Stock (other than solely pursuant to an odd-lot tender offer pursuant to Rule 13e-4(h)(5) under the Exchange Act (or any successor rule)), and the value (determined as of the Expiration Time by the
Board of Directors) of the cash and other consideration paid per share of Class A Common Stock in such tender or exchange offer exceeds the Last Reported Sale Price per share of Class A Common Stock on the Trading Day immediately after the last
date (the “Expiration Date”) on which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), then the Conversion Rate will be increased based on the following
formula:
where:
|
CR0
|
=
|
the Conversion Rate in effect immediately before the Close of Business on the last Trading Day of the Tender/Exchange Offer Valuation Period for such tender or exchange offer;
|
|
CR1
|
=
|
the Conversion Rate in effect immediately after the Close of Business on the last Trading Day of the Tender/Exchange Offer Valuation Period;
|
|
AC
|
=
|
the aggregate value (determined as of the time (the “Expiration Time”) such tender or exchange offer expires by the Board of Directors) of all cash and other
consideration paid for shares of Class A Common Stock purchased or exchanged in such tender or exchange offer;
|
|
OS0
|
=
|
the number of shares of Class A Common Stock outstanding immediately before the Expiration Time (including all shares of Class A Common Stock accepted for purchase or exchange in such tender or exchange
offer);
|
|
OS1
|
=
|
the number of shares of Class A Common Stock outstanding immediately after the Expiration Time (excluding all shares of Class A Common Stock accepted for purchase or exchange in such tender or exchange
offer); and
|
|
SP
|
=
|
the average of the Last Reported Sale Prices per share of Class A Common Stock over the ten (10) consecutive Trading Day period (the “Tender/Exchange Offer Valuation
Period”) beginning on, and including, the Trading Day immediately after the Expiration Date;
|
- 57 -
provided, however, that the Conversion Rate
will in no event be adjusted down pursuant to this Section 5.05(A)(v), except to the extent provided in the immediately following paragraph. Notwithstanding anything to the contrary in this Section 5.05(A)(v), if any VWAP Trading Day of the Observation Period for a Note to be Converted occurs during the Tender/Exchange Offer Valuation Period for such tender or exchange offer, then, solely for
purposes of determining the Conversion Rate for such VWAP Trading Day for such Conversion, such Tender/Exchange Offer Valuation Period will be deemed to consist of the Trading Days occurring in the period from, and including, the Trading Day
immediately after the Expiration Date for such tender or exchange offer to, and including, such VWAP Trading Day.
To the extent such tender or exchange offer is announced but not consummated (including as a result of the Company being precluded from consummating such tender or exchange offer under applicable
law), or any purchases or exchanges of shares of Class A Common Stock in such tender or exchange offer are rescinded, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the
basis of only the purchases or exchanges of shares of Class A Common Stock, if any, actually made, and not rescinded, in such tender or exchange offer.
(B) No Adjustments in Certain Cases.
(i) Where Holders Participate in the Transaction or Event Without Conversion. Notwithstanding anything to the contrary in Section 5.05(A), the Company will not be obligated to adjust the Conversion Rate on account of a transaction or other event otherwise requiring an adjustment pursuant to Section
5.05(A) (other than a stock split or combination of the type set forth in Section 5.05(A)(i) or a tender or exchange offer of the type set forth in Section
5.05(A)(v)) if each Holder participates, at the same time and on the same terms as holders of Class A Common Stock, and solely by virtue of being a Holder of Notes, in such transaction or event without having to Convert such Holder’s
Notes and as if such Holder held a number of shares of Class A Common Stock equal to the product of (i) the Conversion Rate in effect on the related record date; and (ii) the aggregate principal amount (expressed in thousands) of Notes held by
such Holder on such date.
(ii) Certain Events. The Company will not be required to adjust the Conversion Rate except as provided in Section 5.05 or Section 5.07. Without limiting the foregoing, the Company will not be obligated to adjust the Conversion Rate on account of:
(1) except as otherwise provided in Section 5.05, the sale of shares of Class A Common Stock for a purchase price that is less
than the market price per share of Class A Common Stock or less than the Conversion Price;
(2) the issuance of any shares of Class A 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 Class A Common Stock under any such plan;
- 58 -
(3) the issuance of any shares of Class A Common Stock or options or rights to purchase shares of Class A Common Stock pursuant to any present or future employee,
director or consultant benefit plan or program of, or assumed by, the Company or any of its Subsidiaries;
(4) the issuance of any shares of Class A Common Stock pursuant to any option, warrant, right or convertible or exchangeable security of the Company outstanding as of
the Issue Date;
(5) solely a change in the par value of the Class A Common Stock; or
(6) accrued and unpaid interest on the Notes.
(C) Adjustment Deferral. If an adjustment to the Conversion Rate otherwise required by this Article 5
would result in a change of less than one percent (1%) to the Conversion Rate, then, notwithstanding anything to the contrary in this Article 5, the Company may, at its election, defer and carry forward
such adjustment, except that all such deferred adjustments must be given effect immediately upon the earliest of the following: (i) when all such deferred adjustments would, had they not been so deferred and carried forward, result in a change of
at least one percent (1%) to the Conversion Rate; (ii) the Conversion Date of, or any VWAP Trading Day of an Observation Period for, any Note; (iii) the date a Fundamental Change or Make-Whole Fundamental Change occurs; (iv) the date the Company
calls any Notes for Redemption; and (v) November 15, 2029.
(D) Adjustments Not Yet Effective. Notwithstanding anything to the contrary in this Indenture or the Notes, if:
(i) a Note is to be Converted and Combination Settlement applies to such conversion;
(ii) the record date, effective date or Expiration Time for any event that requires an adjustment to the Conversion Rate pursuant to Section
5.05(A) has occurred on or before any VWAP Trading Day in the Observation Period for such Conversion, but an adjustment to the Conversion Rate for such event has not yet become effective as of such Conversion Date or VWAP Trading Day;
(iii) the Conversion Consideration due in respect of such VWAP Trading Day includes any whole or fractional shares of Class A Common Stock; and
(iv) such shares are not entitled to participate in such event (because they were not held on the related record date or otherwise),
then, solely for purposes of such Conversion, the Company will, without duplication, give effect to such adjustment on such VWAP Trading Day. In such case, if the date on which the Company is otherwise required to
deliver the consideration due upon such Conversion is before the first date on which the amount of such adjustment can be determined, then the Company will delay the settlement of such Conversion until the second (2nd) Business Day after such
first date.
- 59 -
(E) Conversion Rate Adjustments Where Converting Holders Participate in the Relevant Transaction or Event. Notwithstanding anything to the
contrary in this Indenture or the Notes, if:
(i) a Conversion Rate adjustment for any dividend or distribution becomes effective on any Ex-Dividend Date pursuant to Section
5.05(A);
(ii) a Note is to be Converted pursuant to Combination Settlement;
(iii) any VWAP Trading Day in the Observation Period for such Conversion occurs on or after such Ex-Dividend Date and on or before the related record date;
(iv) the Conversion Consideration due in respect of such VWAP Trading Day includes any whole or fractional shares of Class A Common Stock, in each case, based on a
Conversion Rate that is adjusted for such dividend or distribution; and
(v) such shares would be entitled to participate in such dividend or distribution (including pursuant to Section 5.02(C)),
then the Conversion Rate adjustment relating to such Ex-Dividend Date will be made for such Conversion in respect of such VWAP Trading Day, but the shares of Class A Common Stock issuable with respect to such VWAP
Trading Day based on such adjusted Conversion Rate will not be entitled to participate in such dividend or distribution.
(F) Stockholder Rights Plans. If the Company has a stockholder rights plan in effect upon Conversion of any Notes into Class A Common Stock, the
Holder will receive, in addition to any shares of Class A Common Stock received in connection with such Conversion, the rights under the stockholder rights plan. However, if, prior to any Conversion, the rights have separated from the shares of
Class A Common Stock in accordance with the provisions of the applicable stockholder rights plan, then the Conversion Rate will be adjusted pursuant to Section 5.05(A)(iii)(1) at the time of such separation as if the Company distributed to all or
substantially all holders of its Class A Common Stock, shares of its Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants as described above in Section 5.05(A)(iii)(1) on
account of such separation as if, at the time of such separation, the Company had made a distribution of the type referred to in such Section to all holders of the Class A Common Stock, subject to potential readjustment in accordance with the
last paragraph of Section 5.05(A)(iii)(1).
(G) Limitation on Effecting Transactions Resulting in Certain Adjustments. The Company will not engage in or be a party to any transaction or
event that would require the Conversion Rate to be adjusted pursuant to Section 5.05(A) or Section 5.07 to an amount that would result in the Conversion Price per
share of Class A Common Stock being less than the par value per share of Class A Common Stock.
- 60 -
(H) Equitable Adjustments to Prices. Whenever any provision of this Indenture requires the Company to calculate the average of the Last Reported
Sale Prices, or any function thereof, over a period of multiple days (including to calculate the Stock Price or an adjustment to the Conversion Rate), or to calculate Daily VWAPs, Daily Conversion Values, Daily Cash Amount or Daily Share Amounts
over an Observation Period, the Company will, if appropriate, make proportionate adjustments to such calculations to account for any adjustment to the Conversion Rate pursuant to Section 5.05(A) that
becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, effective date or Expiration Date, as applicable, of such event occurs, at any time during such period or Observation Period, as
applicable.
(I) Calculation of Number of Outstanding Shares of Class A Common Stock. For purposes of Section 5.05(A),
the number of shares of Class A Common Stock outstanding at any time will (i) include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Class A Common Stock; and (ii) exclude shares of Class A Common Stock
held in the Company’s treasury (unless the Company pays any dividend or makes any distribution on shares of Class A Common Stock held in its treasury).
(J) Calculations. All calculations with respect to the Conversion Rate and adjustments thereto will be made to the nearest 1/10,000th of a share
of Class A Common Stock (with 5/100,000ths rounded upward).
(K) Notice of Conversion Rate Adjustments. Upon the effectiveness of any adjustment to the Conversion Rate pursuant to Section 5.05(A), the Company will promptly send notice to the Holders, the Trustee and the Conversion Agent containing (i) a brief description of the transaction or other event on account of which such adjustment was made; (ii)
the Conversion Rate in effect immediately after such adjustment; and (iii) the effective time of such adjustment.
Section 5.06. Voluntary Adjustments.
(A) Generally. To the extent permitted by law and applicable stock exchange rules, the Company, from time to time, may (but is not required to)
increase the Conversion Rate by any amount if (i) the Board of Directors determines that such increase is either (x) in the best interest of the Company; or (y) advisable to avoid or diminish any income tax imposed on holders of Class A Common
Stock or rights to purchase Class A Common Stock as a result of any dividend or distribution of shares (or rights to acquire shares) of Class A Common Stock or any similar event; (ii) such increase is in effect for a period of at least twenty
(20) Business Days; and (iii) such increase is irrevocable during such period.
(B) Notice of Voluntary Increases. If the Board of Directors determines to increase the Conversion Rate pursuant to Section 5.06(A), then, no later than the first Business Day of the related twenty (20) Business Day period referred to in Section 5.06(A), the Company will send notice to each Holder, the
Trustee and the Conversion Agent of such increase, the amount thereof and the period during which such increase will be in effect.
Section 5.07. Adjustments to the Conversion Rate in Connection with a Make-Whole Fundamental Change.
(A) Generally. If a Make-Whole Fundamental Change occurs and the Conversion Date for the Conversion of a Note occurs during the related Make-Whole
Fundamental Change Conversion Period, then, subject to this Section 5.07, the Conversion Rate applicable to such Conversion will be increased by a number of shares (the “Additional
Shares”) set forth in the table below corresponding (after interpolation as provided in, and subject to, the provisions below) to the Make-Whole Fundamental Change Effective Date and the Stock Price of such Make-Whole Fundamental Change:
- 61 -
|
Stock Price
|
||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Make-Whole
Fundamental
Change Effective
Date
|
|
$204.89
|
|
$250.00
|
|
$291.97
|
$335.00
|
$379.56
|
$425.00
|
$525.00
|
$625.00
|
|
$725.00
|
$825.00
|
$925.00
|
$1,050.00
|
$1,200.00
|
|||||||||||||||||||||||||||||||||||
|
May 30, 2025
|
1.4556
|
0.9726
|
0.6915
|
0.4996
|
0.3637
|
0.2671
|
0.1397
|
0.0741
|
0.0385
|
0.0188
|
0.0081
|
0.0018
|
0.0000
|
|||||||||||||||||||||||||||||||||||||||
|
May 15, 2026
|
1.4556
|
0.9726
|
0.6776
|
0.4791
|
0.3409
|
0.2443
|
0.1207
|
0.0600
|
0.0287
|
0.0124
|
0.0043
|
0.0004
|
0.0000
|
|||||||||||||||||||||||||||||||||||||||
|
May 15, 2027
|
1.4556
|
0.9409
|
0.6348
|
0.4333
|
0.2968
|
0.2043
|
0.0916
|
0.0404
|
0.0163
|
0.0053
|
0.0009
|
0.0000
|
0.0000
|
|||||||||||||||||||||||||||||||||||||||
|
May 15, 2028
|
1.4556
|
0.8815
|
0.5624
|
0.3607
|
0.2306
|
0.1474
|
0.0549
|
0.0189
|
0.0050
|
0.0005
|
0.0000
|
0.0000
|
0.0000
|
|||||||||||||||||||||||||||||||||||||||
|
May 15, 2029
|
1.4556
|
0.7752
|
0.4356
|
0.2407
|
0.1302
|
0.0693
|
0.0159
|
0.0022
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
|||||||||||||||||||||||||||||||||||||||
|
May 15, 2030
|
1.4556
|
0.5749
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
|||||||||||||||||||||||||||||||||||||||
If such Make-Whole Fundamental Change Effective Date or Stock Price is not set forth in the table above, then:
(i) if such Stock Price is between two Stock Prices in the table above or the Make-Whole Fundamental Change Effective Date is between two dates in the table above,
then the number of Additional Shares will be determined by straight-line interpolation between the numbers of Additional Shares set forth for the higher and lower Stock Prices in the table above or the earlier and later dates in the table above,
based on a 365- or 366-day year, as applicable; and
(ii) if the Stock Price is greater than $1,200.00 (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above are
adjusted pursuant to Section 5.07(B)), or less than $204.89 (subject to adjustment in the same manner), per share, then no Additional Shares will be added to the Conversion Rate.
Notwithstanding anything to the contrary in this Indenture or the Notes, in no event will the Conversion Rate be increased to an amount that exceeds 4.8806 shares of Class A Common Stock per
$1,000 principal amount of Notes, which amount is subject to adjustment in the same manner as, and at the same time and for the same events for which, the Conversion Rate is required to be adjusted pursuant to Section
5.05(A).
For the avoidance of doubt, but subject to Section 4.03(I), (x) the sending of a Redemption Notice will constitute a Make-Whole Fundamental Change only
with respect to the Notes called for Redemption pursuant to such Redemption Notice, and not with respect to any other Notes; and (y) the Conversion Rate applicable to the Notes not so called for Redemption will not be subject to increase pursuant
to this Section 5.07 on account of such Redemption Notice.
(B) Adjustment of Stock Prices and Number of Additional Shares. The Stock Prices in the first row (i.e.,
the column headers) of the table set forth in Section 5.07(A) will be adjusted in the same manner as, and at the same time and for the same events for which, the Conversion Price is adjusted as a result of
the operation of Section 5.05(A). The numbers of Additional Shares in the table set forth in Section 5.07(A) will be adjusted in the same manner as, and at the same
time and for the same events for which, the Conversion Rate is adjusted pursuant to Section 5.05(A).
- 62 -
(C) Notice of the Occurrence of a Make-Whole Fundamental Change. The Company will notify the Holders, the Trustee and the Conversion Agent of each
Make-Whole Fundamental Change (i) occurring pursuant to clause (A) of the definition thereof in accordance with Section 5.01(C)(i)(3)(b); and (ii) occurring
pursuant to clause (B) of the definition thereof in accordance with Section 4.03(F).
Section 5.08. Exchange in Lieu of Conversion.
Notwithstanding anything to the contrary in this Article 5, and subject to the terms of this Section 5.08, if a
Note is submitted for Conversion, the Company may elect to arrange to have such Note exchanged in lieu of Conversion by a financial institution designated by the Company. To make such election, the Company must send notice of such election to the
Holder of such Note, the Trustee and the Conversion Agent before the Close of Business on the Business Day immediately following the Conversion Date for such Note. If the Company has made such election, then:
(A) no later than the Business Day immediately following such Conversion Date, the Company must deliver (or cause the Conversion Agent to deliver) such Note, together with delivery
instructions for the Conversion Consideration due upon such Conversion (including wire instructions, if applicable), to a financial institution designated by the Company that has agreed to deliver such Conversion Consideration in the same manner
and at the same time as the Company would have had to deliver the same pursuant to this Article 5;
(B) if such Note is a Global Note, then (i) such designated institution will send written confirmation to the Conversion Agent promptly after wiring the cash Conversion Consideration, if
any, and delivering any other Conversion Consideration, due upon such Conversion to the Holder of such Note; and (ii) the Conversion Agent will as soon as reasonably practicable thereafter contact such Holder’s custodian with the Depositary to
confirm receipt of the same; and
(C) such Note will not cease to be outstanding by reason of such exchange in lieu of Conversion;
provided, however, that if such financial institution does not
accept such Note or fails to timely deliver such Conversion Consideration, then the Company will be responsible for delivering such Conversion Consideration in the manner and at the time provided in this Article
5 as if the Company had not elected to make an exchange in lieu of Conversion.
Section 5.09. Effect of Common Stock Change Event.
(A) Generally. If there occurs any:
(i) recapitalization, reclassification or change of the Class A Common Stock (other than (x) changes solely resulting from a subdivision or combination of the Class A
Common Stock, (y) a change only in par value or from par value to no par value or no par value to par value and (z) stock splits and stock combinations that do not involve the issuance of any other series or class of securities);
- 63 -
(ii) consolidation, merger, combination or binding or statutory share exchange involving the Company;
(iii) sale, lease or other transfer of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person; or
(iv) other similar event,
and, as a result of which, the Class A Common Stock is converted into, or is exchanged for, or represents solely the right to receive, other securities, cash or other property, or any combination of the foregoing
(such an event, a “Common Stock Change Event,” and such other securities, cash or property, the “Reference Property,” and the amount and kind of Reference Property
that a holder of one (1) share of Class A Common Stock would be entitled to receive on account of such Common Stock Change Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other
property), a “Reference Property Unit”), then, notwithstanding anything to the contrary in this Indenture or the Notes,
(1) from and after the effective time of such Common Stock Change Event, (I) the Conversion Consideration due upon Conversion of any Note, and the conditions to any
such Conversion, will be determined in the same manner as if each reference to any number of shares of Class A Common Stock in this Article 5 (or in any related definitions) were instead a reference to the
same number of Reference Property Units; (II) for purposes of Section 4.03, each reference to any number of shares of Class A Common Stock in such Section (or in any related definitions) will instead be
deemed to be a reference to the same number of Reference Property Units; and (III) for purposes of the definitions of “Fundamental Change” and “Make-Whole Fundamental Change,” references to “Class A Common Stock,” “Common Stock” and the Company’s
“Common Equity” will be deemed to refer to the Common Equity (including depositary receipts representing Common Equity), if any, forming part of such Reference Property;
(2) if such Reference Property Unit consists entirely of cash, then (I) each Conversion of any Note with a Conversion Date that occurs on or after the effective date of
such Class A Common Stock Change Event will be settled entirely in cash in an amount, per $1,000 principal amount of such Note being Converted, equal to the product of (x) the Conversion Rate in effect on such Conversion Date (including, for the
avoidance of doubt, any increase to such Conversion Rate pursuant to Section 5.07, if applicable); and (y) the amount of cash constituting such Reference Property Unit; and (II) the Company will settle
each such Conversion no later than the tenth (10th) Business Day after the relevant Conversion Date; and
(3) for these purposes, (I) the Daily VWAP of any Reference Property Unit or portion thereof that consists of a class of Common Equity securities will be determined by
reference to the definition of “Daily VWAP,” substituting, if applicable, the Bloomberg page for such class of securities in such definition; and (II) the Daily VWAP of any Reference Property Unit or portion thereof that does not consist of a
class of Common Equity securities, and the Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of a class of securities, will be the fair value of such Reference Property Unit or portion thereof, as
applicable, determined in good faith and in a commercially reasonable manner by the Company (or, in the case of cash denominated in U.S. dollars, the face amount thereof).
- 64 -
If the Reference Property consists of more than a single type of consideration to be determined based in part upon any form of stockholder election, then the composition of the Reference Property
Unit will be deemed to be the weighted average of the types and amounts of consideration actually received, per share of Class A Common Stock, by the holders of Class A Common Stock. The Company will notify Holders, the Trustee and the Conversion
Agent of such weighted average as soon as practicable after such determination is made. For the avoidance of doubt, the conversion of any Class B Common Stock into Class A Common Stock will not constitute a Common Stock Change Event.
At or before the effective time of such Common Stock Change Event, the Company and the resulting, surviving or transferee Person (if not the Company) of such Common Stock Change Event (the “Successor Person”) will execute and deliver to the Trustee a supplemental indenture pursuant to Section 8.01(F), which supplemental indenture will (x) provide for
subsequent Conversions of Notes in the manner set forth in this Section 5.09; (y) provide for subsequent adjustments to the Conversion Rate pursuant to Section 5.05(A)
in a manner consistent with this Section 5.09; and (z) contain such other provisions, if any, that the Company reasonably determines are appropriate to preserve the economic interests of the Holders and to
give effect to the provisions of this Section 5.09(A). If the Reference Property includes shares of stock or other securities or assets (other than cash) of a Person other than the Successor Person, then
such other Person will also execute such supplemental indenture and such supplemental indenture will contain such additional provisions, if any, that the Company reasonably determines are appropriate to preserve the economic interests of the
Holders.
(B) Notice of Common Stock Change Events. The Company will provide notice of each Common Stock Change Event to Holders, the Trustee and the
Conversion Agent no later than the Business Day after the effective date of such Common Stock Change Event.
(C) Compliance Covenant. The Company will not become a party to any Common Stock Change Event unless its terms are consistent with this Section 5.09.
Article 6. SUCCESSORS
Section 6.01. When the Company May Merge, Etc.
(A) Generally. The Company will not consolidate with or merge with or into, or (directly, or indirectly through one or more of its Subsidiaries)
sell, lease or otherwise transfer, in one transaction or a series of transactions, all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to another Person (a “Business
Combination Event”), unless:
(i) the resulting, surviving or transferee Person either (x) is the Company or (y) if not the Company, is a Qualified Successor Entity (such Qualified Successor Entity,
the “Successor Entity”) duly organized and existing under the laws of the United States of America, any State thereof or the District of Columbia that expressly assumes (by executing and delivering to the
Trustee, at or before the effective time of such Business Combination Event, a supplemental indenture pursuant to Section 8.01(E)) all of the Company’s obligations under this Indenture and the Notes; and
- 65 -
(ii) immediately after giving effect to such Business Combination Event, no Default or Event of Default will have occurred and be continuing.
(B) Delivery of Officer’s Certificate and Opinion of Counsel to the Trustee. At or before the effective time of any Business Combination Event,
the Company will deliver to the Trustee an Officer’s Certificate and Opinion of Counsel, each stating that (i) such Business Combination Event (and, if applicable, the related supplemental indenture) comply with Section
6.01(A); and (ii) all conditions precedent to such Business Combination Event provided in this Indenture have been satisfied.
Section 6.02. Successor Entity Substituted.
At the effective time of any Business Combination Event that complies with Section 6.01, the Successor Entity (if not the Company) will succeed to, and
may exercise every right and power of, the Company under this Indenture and the Notes, and, except in the case of a lease, the predecessor Company will be discharged from its obligations under this Indenture and the Notes.
Section 6.03. Exclusion for Asset Transfers with Wholly Owned Subsidiaries.
Notwithstanding anything to the contrary in this Article 6, this Article 6 will not apply to any transfer of
assets (other than by merger or consolidation with the Company) between or among the Company and any one or more of its Wholly Owned Subsidiaries. For the avoidance of doubt, in the case of any such transfer, the transferee will not succeed to
the transferor, and the transferor will not be discharged from its obligations, under this Indenture and the Notes.
Article 7. DEFAULTS AND REMEDIES
Section 7.01. Events of Default.
(A) Definition of Events of Default. “Event of Default” means the occurrence of any of the following:
(i) a default in the payment when due (whether at maturity, upon Redemption or Repurchase Upon Fundamental Change or otherwise) of the principal of, or the Redemption
Price or Fundamental Change Repurchase Price for, any Note;
(ii) a default for thirty (30) consecutive days in the payment when due of Special Interest or Additional Interest, if any, that has accrued on any Note;
(iii) the Company’s failure to deliver, when required by this Indenture, a Fundamental Change Notice, or a notice pursuant to Section
5.01(C)(i)(3), if (in the case of any notice other than a notice pursuant to Section 5.01(C)(i)(3)(a)) such failure is not cured within five (5) Business Days after its occurrence;
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(iv) a default in the Company’s obligation to Convert a Note in accordance with Article 5 upon the exercise of the Conversion
right with respect thereto, if such default is not cured within three (3) Business Days after its occurrence;
(v) a default in the Company’s obligations under Article 6;
(vi) a default in any of the Company’s obligations or agreements under this Indenture or the Notes (other than a default set forth in clause (i), (ii), (iii), (iv) or (v) of this Section 7.01(A)) where such default is not cured or waived within sixty (60) days after notice to the Company by the Trustee, or to the Company and the Trustee by Holders of at least twenty five percent (25%)
of the aggregate principal amount of Notes then outstanding, which notice must specify such default, demand that it be remedied and state that such notice is a “Notice of Default”;
(vii) a default by the Company or any of the Company’s Significant Subsidiaries with respect to any one or more mortgages, agreements or other instruments under which
there is outstanding, or by which there is secured or evidenced, any indebtedness for money borrowed of at least one hundred and fifty million dollars ($150,000,000) (or its foreign currency equivalent) in the aggregate of the Company or any of
the Company’s Significant Subsidiaries, whether such indebtedness exists as of the Issue Date or is thereafter created, where such default:
(1) constitutes a failure to pay the principal of such indebtedness when due and payable at its stated maturity, upon required repurchase, upon declaration of
acceleration or otherwise, in each case after the expiration of any applicable grace period; or
(2) results in such indebtedness becoming or being declared due and payable before its stated maturity;
in each case where such default is not cured or waived within thirty (30) days after notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least twenty five
percent (25%) of the aggregate principal amount of Notes then outstanding;
(viii) [Reserved];
(ix) the Company or any of its Significant Subsidiaries, pursuant to or within the meaning of any Bankruptcy Law, either:
(1) commences a voluntary case or proceeding;
(2) consents to the entry of an order for relief against it in an involuntary case or proceeding;
(3) consents to the appointment of a custodian of it or for any substantial part of its property;
(4) makes a general assignment for the benefit of its creditors;
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(5) takes any comparable action under any foreign Bankruptcy Law; or
(6) generally is not paying its debts as they become due; or
(x) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that either:
(1) is for relief against the Company or any of its Significant Subsidiaries in an involuntary case or proceeding;
(2) appoints a custodian of the Company or any of its Significant Subsidiaries, or for any substantial part of the property of the Company or any of its Significant
Subsidiaries;
(3) orders the winding up or liquidation of the Company or any of its Significant Subsidiaries; or
(4) grants any similar relief under any foreign Bankruptcy Law,
and, in each case under this Section 7.01(A)(x), such order or decree remains unstayed and in effect for at least sixty (60) days.
(B) Cause Irrelevant. Each of the events set forth in Section 7.01(A) will constitute an Event of Default
regardless of the cause thereof or whether voluntary or involuntary or 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.
Section 7.02. Acceleration.
(A) Automatic Acceleration in Certain Circumstances. If an Event of Default set forth in Section 7.01(A)(ix)
or 7.01(A)(x) occurs with respect to the Company (and not solely with respect to a Significant Subsidiary of the Company), then the principal amount of, and all accrued and unpaid Special Interest and
Additional Interest, if any, on, all of the Notes then outstanding will immediately become due and payable without any further action or notice by any Person.
(B) Optional Acceleration. Subject to Section 7.03, if an Event of Default (other than an Event of
Default set forth in Section 7.01(A)(ix) or 7.01(A)(x) with respect to the Company and not solely with respect to a Significant Subsidiary of the Company) occurs
and is continuing, then the Trustee, by notice to the Company, or Holders of at least twenty five percent (25%) of the aggregate principal amount of Notes then outstanding, by notice to the Company and the Trustee, may declare the principal
amount of, and all accrued and unpaid Special Interest and Additional Interest, if any, on, all of the Notes then outstanding to become due and payable immediately. For the avoidance of doubt, if such Event of Default is not continuing at the
time such notice is provided (that is, such Event of Default has been cured or waived as of such time), then such notice will not be effective to cause such amounts to become due and payable immediately.
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(C) Rescission of Acceleration. Notwithstanding anything to the contrary in this Indenture or the Notes, the Holders of a majority in aggregate
principal amount of the Notes then outstanding, by notice to the Company and the Trustee, may, on behalf of all Holders, rescind any acceleration of the Notes and its consequences if (i) such rescission would not conflict with any judgment or
decree of a court of competent jurisdiction; and (ii) all existing Events of Default (except the non-payment of principal of, or Special Interest or Additional Interest, if any, on, the Notes that has become due solely because of such
acceleration) have been cured or waived. No such rescission will affect any subsequent Default or impair any right consequent thereto.
Section 7.03. Sole Remedy for a Failure to Report.
(A) Generally. Notwithstanding anything to the contrary in this Indenture or the Notes, the Company may elect that the sole remedy for any Event
of Default (a “Reporting Event of Default”) pursuant to Section 7.01(A)(vi) arising from the Company’s failure to comply with Section
3.02 will, for each of the first three hundred sixty-five (365) calendar days on which a Reporting Event of Default has occurred and is continuing, consist exclusively of the accrual of Special Interest on the Notes. If the Company has
made such an election, then (i) the Notes will be subject to acceleration pursuant to Section 7.02 on account of the relevant Reporting Event of Default from, and including, the three hundred and
sixty-sixth (366th) calendar day on which a Reporting Event of Default has occurred and is continuing or if the Company fails to pay any accrued and unpaid Special Interest when due; and (ii) Special Interest will cease to accrue on any Notes
from, and including, such three hundred and sixty-sixth (366th) calendar day.
(B) Amount and Payment of Special Interest. Any Special Interest that accrues on a Note pursuant to Section
7.03(A) will accrue at a rate per annum equal to one quarter of one percent (0.25%) of the principal amount thereof for the first one-hundred-and-eighty (180) days on which Special Interest accrues and, thereafter, at a rate per annum
equal to one half of one percent (0.50%) of the principal amount thereof; provided, however, that in no event will Special Interest payable at the Company’s
election pursuant to the provisions of this Section 7.03, together with any Additional Interest (excluding any interest that accrues on any Deferred Additional Interest pursuant to Section 3.04(C)), accrue
on any day on a Note at a combined rate per annum that exceeds one half of one percent (0.50%). For the avoidance of doubt, any Special Interest that accrues on a Note will be, subject to the preceding sentence, in addition to any Additional
Interest that accrues on such Note.
(C) Notice of Election. To make the election set forth in Section 7.03(A), the Company must send to the
Holders, the Trustee and the Paying Agent before the date on which each Reporting Event of Default first occurs, a notice that briefly describes the periods during which and rate at which Special Interest will accrue and the circumstances under
which the Notes will be subject to acceleration on account of such Reporting Event of Default.
(D) Notice to Trustee and Paying Agent; Trustee’s Disclaimer. If Special Interest accrues on any Note, then, no later than five (5) Business Days
before each date on which such Special Interest is to be paid, the Company will deliver an Officer’s Certificate to the Trustee and the Paying Agent stating (i) that the Company is obligated to pay Special Interest, if any, on such Note on such
date of payment; and (ii) the amount of such Special Interest that is payable on such date of payment. The Trustee will have no duty to determine whether any Special Interest is payable or the amount thereof.
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(E) No Effect on Other Events of Default. No election pursuant to this Section 7.03 with respect to a
Reporting Event of Default will affect the rights of any Holder with respect to any other Event of Default, including with respect to any other Reporting Event of Default.
Section 7.04. Other Remedies.
(A) Trustee May Pursue All Remedies. If an Event of Default occurs and is continuing, then the Trustee may pursue any available remedy to collect
the payment of any amounts due with respect to the Notes or to enforce the performance of any provision of this Indenture or the Notes.
(B) Procedural Matters. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in such
proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy following an Event of Default will not impair the right or remedy or constitute a waiver of, or acquiescence in, such Event of Default. All remedies
will be cumulative to the extent permitted by law.
Section 7.05. Waiver of Past Defaults.
A Default that is (or, after notice, passage of time or both, would be) an Event of Default pursuant to clause (i),
(ii), (iv) or (vi) of Section 7.01(A) (that, in the case of clause (vi) only, results from a Default under any covenant that cannot be amended without the consent of each affected Holder) can be waived only with the consent of each affected Holder. Each other Default or
Event of Default may be waived, on behalf of all Holders, by the Holders of a majority in aggregate principal amount of the Notes then outstanding. If an Event of Default is so waived, then it will cease to exist. If a Default is so waived, then
it will be deemed to be cured and any Event of Default arising therefrom will be deemed not to occur. However, no such waiver will extend to any subsequent or other Default or Event of Default or impair any right arising therefrom. Each such
waiver of a Default or Event of Default will have the effect set forth in Section 8.04(D).
Section 7.06. Cure of Defaults; Ability to Cure or Waive Before Event of Default Occurs.
For the avoidance of doubt, and without limiting the manner in which any Default can be cured, (A) a Default consisting of a failure to send a notice in accordance with this Indenture will be
cured upon the sending of such notice; (B) a Default in making any payment on (or delivering any other consideration in respect of) any Note will be cured upon the delivery, in accordance with this Indenture, of such payment (or other
consideration) together, if applicable, with Default Interest thereon; and (C) a Default that is (or, after notice, passage of time or both, would be) a Reporting Event of Default will be cured upon the filing of the relevant report(s) giving
rise to such Default. In addition, for the avoidance of doubt, if a Default that is not an Event of Default is cured or waived before such Default would have constituted an Event of Default, then no Event of Default will result from such Default.
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Section 7.07. Control by Majority.
Holders of a majority in aggregate principal amount of the Notes then outstanding may direct the time, method and place of conducting any proceeding for exercising any remedy available to the
Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law, this Indenture or the Notes, or that, subject to Section 10.01,
the Trustee determines may be unduly prejudicial to the rights of other Holders or may involve the Trustee in liability, unless the Trustee is offered (and, if requested, provided with) security and indemnity satisfactory to the Trustee against
any loss, liability or expense to the Trustee that may result from the Trustee’s following such direction.
Section 7.08. Limitation on Suits.
No Holder may pursue any remedy with respect to this Indenture or the Notes, unless:
(A) such Holder has previously delivered to the Trustee notice that an Event of Default is continuing;
(B) Holders of at least twenty five percent (25%) in aggregate principal amount of the Notes then outstanding deliver a written request to the Trustee to pursue such remedy;
(C) such Holder or Holders offer and, if requested, provide to the Trustee security and indemnity satisfactory to the Trustee against any loss, liability or expense to the Trustee that
may result from the Trustee’s following such request;
(D) the Trustee does not comply with such request within sixty (60) calendar days after its receipt of such request and such offer of security or indemnity; and
(E) during such sixty (60) calendar day period, Holders of a majority in aggregate principal amount of the Notes then outstanding do not deliver to the Trustee a direction that is
inconsistent with such request.
A Holder of a Note may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder. The Trustee will have no duty to determine
whether any Holder’s use of this Indenture complies with the preceding sentence.
Section 7.09. Absolute Right of Holders to Institute Suit for the Enforcement of the Right to Receive Payment and
Conversion Consideration.
Notwithstanding anything to the contrary in this Indenture or the Notes (but without limiting Section 8.01), the right of each Holder of a Note to bring
suit for the enforcement of any payment or delivery, as applicable, of the principal of, or the Redemption Price or Fundamental Change Repurchase Price for, or any Special Interest or Additional Interest on, or the Conversion Consideration due
pursuant to Article 5 upon Conversion of, such Note on or after the respective due dates therefor provided in this Indenture and the Notes, will not be impaired or affected without the consent of such
Holder.
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Section 7.10. Collection Suit by Trustee.
The Trustee will have the right, upon the occurrence and continuance of an Event of Default pursuant to clause (i),
(ii) or (iv) of Section 7.01(A), to recover judgment in its own name and as trustee of an express trust against the Company
for the total unpaid or undelivered principal of, or Fundamental Change Repurchase Price or Redemption Price for, or any interest, if any, on, or Conversion Consideration due pursuant to Article 5 upon
Conversion of, the Notes, as applicable, and, to the extent lawful, any Default Interest on any Defaulted Amounts, and such further amounts sufficient to cover the costs and expenses of collection, including compensation provided for in Section 10.06.
Section 7.11. Trustee May File Proofs of Claim.
The Trustee has the right to (A) file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor upon the Notes) or its creditors or property and (B) collect, receive and distribute any money or other property payable or deliverable on any such claims. Each Holder authorizes
any custodian in such proceeding to make such payments to the Trustee, and, if the Trustee consents to the making of such payments directly to the Holders, to pay to the Trustee any amount due to the Trustee for the reasonable compensation,
expenses, disbursements and advances of the Trustee, and its agents and counsel, and any other amounts payable to the Trustee pursuant to Section 10.06. To the extent that the payment of any such
compensation, expenses, disbursements, advances and other amounts out of the estate in such proceeding, is denied for any reason, payment of the same will be secured by a lien (senior to the rights of Holders) on, and will be paid out of, any and
all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding (whether in liquidation or under any plan of reorganization or arrangement or otherwise). Nothing in this
Indenture will be deemed to authorize the Trustee to authorize, consent to, accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 7.12. Priorities.
The Trustee will pay or deliver in the following order any money or other property that it collects pursuant to this Article 7:
First: to the Trustee and its agents and attorneys for amounts due under Section 10.06,
including payment of all fees and compensation of, and all expenses and liabilities incurred, and all advances made, by, the Trustee (in each of its capacities under this Indenture, including as Note Agent) and the costs and expenses of
collection;
Second: to Holders for unpaid amounts or other property due on the Notes, including the principal of, or the Fundamental Change
Repurchase Price or Redemption Price for, or any interest on, or any Conversion Consideration due upon Conversion of, the Notes, ratably, and without preference or priority of any kind, according to such amounts or other property due and payable
on all of the Notes; and
Third: to the Company or such other Person as a court of competent jurisdiction directs.
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The Trustee may fix a record date and payment date for any payment or delivery to the Holders pursuant to this Section 7.12, in which case the Trustee
will instruct the Company to, and the Company will, deliver, at least fifteen (15) calendar days before such record date, to each Holder and the Trustee a notice stating such record date, such payment date and the amount of such payment or nature
of such delivery, as applicable.
Section 7.13. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or the Notes or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court, in its
discretion, may (A) require the filing by any litigant party in such suit of an undertaking to pay the costs of such suit; and (B) assess reasonable costs (including reasonable attorneys’ fees) against any litigant party in such suit, having due
regard to the merits and good faith of the claims or defenses made by such litigant party; provided, however, that this Section
7.13 does not apply to any suit by the Trustee, any suit by a Holder pursuant to Section 7.09 or any suit by one or more Holders of more than ten percent (10%) in aggregate principal amount of the
Notes then outstanding.
Article 8. AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without the Consent of Holders.
Notwithstanding anything to the contrary in Section 8.02, the Company and the Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder to:
(A) cure any ambiguity or correct any omission, defect or inconsistency in this Indenture or the Notes;
(B) add guarantees with respect to the Company’s obligations under this Indenture or the Notes;
(C) secure the Notes;
(D) add to the Company’s covenants or Events of Default for the benefit of the Holders or surrender any right or power conferred on the Company;
(E) provide for the assumption of the Company’s obligations under this Indenture and the Notes pursuant to, and in compliance with, Article 6;
(F) enter into supplemental indentures pursuant to, and in accordance with, Section 5.09 in connection with a Common Stock Change Event;
(G) irrevocably elect or eliminate any Settlement Method or Specified Dollar Amount; provided, however,
that (i) no such election or elimination will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to Section 5.03(A); and (ii) such irrevocable
election or elimination can in no event result in a Specified Dollar Amount of less than $1,000 per $1,000 principal amount of Notes applying to the Conversion of any Note;
(H) evidence or provide for the acceptance of the appointment, under this Indenture, of a successor Trustee;
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(I) conform the provisions of this Indenture and the Notes to the “Description of Notes” section of the Company’s preliminary offering memorandum, dated May 27, 2025, as supplemented by
the related pricing term sheet, dated May 27, 2025;
(J) provide for or confirm the issuance of additional Notes pursuant to Section 2.03(B);
(K) comply with any requirement of the SEC in connection with any qualification of this Indenture, or any supplemental indenture, under the Trust Indenture Act, as then in effect; or
(L) make any other change to this Indenture or the Notes that does not, individually or in the aggregate with all other such changes, adversely affect the rights of the Holders, as such,
in any material respect.
At the written request of any Holder of a Note or owner of a beneficial interest in a Global Note, the Company will provide a copy of the “Description of Notes” section and pricing term sheet
referred to in Section 8.01(I).
Section 8.02. With the Consent of Holders.
(A) Generally. Subject to Sections 8.01, 7.05 and 7.09 and the immediately following sentence, the Company and the Trustee may, with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding, amend or supplement this
Indenture or the Notes or waive compliance with any provision of this Indenture or the Notes. Notwithstanding anything to the contrary in the foregoing sentence, but subject to Section 8.01, without the
consent of each affected Holder, no amendment or supplement to this Indenture or the Notes, or waiver of any provision of this Indenture or the Notes, may:
(i) reduce the principal, or extend the stated maturity, of any Note;
(ii) reduce the Redemption Price or Fundamental Change Repurchase Price for any Note or change the times at which, or the circumstances under which, the Notes may or
will be redeemed or repurchased by the Company;
(iii) reduce the rate, or extend the time for the payment, of Special Interest and Additional Interest, if any, on any Note;
(iv) make any change that adversely affects the Conversion rights of any Note;
(v) impair the rights of any Holder set forth in Section 7.09 (as such section is in effect on the Issue Date);
(vi) change the ranking of the Notes;
(vii) make any Note payable in money, or at a place of payment, other than that stated in this Indenture or the Note;
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(viii) reduce the amount of Notes whose Holders must consent to any amendment, supplement, waiver or other modification; or
(ix) make any direct or indirect change to any amendment, supplement, waiver or modification provision of this Indenture or the Notes that requires the consent of each
affected Holder.
For the avoidance of doubt, pursuant to clauses (i), (ii), (iii) and (iv) of this Section 8.02(A), no amendment or supplement to this Indenture or the Notes, or waiver of any provision of
this Indenture or the Notes, may (except as expressly provided otherwise in this Indenture or the Notes) change the type or reduce the amount of consideration due on any Note (whether on an Interest Payment Date, Redemption Date, Fundamental
Change Repurchase Date or the Maturity Date or upon Conversion, or otherwise), or the date(s) or time(s) such consideration is payable or deliverable, as applicable, without the consent of each affected Holder.
(B) Holders Need Not Approve the Particular Form of any Amendment. A consent of any Holder pursuant to this Section
8.02 need approve only the substance, and not necessarily the particular form, of the proposed amendment, supplement or waiver.
Section 8.03. Notice of Amendments, Supplements and Waivers.
As soon as reasonably practicable after any amendment, supplement or waiver pursuant to Section 8.01 or 8.02 becomes effective, the Company will send to the Holders and the Trustee notice that (A) describes the substance of such amendment, supplement or waiver in reasonable detail and (B) states the effective
date thereof; provided, however, that the Company will not be required to provide such notice to the Holders if such amendment, supplement or waiver is included
in a periodic report filed by the Company with the SEC within four (4) Business Days of its effectiveness. The failure to send, or the existence of any defect in, such notice will not impair or affect the validity of such amendment, supplement or
waiver.
Section 8.04. Revocation, Effect and Solicitation of Consents; Special Record Dates; Etc.
(A) Revocation and Effect of Consents. The consent of a Holder of a Note to an amendment, supplement or waiver will bind (and constitute the
consent of) each subsequent Holder of any Note to the extent the same evidences any portion of the same indebtedness as the consenting Holder’s Note, subject to the right of any Holder of a Note to revoke (if not prohibited pursuant to Section 8.04(B)) any such consent with respect to such Note by delivering notice of revocation to the Trustee before the time such amendment, supplement or waiver becomes effective.
(B) Special Record Dates. The Company may, but is not required to, fix a record date for the purpose of determining the Holders entitled to
consent or take any other action in connection with any amendment, supplement or waiver pursuant to this Article 8. If a record date is fixed, then, notwithstanding anything to the contrary in Section 8.04(A), only Persons who are Holders as of such record date (or their duly designated proxies) will be entitled to give such consent, to revoke any consent previously given or to take any such action,
regardless of whether such Persons continue to be Holders after such record date; provided, however, that no such consent will be valid or effective for more than
one hundred and twenty (120) calendar days after such record date.
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(C) Solicitation of Consents. For the avoidance of doubt, each reference in this Indenture or the Notes to the consent of a Holder will be deemed
to include any such consent obtained in connection with a repurchase of, or tender or exchange offer for, any Notes.
(D) Effectiveness and Binding Effect. Each amendment or supplement to this Indenture or the Notes, or waiver of any Default, Event of Default or
compliance with any provision of this Indenture or the Notes, will become effective in accordance with its terms and, when it becomes effective with respect to any Note (or any portion thereof), will thereafter bind every Holder of such Note (or
such portion).
Section 8.05. Notations and Exchanges.
If any amendment, supplement or waiver changes the terms of a Note, then the Trustee or the Company may, in its discretion, require the Holder of such Note to deliver such Note to the Trustee so
that the Trustee may place an appropriate notation prepared by the Company on such Note and return such Note to such Holder. Alternatively, at its discretion, the Company may, in exchange for such Note, issue, execute and deliver, and the Trustee
will authenticate, in each case in accordance with Section 2.02, a new Note that reflects the changed terms. The failure to make any appropriate notation or issue a new Note pursuant to this Section 8.05 will not impair or affect the validity of such amendment, supplement or waiver.
Section 8.06. Trustee to Execute Supplemental Indentures.
The Trustee will execute and deliver any amendment or supplemental indenture authorized pursuant to this Article 8; provided,
however, that the Trustee need not (but may, in its sole and absolute discretion) execute or deliver any such amendment or supplemental indenture that the Trustee concludes adversely affects the Trustee’s
rights, duties, liabilities or immunities. In executing any amendment or supplemental indenture, the Trustee will be entitled to receive, and (subject to Sections 10.01
and 10.02) will be fully protected in relying on, an Officer’s Certificate and an Opinion of Counsel stating that (A) the execution and delivery of such amendment or supplemental indenture is authorized or
permitted by this Indenture; and (B) in the case of the Opinion of Counsel, such amendment or supplemental indenture is valid, binding and enforceable against the Company in accordance with its terms.
Article 9. SATISFACTION AND DISCHARGE
Section 9.01. Termination of Company’s Obligations.
This Indenture will be discharged, and will cease to be of further effect as to all Notes issued under this Indenture, when:
(A) all Notes then outstanding (other than Notes replaced pursuant to Section 2.13) have (i) been delivered to the Trustee for cancellation; or
(ii) become due and payable (whether on a Redemption Date, a Fundamental Change Repurchase Date, the Maturity Date, upon Conversion or otherwise) for an amount of cash or Conversion Consideration, as applicable, that has been fixed;
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(B) the Company has caused there to be irrevocably deposited with the Trustee, or with the Paying Agent (or, with respect to Conversion Consideration, the Conversion Agent), in each case
for the benefit of the Holders, or has otherwise caused there to be delivered to the Holders, cash (or, with respect to Notes to be Converted, Conversion Consideration) sufficient to satisfy all amounts or other property due on all Notes then
outstanding (other than Notes replaced pursuant to Section 2.13);
(C) the Company has paid all other amounts payable by it under this Indenture; and
(D) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that the conditions precedent to the discharge of this Indenture have been
satisfied;
provided, however, that Article
10 and Section 11.01 will survive such discharge and, until no Notes remain outstanding, Section 2.15 and the obligations of the Trustee, the Paying
Agent and the Conversion Agent with respect to money or other property deposited with them will survive such discharge.
At the Company’s request, the Trustee will acknowledge the satisfaction and discharge of this Indenture.
Section 9.02. Repayment to Company.
Subject to applicable unclaimed property law, the Trustee, the Paying Agent and the Conversion Agent will promptly notify the Company if there exists (and, at the Company’s request, promptly
deliver to the Company) any cash, Conversion Consideration or other property held by any of them for payment or delivery on the Notes that remain unclaimed two (2) years after the date on which such payment or delivery was due. After such
delivery to the Company, the Trustee, the Paying Agent and the Conversion Agent will have no further liability to any Holder with respect to such cash, Conversion Consideration or other property, and Holders entitled to the payment or delivery of
such cash, Conversion Consideration or other property must look to the Company for payment as a general creditor of the Company.
Section 9.03. Reinstatement.
If the Trustee, the Paying Agent or the Conversion Agent is unable to apply any cash or other property deposited with it pursuant to Section 9.01 because
of any legal proceeding or any order or judgment of any court or other governmental authority that enjoins, restrains or otherwise prohibits such application, then the discharge of this Indenture pursuant to Section
9.01 will be rescinded; provided, however, that if the Company thereafter pays or delivers any cash or other property due on the Notes to the Holders
thereof, then the Company will be subrogated to the rights of such Holders to receive such cash or other property from the cash or other property, if any, held by the Trustee, the Paying Agent or the Conversion Agent, as applicable.
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Article 10. TRUSTEE
Section 10.01. Duties of the Trustee.
(A) If an Event of Default has occurred and is continuing, and a Responsible Officer of the Trustee has written notice or actual knowledge of the same, then, without limiting the
generality of Section 10.02(F), the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person’s own affairs.
(B) Except during the continuance of an Event of Default:
(i) the duties of the Trustee will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied covenants or obligations will be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may, without investigation, conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel that are provided to the Trustee and conform to the requirements of this Indenture; provided, however, that the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.
(C) The Trustee may not be relieved from liabilities for its negligence or willful misconduct, except that:
(i) this paragraph will not limit the effect of Section 10.01(B);
(ii) the Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 7.07.
(D) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability.
(E) The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds, except to the extent required by law.
(F) The Trustee will not be liable in its individual capacity for the obligations evidenced by the Notes.
(G) Each provision of this Indenture that in any way relates to the Trustee (including any provision that affects the liability of, or affords protection to, the Trustee) is subject to
this Section 10.01, regardless of whether such provision so expressly provides.
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Section 10.02. Rights of the Trustee.
(A) The Trustee may conclusively rely on any document that it believes to be genuine and signed or presented by the proper Person, and the Trustee need not investigate any fact or matter
stated in such document.
(B) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate, an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits
to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee may consult with counsel; and the written advice of such counsel, or any Opinion of Counsel, will constitute full and complete authorization of the
Trustee to take or omit to take any action in good faith in reliance thereon without liability.
(C) The Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any such agent appointed with due care.
(D) The Trustee will not be liable for any action it takes or omits to take in good faith and that it believes to be authorized or within the rights or powers vested in it by this
Indenture.
(E) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company will be sufficient if signed by an Officer of the Company.
(F) The Trustee need not exercise any rights or powers vested in it by this Indenture at the request or direction of any Holder unless such Holder has offered (and, if requested,
provided) the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense that it may incur in complying with such request or direction.
(G) The Trustee will not be responsible or liable for any punitive, special, indirect or consequential loss or damage (including lost profits), even if the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.
(H) The permissive rights of the Trustee set forth in this Indenture will not be construed as duties imposed on the Trustee.
(I) The Trustee will not be required to give any bond or surety in respect of the execution or performance of this Indenture or otherwise.
(J) Unless a Responsible Officer of the Trustee has received notice from the Company that Special Interest or Additional Interest is owing or accruing, on the Notes, the Trustee may
assume that no Special Interest or Additional Interest, as applicable, is payable or accruing.
(K) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and will be enforceable by, the Trustee in
each of its capacities under this Indenture, including as Note Agent.
(L) The Trustee will not be charged with knowledge of any document or agreement other than this Indenture and the Notes.
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(M) Neither the Trustee nor any Note Agent will have any responsibility or liability to any person for any action taken or not taken by, or any records or any other aspect of the
operations of, the Depositary (including the delivery of notices, or the making of payments, through the facilities of the Depositary) and may conclusively rely, without investigation, on any information provided by the Depositary.
Section 10.03. Individual Rights of the Trustee.
The Trustee, in its individual or any other capacity, may become the owner or pledgee of any Note and may otherwise deal with the Company or any of its Affiliates with the same rights that it
would have if it were not Trustee; provided, however, that if the Trustee acquires a “conflicting interest” (within the meaning of Section 310(b) of the Trust
Indenture Act), then it must eliminate such conflict within ninety (90) days or resign as Trustee. Each Note Agent will have the same rights and duties as the Trustee under this Section 10.03.
Section 10.04. Trustee’s Disclaimer.
The Trustee will not be (A) responsible for, and makes no representation as to, the validity or adequacy of this Indenture or the Notes; (B) accountable for the Company’s use of the proceeds from
the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture; (C) responsible for the use or application of any money received by any Paying Agent other than the Trustee; and (D) responsible for
any statement or recital in this Indenture, the Notes or any other document relating to the sale of the Notes or this Indenture, other than the Trustee’s certificate of authentication.
Section 10.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, then the Trustee will send Holders a notice of such Default or Event of
Default within ninety (90) days after it occurs or, if it is not actually known to a Responsible Officer of the Trustee at such time, promptly (and in any event within ten (10) Business Days) after it becomes actually known to a Responsible
Officer of the Trustee; provided, however, that, except in the case of a Default or Event of Default in the payment of the principal of, or Special and Additional
Interest, if any, on, any Note, or a Default or Event of Default in the payment or delivery of the consideration due upon Conversion, the Trustee may withhold such notice if and for so long as it in good faith determines that withholding such
notice is in the interests of the Holders. For the avoidance of doubt, the Trustee will not be required to deliver such notice at any time after such Default or Event of Default is cured or waived. The Trustee will not be deemed to have notice or
be charged with knowledge of any Default or Event of Default unless (A) written notice thereof has been received by a Responsible Officer; and (B) such notice references the Notes and this Indenture and states on its face that a Default or Event
of Default has occurred.
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Section 10.06. Compensation and Indemnity.
(A) The Company will, from time to time, pay the Trustee reasonable compensation for its acceptance of this Indenture and services under this Indenture as separately agreed to by the
Company and the Trustee. The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express trust. In addition to the compensation for the Trustee’s services, the Company will reimburse the Trustee promptly upon
request for all reasonable disbursements, advances and expenses incurred or made by it under this Indenture, including the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.
(B) The Company will indemnify the Trustee (in each of its capacities under this Indenture) and its directors, officers, employees and agents, in their capacities as such, against any and
all losses, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Company
(including this Section 10.06) and defending itself against any claim (whether asserted by the Company, any Holder or any other Person) or liability in connection with the exercise or performance of any of
its powers or duties under this Indenture, except to the extent any such loss, liability or expense is attributable (as determined by a final decision of a court of competent jurisdiction) to its negligence or willful misconduct. The Trustee will
promptly notify the Company of any claim for which it may seek indemnity, but the Trustee’s failure to so notify the Company will not relieve the Company of its obligations under this Section 10.06(B),
except to the extent the Company is materially prejudiced by such failure. The Company will defend such claim, and the Trustee will cooperate in such defense. If the Trustee is advised by counsel that it may have defenses available to it that are
in conflict with the defenses available to the Company, or that there is an actual or potential conflict of interest, then the Trustee may retain separate counsel, and the Company will pay the reasonable fees and expenses of such counsel
(including the reasonable fees and expenses of counsel to the Trustee incurred in evaluating whether such a conflict exists). The Company need not pay for any settlement of any such claim made without its consent, which consent will not be
unreasonably withheld.
(C) The obligations of the Company under this Section 10.06 will survive the resignation or removal of the Trustee and the discharge of this
Indenture.
(D) To secure the Company’s payment obligations in this Section 10.06, the Trustee will have a lien prior to the Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal of, or interest, if any, on, particular Notes, which lien will survive the discharge of this Indenture.
(E) If the Trustee incurs expenses or renders services after an Event of Default pursuant to clause (ix)
or (x) of Section 7.01(A) occurs, then such expenses and the compensation for such services (including the fees and expenses of its agents and counsel) are intended
to constitute expenses of administration under any Bankruptcy Law.
Section 10.07. Replacement of the Trustee.
(A) Notwithstanding anything to the contrary in this Section 10.07, a resignation or removal of the Trustee, and the appointment of a successor
Trustee, will become effective only upon such successor Trustee’s acceptance of appointment as provided in this Section 10.07.
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(B) The Trustee may resign at any time and be discharged from the trust created by this Indenture by so notifying the Company. The Holders of a majority in aggregate principal amount of
the Notes then outstanding may remove the Trustee by so notifying the Trustee and the Company in writing. The Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 10.09;
(ii) the Trustee is adjudged to be bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(iii) a custodian or public officer takes charge of the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(C) If the Trustee resigns or is removed, or if a vacancy exists in the office of the Trustee for any reason, then (i) the Company will promptly appoint a successor Trustee; and (ii) at
any time within one (1) year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the Notes then outstanding may appoint a successor Trustee to replace such successor Trustee appointed by the
Company.
(D) If a successor Trustee does not take office within sixty (60) days after the retiring Trustee resigns or is removed, then the retiring Trustee, the Company or the Holders of at least
ten percent (10%) in aggregate principal amount of the Notes then outstanding may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(E) If the Trustee, after written request by a Holder of at least six (6) months, fails to comply with Section 10.09, then such Holder may
petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(F) A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company, upon which notice the resignation or removal of the retiring
Trustee will become effective and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will send notice of its succession to Holders. The retiring Trustee will, upon payment
of all amounts due to it under this Indenture, promptly transfer all property held by it as Trustee to the successor Trustee, which property will, for the avoidance of doubt, be subject to the lien provided for in Section 10.06(D).
Section 10.08. Successor Trustee by Merger, Etc.
Any entity into which the Trustee may be merged or converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Trustee is a
party, or any entity succeeding to all or substantially all of the corporate trust business of the Trustee, will (without the execution or filing of any paper or any further act on the part of any of the parties to this Indenture) be the
successor of the Trustee under this Indenture, provided that such entity is otherwise qualified and eligible to act as such under this Article 10.
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Section 10.09. Eligibility; Disqualification.
There will at all times be a Trustee under this Indenture that is a corporation organized and doing business under the laws of the United States of America or of any state thereof, that is
authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $100.0 million as set forth in its most recent
published annual report of condition.
Article 11. MISCELLANEOUS
Section 11.01. Notices.
Any notice or communication by the Company or the Trustee to the other will be deemed to have been duly given if in writing and delivered in person or by first class mail (registered or
certified, return receipt requested), facsimile transmission, electronic transmission or other similar means of unsecured electronic communication or overnight air courier guaranteeing next day delivery, or to the other’s address, which initially
is as follows:
If to the Company:
DoorDash, Inc.
303 2nd Street, South Tower, 8th Floor
San Francisco, California 94107
Attention: ***
with a copy (which will not constitute notice) to:
Latham & Watkins LLP
555 Eleventh Street NW, Suite 1000
Washington, DC 20007
Attention: Jason M. Licht, Esq. and Christopher J. Clark, Esq.
If to the Trustee:
U.S. Bank Trust Company, National Association
633 West 5th Street, 24th Floor
Los Angeles, California 90071
Attention: ***
Notwithstanding anything to the contrary in the preceding paragraph, notices to the Trustee (other than a notice pursuant to Section 2.12) or any Note
Agent must be in writing and will be deemed to have been given upon actual receipt by the Trustee or such Note Agent, as applicable.
The Company or the Trustee, by notice to the other, may designate additional or different addresses (including facsimile numbers and electronic addresses) for subsequent notices or
communications.
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The Trustee will not have any duty to confirm that the person sending any notice, instruction or other communication by electronic transmission (including by e-mail, facsimile transmission, web
portal or other electronic methods) is, in fact, a person authorized to do so. Electronic signatures believed by the Trustee to comply with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten signatures and
digital signatures provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider acceptable to the Trustee) will be deemed original signatures for all purposes. Any person that uses electronic signatures or electronic methods to
send communications to the Trustee assumes all risks arising out of such use, including the risk of the Trustee acting on an unauthorized communication and the risk of interception or misuse by third parties. Notwithstanding anything to the
contrary in this paragraph, the Trustee may, in any instance and in its sole discretion, require that an original document bearing a manual signature be delivered to the Trustee in lieu of, or in addition to, any such electronic communication.
All notices and communications (other than those sent to Holders) will be deemed to have been duly given: (A) at the time delivered by hand, if personally delivered; (B) five (5) Business Days
after being deposited in the mail, postage prepaid, if mailed; (C) when receipt is acknowledged, if transmitted by facsimile, electronic transmission or other similar means of unsecured electronic communication; and (D) the next Business Day
after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
All notices or communications required to be made to a Holder pursuant to this Indenture must be made in writing and will be deemed to be duly sent or given in writing if mailed by first class
mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery, to its address shown on the Register; provided, however,
that a notice or communication to a Holder of a Global Note may, but need not, instead be sent pursuant to the Depositary Procedures (in which case, such notice will be deemed to be duly sent or given in writing). The failure to send a notice or
communication to a Holder, or any defect in such notice or communication, will not affect its sufficiency with respect to any other Holder.
If the Trustee is then acting as the Depositary’s custodian for the Notes, then, at the reasonable request of the Company to the Trustee, the Trustee will cause any notice prepared by the Company
to be sent to any Holder(s) pursuant to the Depositary Procedures, provided such request is evidenced in a Company Order delivered, together with the text of such notice, to the Trustee at least two (2)
Business Days before the date such notice is to be so sent. For the avoidance of doubt, such Company Order need not be accompanied by an Officer’s Certificate or Opinion of Counsel. The Trustee will not have any liability relating to the contents
of any notice that it sends to any Holder pursuant to any such Company Order.
If a notice or communication is mailed or sent in the manner provided above within the time prescribed, it will be deemed to have been duly given, whether or not the addressee receives it.
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Notwithstanding anything to the contrary in this Indenture or the Notes, (A) whenever any provision of this Indenture requires a party to send notice to another party, no such notice need be sent
if the sending party and the recipient are the same Person acting in different capacities (and, for purposes of the interpretation of this Indenture, such notice will be deemed to have been duly sent at the time otherwise required by this
Indenture); and (B) whenever any provision of this Indenture requires a party to send notice to more than one receiving party, and each receiving party is the same Person acting in different capacities, then only one such notice need be sent to
such Person.
Section 11.02. Delivery of Officer’s Certificate and Opinion of Counsel as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action under this Indenture (other than the initial authentication of Notes under this Indenture), the Company will
furnish to the Trustee:
(A) an Officer’s Certificate that complies with Section 11.03 and states that, in the opinion of the signatory thereto, all conditions precedent
and covenants, if any, provided for in this Indenture relating to such action have been satisfied; and
(B) an Opinion of Counsel that complies with Section 11.03 and states that, in the opinion of such counsel, all such conditions precedent and
covenants, if any, have been satisfied.
Section 11.03. Statements Required in Officer’s Certificate and Opinion of Counsel.
Each Officer’s Certificate (other than an Officer’s Certificate pursuant to Section 3.05) or Opinion of Counsel with respect to compliance with a covenant
or condition provided for in this Indenture will include:
(A) a statement that the signatory thereto has read such covenant or condition;
(B) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained therein are based;
(C) a statement that, in the opinion of such signatory, he, she or it has made such examination or investigation as is necessary to enable him, her or it to express an informed opinion as
to whether or not such covenant or condition has been satisfied; and
(D) a statement as to whether, in the opinion of such signatory, such covenant or condition has been satisfied.
Section 11.04. Rules by the Trustee, the Registrar, the Paying Agent and the Conversion Agent.
The Trustee may make reasonable rules for action by or at a meeting of Holders. Each of the Registrar, the Paying Agent and the Conversion Agent may make reasonable rules and set reasonable
requirements for its functions.
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Section 11.05. No Personal Liability of Directors, Officers, Employees and Stockholders.
No past, present or future director, officer, employee, incorporator or stockholder of the Company, as such, will have any liability for any obligations of the Company under this Indenture or the
Notes or for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting any Note, each Holder waives and releases all such liability. Such waiver and release are part of the consideration for the issuance
of the Notes.
Section 11.06. Governing Law; Waiver of Jury Trial.
THIS INDENTURE AND THE NOTES, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE OR THE NOTES, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. EACH OF THE COMPANY AND THE TRUSTEE AND THE HOLDERS (BY ACCEPTING THE NOTES) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED BY THIS INDENTURE OR THE NOTES.
Section 11.07. Submission to Jurisdiction.
Any legal suit, action or proceeding arising out of or based upon this Indenture or the transactions contemplated by this Indenture may be instituted in the federal courts of the United States of
America located in the City of New York or the courts of the State of New York, in each case located in the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the
non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth
in Section 11.01 will be effective service of process for any such suit, action or proceeding brought in any such court. Each of the Company, the Trustee and each Holder (by its acceptance of any Note)
irrevocably and unconditionally waives any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waives and agrees not to plead or claim any such suit, action or other
proceeding has been brought in an inconvenient forum.
Section 11.08. No Adverse Interpretation of Other Agreements.
Neither this Indenture nor the Notes may be used to interpret any other indenture, note, loan or debt agreement of the Company or its Subsidiaries or of any other Person, and no such indenture,
note, loan or debt agreement may be used to interpret this Indenture or the Notes.
Section 11.09. Successors.
All agreements of the Company in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors.
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Section 11.10. Force Majeure.
The Trustee and each Note Agent will not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility under this Indenture or the Notes by reason of any
occurrence beyond its control (including any act or provision of any present or future law or regulation or governmental authority, act of God or war, civil unrest, local or national disturbance or disaster, act of terrorism or unavailability of
the Federal Reserve Bank wire or facsimile or other wire or communication facility).
Section 11.11. U.S.A. PATRIOT Act.
The Company acknowledges that, in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee, like all financial institutions, 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 Company agrees to provide the Trustee with such information as
it may request to enable the Trustee to comply with the U.S.A. PATRIOT Act.
Section 11.12. Calculations.
Except as otherwise provided in this Indenture, the Company will be responsible for making all calculations called for under this Indenture or the Notes, including determinations of the Last
Reported Sale Price, the Daily Conversion Value, the Daily Cash Amount, the Daily Share Amount, the Daily VWAP, the Trading Price, accrued Special Interest and Additional Interest on the Notes, the Redemption Price (including Additional Interest,
Special Interest or Deferred Additional Interest), the Fundamental Change Repurchase Price, the Conversion Rate and the Stock Price.
The Company will make all calculations in good faith, and, absent manifest error, its calculations will be final and binding on all Holders. The Company will provide a schedule of its
calculations to the Trustee and the Conversion Agent, and each of the Trustee and the Conversion Agent may rely conclusively on the accuracy of the Company’s calculations without independent verification. The Trustee will promptly forward a copy
of each such schedule to a Holder upon its written request therefor. For the avoidance of doubt, the Trustee will not be obligated to make or confirm any calculations called for under this Indenture or the Notes.
Section 11.13. Severability.
If any provision of this Indenture or the Notes is invalid, illegal or unenforceable, then the validity, legality and enforceability of the remaining provisions of this Indenture or the Notes
will not in any way be affected or impaired thereby.
Section 11.14. Counterparts.
The parties may sign any number of copies of this Indenture. Each signed copy will be an original, and all of them together represent the same agreement. Delivery of an executed counterpart of
this Indenture by facsimile, electronically in portable document format or in any other format will be effective as delivery of a manually executed counterpart.
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Section 11.15. Table of Contents, Headings, Etc.
The table of contents and the headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and
will in no way modify or restrict any of the terms or provisions of this Indenture.
Section 11.16. Withholding Taxes.
Each Holder of a Note agrees, and each beneficial owner of an interest in a Global Note, by its acquisition of such interest, is deemed to agree, that if the Company or other applicable
withholding agent (including the Trustee) pays withholding taxes (including backup withholding) on behalf of such Holder or beneficial owner as a result of an adjustment or the non-occurrence of an adjustment to the Conversion Rate, then the
Company or such withholding agent, as applicable, may, at its option, withhold such taxes from interest, if any, on the Notes and payments upon Conversion, repurchase, Redemption or maturity of the Notes. In addition, if any withholding taxes
(including backup withholding) are paid on behalf of a Holder or beneficial owner, then those withholding taxes may be withheld from or set off against payments of cash or the delivery of shares of Class A Common Stock, if any, in respect of the
Notes (or, in some circumstances, any payments on shares of Class A Common Stock) or sales proceeds received by, or other funds or assets of, such Holder or beneficial owner.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
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IN WITNESS WHEREOF, the parties to this Indenture have caused this Indenture to be duly
executed as of the date first written above.
|
DoorDash, Inc.
|
||
|
By:
|
/s/ Ravi Inukonda
|
|
|
Name: Ravi Inukonda
|
||
|
Title: Chief Financial Officer
|
||
|
U.S. Bank Trust Company, National Association, as Trustee
|
||
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By:
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/s/ Bradley Scarbrough
|
|
|
Name: Bradley Scarbrough
|
||
|
Title: Vice President
|
||
FORM OF NOTE
[Insert Global Note Legend, if applicable]
[Insert Restricted Note Legend, if applicable]
[Insert Non-Affiliate Legend]
DOORDASH, INC.
0% Convertible Senior Note due 2030
|
CUSIP No.:
|
[___][Insert for a “restricted” CUSIP number: *]
|
Certificate No. [___]
|
|
ISIN No.:
|
[___][Insert for a “restricted” ISIN number: *]
|
DoorDash, Inc., a Delaware corporation, for value received, promises to pay to [Cede & Co.], or its registered assigns, the principal sum of [___] dollars ($[___]) [(as revised by the
attached Schedule of Exchanges of Interests in the Global Note)]† on May 15, 2030 and, to the extent applicable, to pay Special Interest and Additional Interest thereon, as provided in the Indenture referred to below, until the
principal and all accrued and unpaid interest are paid or duly provided for.
|
Interest Payment Dates:
|
May 15 and November 15 of each year.
|
|
Interest Record Dates:
|
May 1 and November 1.
|
Additional provisions of this Note are set forth on the other side of this Note.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
| * |
This Note will be deemed to be identified by CUSIP No. 25809K AB1 and ISIN No. US25809KAB17 from and after such time when the Company delivers, pursuant to Section 2.12 of the within-mentioned Indenture,
written notice to the Trustee of the deemed removal of the Restricted Note Legend affixed to this Note.
|
| † |
Insert bracketed language for Global Notes only.
|
A-1
IN WITNESS WHEREOF, DoorDash, Inc. has caused this instrument to be duly executed as of
the date set forth below.
|
DoorDash, Inc.
|
||||
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Date:
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By: |
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||
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Name:
|
||||
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Title:
|
||||
A-2
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
U.S. Bank Trust Company, National Association, as Trustee, certifies that this is one of the Notes referred to in the within-mentioned Indenture.
| Date: | By: | |||
| Authorized Signatory | ||||
A-3
DOORDASH, INC.
0% Convertible Senior Note due 2030
This Note is one of a duly authorized issue of notes of DoorDash, Inc., a Delaware corporation (the “Company”), designated as its 0% Convertible Senior
Notes due 2030 (the “Notes”), all issued or to be issued pursuant to an indenture, dated as of May 30, 2025 (as the same may be amended from time to time, the “Indenture”),
between the Company and U.S. Bank Trust Company, National Association, as trustee. Capitalized terms used in this Note without definition have the respective meanings ascribed to them in the Indenture.
The Indenture sets forth the rights and obligations of the Company, the Trustee and the Holders and the terms of the Notes. Notwithstanding anything to the contrary in this Note, to the extent
that any provision of this Note conflicts with the provisions of the Indenture, the provisions of the Indenture will control.
1. Interest. This Note will not bear regular interest, and the principal amount of this Note will not accrete. Special Interest and Additional
Interest will accrue on this Note in the circumstances, at the rates, and be payable on the dates, and in the manner, set forth in Sections 2.05, 3.04 and 7.03 of the Indenture.
2. Maturity. This Note will mature on May 15, 2030, unless earlier repurchased, redeemed or Converted.
3. Method of Payment. Cash amounts due on this Note will be paid in the manner set forth in Section 2.04 of the Indenture.
4. Persons Deemed Owners. The Holder of this Note will be treated as the owner of this Note for all purposes.
5. Denominations; Transfers and Exchanges. All Notes will be in registered form, without coupons, in principal amounts equal to any Authorized
Denominations. Subject to the terms of the Indenture, the Holder of this Note may transfer or exchange this Note by presenting it to the Registrar and delivering any required documentation or other materials.
6. Right of Holders to Require the Company to Repurchase Notes Upon a Fundamental Change. If a Fundamental Change (other than an Exempted
Fundamental Change) occurs, then each Holder will have the right to require the Company to repurchase such Holder’s Notes (or any portion thereof in an Authorized Denomination) for cash in the manner, and subject to the terms, set forth in
Section 4.02 of the Indenture.
7. Right of the Company to Redeem the Notes. The Company will have the right to redeem the Notes for cash in the manner, and subject to the
terms, set forth in Section 4.03 of the Indenture.
8. Conversion. The Holder of this Note may Convert this Note into Conversion Consideration in the manner, and subject to the terms, set forth in
Article 5 of the Indenture.
A-4
9. When the Company May Merge, Etc. Article 6 of the Indenture places limited restrictions on the Company’s ability to be a party to a Business
Combination Event.
10. Defaults and Remedies. If an Event of Default occurs, then the principal amount of, and all accrued and unpaid Special Interest and Additional
Interest, if any, on, all of the Notes then outstanding may (and, in certain circumstances, will automatically) become due and payable in the manner, and subject to the terms, set forth in Article 7 of the Indenture.
11. Amendments, Supplements and Waivers. The Company and the Trustee may amend or supplement the Indenture or the Notes or waive compliance with
any provision of the Indenture or the Notes in the manner, and subject to the terms, set forth in Section 7.05 and Article 8 of the Indenture.
12. No Personal Liability of Directors, Officers, Employees and Stockholders. No past, present or future director, officer, employee, incorporator
or stockholder of the Company, as such, will have any liability for any obligations of the Company under the Indenture or the Notes or for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting any
Note, each Holder waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes.
13. Authentication. No Note will be valid until it is authenticated by the Trustee. A Note will be deemed to be duly authenticated only when an
authorized signatory of the Trustee (or a duly appointed authenticating agent) manually signs the certificate of authentication of such Note.
14. Abbreviations. Customary abbreviations may be used in the name of a Holder or its assignee, such as TEN COM (tenants in common), TEN ENT
(tenants by the entireties), JT TEN (joint tenants with right of survivorship and not as tenants in common), CUST (custodian), and U/G/M/A (Uniform Gift to Minors Act).
15. Governing Law. THIS NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS NOTE, WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
* * *
To request a copy of the Indenture, which the Company will provide to any Holder at no charge, please send a written request to the following address:
DoorDash, Inc.
303 2nd Street, South Tower, 8th Floor
San Francisco, California 94107
Attention: Secretary
A-5
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
INITIAL PRINCIPAL AMOUNT OF THIS GLOBAL NOTE: $[___]
The following exchanges, transfers or cancellations of this Global Note have been made:
|
Date
|
Amount of Increase
(Decrease) in
Principal Amount of
this Global Note
|
Principal Amount of
this Global Note
After Such Increase
(Decrease)
|
Signature of
Authorized
Signatory of Trustee
|
||||
| * |
Insert for Global Notes only.
|
A-6
CONVERSION NOTICE
DOORDASH, INC.
0% Convertible Senior Notes due 2030
Subject to the terms of the Indenture, by executing and delivering this Conversion Notice, the undersigned Holder of the Note identified below directs the Company to Convert (check one):
| ☐ |
the entire principal amount of
|
| ☐ |
$ * aggregate principal amount of
|
the Note identified by CUSIP No. and Certificate No. .
The undersigned acknowledges that if the Conversion Date of a Note to be Converted is after an Interest Record Date and before the next Interest Payment Date, then such Note, when surrendered for Conversion, must,
in certain circumstances, be accompanied with an amount of cash equal to the Special Interest and Additional Interest, if any, that would have accrued on such Note to, but excluding, such Interest Payment Date.
| Date: | |||
| (Legal Name of Holder) | |||
| By: | ||
| Name: | ||
| Title: |
| Signature Guaranteed: | ||
|
Participant in a Recognized Signature
Guarantee Medallion Program
|
||
| By: | ||
| Authorized Signatory | ||
| * |
Must be an Authorized Denomination.
|
A-7
FUNDAMENTAL CHANGE REPURCHASE NOTICE
DOORDASH, INC.
0% Convertible Senior Notes due 2030
Subject to the terms of the Indenture, by executing and delivering this Fundamental Change Repurchase Notice, the undersigned Holder of the Note identified below is exercising its Fundamental Change Repurchase
Right with respect to (check one):
| ☐ |
the entire principal amount of
|
| ☐ |
$ * aggregate principal amount of
|
the Note identified by CUSIP No. and Certificate No. .
The undersigned acknowledges that this Note, duly endorsed for transfer, must be delivered to the Paying Agent before the Fundamental Change Repurchase Price will be paid.
| Date: | |||
| (Legal Name of Holder) | |||
| By: | ||
| Name: | ||
| Title: |
| Signature Guaranteed: | ||
|
Participant in a Recognized Signature
Guarantee Medallion Program
|
||
| By: | ||
| Authorized Signatory | ||
| * |
Must be an Authorized Denomination.
|
A-8
ASSIGNMENT FORM
DOORDASH, INC.
0% Convertible Senior Notes due 2030
Subject to the terms of the Indenture, the undersigned Holder of the Note identified below assigns (check one):
| ☐ |
the entire principal amount of
|
| ☐ |
$ * aggregate principal amount of
|
the Note identified by CUSIP No. and Certificate No. , and all rights thereunder, to:
|
Name:
|
||
|
Address:
|
||
|
Social security or tax id. #:
|
||
|
and irrevocably appoints:
|
||
as agent to transfer the within Note on the books of the Company. The agent may substitute another to act for him/her.
| Date: | |||
| (Legal Name of Holder) | |||
| By: | ||
| Name: | ||
| Title: |
| Signature Guaranteed: | ||
|
Participant in a Recognized Signature
Guarantee Medallion Program
|
||
| By: | ||
| Authorized Signatory | ||
| * |
Must be an Authorized Denomination.
|
A-9
TRANSFEROR ACKNOWLEDGMENT
If the within Note bears a Restricted Note Legend, the undersigned further certifies that (check one):
| 1. ☐ |
Such Transfer is being made to the Company or a Subsidiary of the Company.
|
| 2. ☐ |
Such Transfer is being made pursuant to, and in accordance with, a registration statement that is effective under the Securities Act at the time of the Transfer.
|
| 3. ☐ |
Such Transfer is being made pursuant to, and in accordance with, Rule 144A under the Securities Act, and, accordingly, the undersigned further certifies that the within Note is being transferred to a Person that the undersigned
reasonably believes is purchasing the within Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a Person reasonably
believed to be a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act in a transaction meeting the requirements of Rule 144A. If this item is checked, then the
transferee must complete and execute the acknowledgment contained on the next page.
|
| 4. ☐ |
Such Transfer is being made pursuant to, and in accordance with, any other available exemption from the registration requirements of the Securities Act (including, if available, the exemption provided by Rule 144 under the Securities
Act).
|
| Dated: | ||
| (Legal Name of Holder) | ||
| By: | ||
| Name: | ||
| Title: |
Signature Guaranteed:
|
(Participant in a Recognized Signature
Guarantee Medallion Program)
|
||
| By: | ||
| Authorized Signatory | ||
A-10
TRANSFEREE ACKNOWLEDGMENT
The undersigned represents that it is purchasing the within Note for its own account, or for one or more accounts with respect to which the undersigned exercises sole investment discretion, and that and the
undersigned and each such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act. The undersigned acknowledges that the transferor is relying, in transferring the within Note, on the exemption from
the registration and prospectus-delivery requirements of the Securities Act of 1933, as amended, provided by Rule 144A and that the undersigned has received such information regarding the Company as the undersigned has requested pursuant to Rule
144A.
| Dated: |
|
|
|
|
|
|
| (Name of Transferee) |
|
|
|
|
|
|
| By: | ||
|
|
Name: | |
|
|
Title: |
A-11
EXHIBIT B-1
FORM OF RESTRICTED NOTE LEGEND
THE OFFER AND SALE OF THIS NOTE AND THE SHARES OF CLASS A COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
| (1) |
REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH
ACCOUNT; AND
|
| (2) |
AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT ONLY:
|
| (A) |
TO THE COMPANY OR ANY SUBSIDIARY THEREOF;
|
| (B) |
PURSUANT TO A REGISTRATION STATEMENT THAT IS EFFECTIVE UNDER THE SECURITIES ACT;
|
| (C) |
TO A PERSON REASONABLY BELIEVED TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT;
|
| (D) |
PURSUANT TO RULE 144 UNDER THE SECURITIES ACT; OR
|
| (E) |
PURSUANT TO ANY OTHER EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
|
BEFORE THE REGISTRATION OF ANY SALE OR TRANSFER IN ACCORDANCE WITH (2)(C), (D) OR (E) ABOVE, THE COMPANY, THE TRUSTEE AND THE REGISTRAR RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATES OR OTHER
DOCUMENTATION OR EVIDENCE AS THEY MAY REASONABLY REQUIRE IN ORDER TO DETERMINE THAT THE PROPOSED SALE OR TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE
AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.*
| * |
This paragraph and the immediately preceding paragraph will be deemed to be removed from the face of this Note at such time when the Company delivers written notice to the Trustee of such deemed removal pursuant to Section 2.12 of the
within-mentioned Indenture.
|
B1-1
EXHIBIT B-2
FORM OF GLOBAL NOTE LEGEND
THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND
ANY AGENT THEREOF AS THE OWNER AND HOLDER OF THIS NOTE FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE WILL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE WILL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE 2 OF THE INDENTURE HEREINAFTER REFERRED TO.
B2-1
EXHIBIT B-3
FORM OF NON-AFFILIATE LEGEND
NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED) OF THE COMPANY, OR ANY PERSON OR ENTITY THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY
DURING THE IMMEDIATELY PRECEDING THREE MONTHS MAY PURCHASE OR OTHERWISE ACQUIRE THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN.
B3-1
Exhibit 10.1
[Insert Dealer Name]1
[Insert Dealer Address]
[__________], 2025
| To: |
DoorDash, Inc.
|
303 2nd Street, South Tower, 8th Floor,
San Francisco, California 94107
Attention: Ravi Inukonda, Chief Financial Officer
Telephone No.: (650) 487-3970
Re: [Base][Additional] Call Option Transaction
The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and conditions of the call option transaction entered into between [___] (“Dealer”) and DoorDash, Inc. (“Counterparty”) as of the Trade Date specified below (the “Transaction”). This letter agreement
constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below. Each party further agrees that this Confirmation together with the Agreement evidence a complete binding agreement between Counterparty and Dealer as to the
subject matter and terms of the Transaction to which this Confirmation relates, and shall supersede all prior or contemporaneous written or oral communications with respect thereto. This Confirmation shall serve as the final documentation for the
Transaction.
The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”), as published by the International Swaps
and Derivatives Association, Inc. (“ISDA”) are incorporated into this Confirmation. In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern.
Certain defined terms used herein are based on terms that are defined in the Offering Memorandum dated May [__], 2025 (the “Offering Memorandum”) relating to the [___]% Convertible Senior Notes due 2030 (as
originally issued by Counterparty, the “Convertible Notes” and each USD 1,000 principal amount of Convertible Notes, a “Convertible Note”) issued by Counterparty in an
aggregate initial principal amount of USD [__________] [as increased by [up to]2 an aggregate principal amount of USD [__________] [if and to the extent that]3[pursuant to the exercise by] 4 the Initial Purchasers (as defined herein) [exercise]5[of]6
their option to purchase additional Convertible Notes pursuant to the Purchase Agreement (as defined herein)] [as increased by an aggregate principal amount of USD [__________] in connection with the exercise by the Initial Purchasers (as defined
herein) of their option to purchase additional Convertible Notes pursuant to the Purchase Agreement (as defined herein)] pursuant to an Indenture [to be]7 dated May
[__], 2025 between Counterparty and U.S. Bank Trust Company, National Association, as trustee (the “Indenture”). In the event of any inconsistency between the terms defined in the Offering Memorandum, the
Indenture and this Confirmation, this Confirmation shall govern. The parties acknowledge that this Confirmation is entered into on the date hereof with the understanding that (i) definitions set forth in the Indenture which are also defined herein by
reference to the Indenture and (ii) sections of the Indenture that are referred to herein, in each case, will conform to the descriptions thereof in the Offering Memorandum. If any such definitions in the Indenture or any such sections of the
Indenture differ from the descriptions thereof in the Offering Memorandum, the descriptions thereof in the Offering Memorandum will govern for purposes of this Confirmation. The parties further acknowledge that the Indenture section numbers used
herein are based on the [draft of the Indenture last reviewed by Dealer as of the date of this Confirmation, and if any such section numbers are changed in the Indenture as executed, the parties will amend this Confirmation in good faith to preserve
the intent of the parties]8 [Indenture as executed]9. Subject to the foregoing,
references to the Indenture herein are references to the Indenture as in effect on the date of its execution, and if the Indenture is amended or supplemented following such date (other than any amendment or supplement pursuant to (x) Section
[8.01(I)]10 of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of the Convertible Notes in the Offering Memorandum
or (y) Section [5.09]11 of the Indenture, subject, in the case of this clause (y), to the second paragraph under “Method of Adjustment” in Section 3 hereof), any such
amendment or supplement will be disregarded for purposes of this Confirmation unless the parties agree otherwise in writing.
1 Include Dealer name, address and, if applicable, logo.
2 Include in the Base Call Option Confirmation.
3 Include in the Base Call Option Confirmation.
4 Include in the Additional Call Option Confirmation.
5 Include in the Base Call Option Confirmation.
6 Include in the Additional Call Option Confirmation.
7 Insert if Indenture is not completed at the time of the Confirmation.
8 Include in the Base Call Option Confirmation. Include in the Additional Call Option Confirmation
if it is executed before closing of the base deal.
9 Include in the Additional Call Option Confirmation, but only if the Additional Call Option
Confirmation is executed after closing of the base deal.
10 Include cross-reference to Indenture section permitting amendments without holder consent to conform the Indenture to the Description of Notes.
11 Include cross-reference to Indenture section governing common stock change events.
Each party is hereby advised, and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions and has taken other material
actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates on the terms and conditions set forth below.
| 1. |
This Confirmation evidences a complete and binding agreement between Dealer and Counterparty as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall supplement, form a part of,
and be subject to an agreement in the form of the 2002 ISDA Master Agreement (the “Agreement”) as if Dealer and Counterparty had executed an agreement in such form (but without any Schedule except for
(i) the election of the laws of the State of New York as the governing law (without reference to choice of law doctrine), (ii) in respect of Section 5(a)(vi) of the Agreement, the election that the “Cross Default” provisions shall apply to
Dealer with (a) a “Threshold Amount” with respect to Dealer of three percent of the shareholders’ equity of [Dealer][[Dealer Parent] (“Dealer Parent”)] as of
the Trade Date, (b) the deletion of the phrase “, or becoming capable at such time of being declared,” from clause (1) and (c) the following language added to the end thereof: “Notwithstanding the foregoing, a default under subsection (2)
hereof shall not constitute an Event of Default if (x) the default was caused solely by error or omission of an administrative or operational nature, (y) funds were available to enable the party to make the payment when due and (z) the
payment is made within two Local Business Days of such party’s receipt of written notice of its failure to pay.” and (iii) the modification that the term “Specified Indebtedness” shall have the meaning specified in Section 14 of the
Agreement, except that such term shall not include obligations in respect of deposits received in the ordinary course of a party’s banking business) on the Trade Date. In the event of any inconsistency between provisions of the Agreement and
this Confirmation, this Confirmation will prevail for the purpose of the Transaction to which this Confirmation relates. The parties hereby agree that no transaction other than the Transaction to which this Confirmation relates shall be
governed by the Agreement.
|
| 2. |
The terms of the particular Transaction to which this Confirmation relates are as follows:
|
|
General Terms.
|
|
|
Trade Date:
|
[___], 2025
|
|
Effective Date:
|
The closing date of the [initial]12 issuance of the Convertible Notes [issued pursuant to the option to purchase additional
Convertible Notes exercised on the date hereof]13
|
|
Option Style:
|
“Modified American”, as described under “Procedures for Exercise” below
|
12 Include in the Base Call Option Confirmation.
13 Include in the Additional Call Option Confirmation.
2
|
Option Type:
|
Call
|
|
Buyer:
|
Counterparty
|
|
Seller:
|
Dealer
|
|
Shares:
|
The Class A common stock of Counterparty, par value USD 0.00001 per share (Exchange symbol “DASH”).
|
|
Number of Options:
|
[____]14. For the avoidance of doubt, the Number of Options shall be reduced by any Options exercised by Counterparty. In no
event will the Number of Options be less than zero.
|
|
Applicable Percentage:
|
[____]%
|
|
Option Entitlement:
|
A number equal to the product of the Applicable Percentage and [____]15
|
|
Strike Price:
|
USD [____]
|
|
Premium:
|
USD [____]
|
|
Premium Payment Date:
|
May [__], 2025
|
|
Exchange:
|
The Nasdaq Global Select Market
|
|
Related Exchange(s):
|
All Exchanges
|
|
Excluded Provisions:
|
Section [5.06(A)]16 and Section [5.07]17 of the
Indenture.
|
|
Procedures for Exercise.
|
|
|
Conversion Date:
|
With respect to any conversion of a Convertible Note, the date on which the Holder (as such term is defined in the Indenture) of such Convertible Note satisfies all of the requirements for conversion thereof as
set forth in Section [5.02 of the Indenture]18; provided that if Counterparty has not delivered to Dealer a related
Notice of Exercise, then in no event shall a Conversion Date be deemed to occur hereunder (and no Option shall be exercised or deemed to be exercised hereunder) with respect to any surrender of a Convertible Note for conversion in respect of
which Counterparty has elected to designate a financial institution for exchange in lieu of conversion of such Convertible Note pursuant to Section [5.08]19 of
the Indenture. With the exception of Options exercised under “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date” below, Options may only be exercised hereunder on a Conversion Date in respect of the Convertible
Notes and only in an amount equal to the number of USD 1,000 principal amount of Convertible Notes converted on such Conversion Date.
|
14 For the Base Call Option Confirmation, this is equal to the number of Convertible Notes in
principal amount of $1,000 initially issued on the closing date for the Convertible Notes. For the Additional Call Option Confirmation, this is equal to the number of additional Convertible Notes in principal amount of $1,000.
15 Insert the initial Conversion Rate for the Convertible Notes.
16 Include cross-reference to Indenture section(s) containing discretionary adjustments to the Conversion Rate by Counterparty.
17 Include cross-reference to Indenture section(s) governing make-whole adjustments to the Conversion Rate.
18 Include cross-reference to Indenture section(s) describing the right to convert
19 Include cross-reference to section of the Indenture containing provisions for exchange in lieu of conversion.
3
|
Free Convertibility Date:
|
November 15, 202920
|
|
Expiration Time:
|
The Valuation Time
|
|
Expiration Date:
|
May 15, 203021, subject to earlier exercise.
|
|
Multiple Exercise:
|
Applicable, as described under “Automatic Exercise” and “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date” below.
|
|
Automatic Exercise:
|
Notwithstanding Section 3.4 of the Equity Definitions and subject to Section 9(i)(iii), on each Conversion Date, a number of Options equal to [(i)] the number of Convertible Notes in denominations of USD 1,000
as to which such Conversion Date has occurred [minus (ii) the number of Options that are or are deemed to be automatically exercised on such Conversion Date under the Base Call Option Transaction Confirmation letter agreement dated May [__],
2025 between Dealer and Counterparty (the “Base Call Option Confirmation”),]22 shall be deemed to be automatically
exercised; provided that such Options shall be exercised or deemed exercised only if Counterparty has provided a Notice of Exercise to Dealer in accordance with “Notice of Exercise” below.
|
|
Notwithstanding the foregoing, in no event shall the number of Options that are exercised or deemed exercised hereunder exceed the Number of Options.
|
|
|
Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date:
|
Notwithstanding anything herein or in Section 3.4 of the Equity Definitions to the contrary, unless Counterparty notifies Dealer in writing prior to 5:00 p.m. (New York City time) on the Scheduled Valid Day
immediately preceding the Expiration Date that it does not wish Automatic Exercise to occur with respect to any Remaining Repurchase Options (as defined below), a number of Options equal to the lesser of (a) the Number of Options (after
giving effect to the provisions opposite the caption “Automatic Exercise” above) as of 9:00 a.m. (New York City time) on the Expiration Date and (b) the Remaining Repurchase Options [minus the number of Remaining Options (as defined in the
Base Call Option Transaction Confirmation)]23 (such lesser number, the “Remaining Options”) will be deemed to be
automatically exercised as if (i) a number of Convertible Notes (in denominations of USD 1,000 principal amount) equal to such number of Remaining Options were converted with a “Conversion Date” (as defined in the Indenture) occurring on or
after the Free Convertibility Date and (ii) the relevant Settlement Method applied to such Convertible Notes; provided that no such automatic exercise pursuant to this paragraph will occur if the Relevant Price for each Valid Day during the
Settlement Averaging Period is less than or equal to the Strike Price. For the avoidance of doubt, no exercise pursuant to this “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date” shall be subject to the
proviso in the relevant Settlement Method referencing the “Applicable Limit.” “Remaining Repurchase Options” shall mean the excess of (I) the aggregate number of Convertible Notes (in denominations of
USD 1,000 principal amount) that were repurchased and cancelled under clause (y) of Section 9(i)(ii) (“Repurchase Events”) during the term of the Transaction over (II) the aggregate number of Repurchase
Options (as defined below) that were terminated hereunder relating to Repurchase Events during the term of the Transaction [plus the number of Repurchase Options (as defined in the Base Call Option Transaction Confirmation) terminated under
the Base Call Option Transaction Confirmation relating to Repurchase Events (as defined therein) during the term of the “Transaction” under the Base Call Option Transaction Confirmation]24. Counterparty shall notify Dealer in writing of the number of Remaining Repurchase Options before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the Expiration Date.
|
20 To match the free convertibility date specified in the Convertible Notes.
21 To match the Maturity Date of the Convertible Notes.
22 Include for Additional Call Option Confirmation only.
23 Insert for Additional Call Option Confirmation only.
24 Insert for Additional Call Option Confirmation only.
4
|
Notice of Exercise:
|
Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, but subject to “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date”, in
order to exercise any Options on any Conversion Date, Counterparty must notify Dealer in writing before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period
for the Options being exercised of (i) the number of such Options (and the number of USD 1,000 principal amount of Notes being converted on such Conversion Date), (ii) the scheduled first day of the Settlement Averaging Period (the “SAP Notice Deadline”) and the scheduled Settlement Date and (iii) if Counterparty elects a Settlement Method for such Options other than Net Share Settlement, such notice shall also include information
required pursuant to “Settlement Method Election” below; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given at any time
before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the Expiration Date (such time, together with the SAP Notice Deadline, the “Notice Deadline”) and need only specify
the information required in clause (i) above, and (B) if the Settlement Method for such Options is not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”)
in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clause (iii) above; provided further that, notwithstanding the foregoing, such notice (and
the related exercise of Options) shall be effective if given after the Notice Deadline but prior to 5:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Notice Deadline and, in respect of any Options in respect of
which such notice is delivered after the relevant Notice Deadline, the Calculation Agent shall have the right to adjust the amount of cash payable and/or the number of Shares deliverable by Dealer with respect to such Options in a
commercially reasonable manner as appropriate to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities (including the
unwinding of any hedge position) as a result of Dealer not having received such notice on or prior to the Notice Deadline (it being understood that the adjusted delivery obligation described in the preceding proviso can never be less than
zero and can never require any payment by Counterparty).
|
|
Valuation Time:
|
The close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its commercially
reasonable discretion.
|
|
Market Disruption Event:
|
Section 6.3(a) of the Equity Definitions is hereby replaced in its entirety by the following:
|
|
“‘Market Disruption Event’ means, with respect to any date, the occurrence or existence, during the one-half hour period ending at the scheduled close of trading on such date on the principal U.S. national or
regional securities exchange or other market on which the Shares are listed for trading or trade, of any material suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange
or otherwise) in the Shares or in any options contracts or futures contracts relating to the Shares.”
|
5
|
VWAP Market Disruption Event:
|
With respect to any date, (i) the failure by the principal U.S. national or regional securities exchange on which the Shares are then listed, or, if the Shares are not then listed on a U.S. national or regional
securities exchange, the principal other market on which the Shares are then traded, to open for trading during its regular trading session on such date; or (ii) the occurrence or existence, for more than one half hour period in the
aggregate, of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Shares or in any options contracts or futures contracts relating to the
Shares, and such suspension or limitation occurs or exists at any time before 1:00 p.m., New York City time, on such date.
|
|
Settlement Terms.
|
|
|
Settlement Method:
|
For any Option, Net Share Settlement; provided that Counterparty may elect Cash Settlement or Combination Settlement for such Option if Counterparty shall have notified Dealer of the Settlement Method in the
Notice of Exercise or Notice of Final Settlement Method, as applicable, for such Option in accordance with “Settlement Method Election” below; provided further that if Counterparty has not elected to settle all or any portion of its
conversion obligations in respect of the related Convertible Notes in excess of the principal amount of such Convertible Notes in cash pursuant to Section [5.03(B)(i)(2)]25 of the Indenture, then the relevant Settlement Method for such Option shall be Net Share Settlement. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section
10(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations thereunder, in respect of any election of a Settlement Method that is not Net Share
Settlement.
|
|
Settlement Method Election:
|
In order to elect a Settlement Method other than Net Share Settlement for any Option, the Notice of Exercise or Notice of Final Settlement Method, as applicable, shall contain:
|
| (i) | Counterparty’s election of such other Settlement Method for the related Convertible Notes which shall correspond to Counterparty’s election under the Indenture of whether it elects to settle its conversion obligations in respect of the related Convertible Notes in excess of the principal amount of the related Convertible Notes: | |
| (A) | in a combination of cash and Shares pursuant to [5.03(B)(i)(2)]26 of the Indenture with a “Specified Dollar Amount” (as defined in the Indenture) of at least USD 1,000, in which case such other Settlement Method shall be Combination Settlement; or | ||
| (B) |
entirely in cash pursuant to Section [5.03(B)(i)(1)]27 of the Indenture, in which case such other Settlement Method shall be Cash Settlement; and | ||
25 Include cross-reference to section of the Indenture containing provisions for combination settlement of the Convertible Notes.
26 Include cross-reference to section of the Indenture containing provisions for combination settlement of the Convertible Notes.
27 Include cross-reference to section of the Indenture containing provisions for cash settlement of the Convertible Notes.
6
|
(ii)
|
if such other Settlement Method for the related Convertible Notes is Combination Settlement, the “Specified Dollar Amount” (as defined in the Indenture). |
|
Net Share Settlement:
|
If Net Share Settlement is applicable to any Option exercised or deemed exercised hereunder, Dealer will deliver to Counterparty, on the relevant Settlement Date for each such Option, a number of Shares (the “Net Share Settlement Amount”) equal to the sum, for each Valid Day during the Settlement Averaging Period for each such Option, of (i)(a) the Daily Option Value for such Valid Day, divided by (b) the
Relevant Price on such Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period; provided that in no event shall the Net Share Settlement Amount for any Option exceed a number of Shares equal to the Applicable
Limit for such Option divided by the Applicable Limit Price on the Settlement Date for such Option.
|
|
Dealer will pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Net Share Settlement Amount valued at the Relevant Price for the last Valid Day of the Settlement Averaging
Period.
|
|
|
Combination Settlement:
|
If Combination Settlement is applicable to any Option exercised or deemed exercised hereunder, Dealer will pay or deliver, as the case may be, to Counterparty, on the relevant Settlement Date for each such
Option:
|
|
(i)
|
an amount of cash (the “Combination Settlement Cash Amount”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of (A) an amount (the “Daily Combination Settlement Cash Amount”) equal to the lesser of (1) the product of (x) the Applicable Percentage and (y) the Specified Dollar Amount minus USD 1,000 and (2) the Daily Option Value for such Valid Day, divided by (B) the number of Valid Days in the Settlement Averaging Period; provided that if the calculation in clause (A) above results in zero or a negative number for any Valid Day, the Daily Combination Settlement Cash Amount for such Valid Day shall be deemed to be zero; and | |
|
(ii)
|
a number of Shares (the “Combination Settlement Share Amount”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of a number of Shares for such Valid Day (the “Daily Combination Settlement Share Amount”) equal to (A) (1) the Daily Option Value on such Valid Day minus the Daily Combination Settlement Cash Amount for such Valid Day, divided by (2) the Relevant Price on such Valid Day, divided by (B) the number of Valid Days in the Settlement Averaging Period; provided that if the calculation in clause (A)(1) above results in zero or a negative number for any Valid Day, the Daily Combination Settlement Share Amount for such Valid Day shall be deemed to be zero; | |
|
provided that in no event shall the sum of (x) the Combination Settlement Cash Amount for any Option and (y) the Combination Settlement Share Amount for such Option multiplied by the Applicable Limit Price on
the Settlement Date for such Option exceed the Applicable Limit for such Option.
|
7
|
Dealer will pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Combination Settlement Share Amount valued at the Relevant Price for the last Valid Day of the Settlement
Averaging Period.
|
|
|
Cash Settlement:
|
If Cash Settlement is applicable to any Option exercised or deemed exercised hereunder, in lieu of Section 8.1 of the Equity Definitions, Dealer will pay to Counterparty, on the relevant Settlement Date for
each such Option, an amount of cash (the “Cash Settlement Amount”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of (i) the Daily Option Value for such
Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period; provided that in no event shall the Cash Settlement Amount for any Option exceed the Applicable Limit for such Option.
|
|
Daily Option Value:
|
For any Valid Day, an amount equal to (i) the Option Entitlement on such Valid Day, multiplied by (ii) the Relevant Price on such Valid Day less the Strike Price on such Valid Day; provided that if the
calculation contained in clause (ii) above results in a negative number, the Daily Option Value for such Valid Day shall be deemed to be zero. In no event will the Daily Option Value be less than zero.
|
|
Applicable Limit:
|
For any Option, an amount of cash equal to the Applicable Percentage multiplied by the excess of (i) the aggregate of (A) the amount of cash paid to the “Holder” (as defined in the Indenture) of the related
Convertible Note upon conversion of such Convertible Note and (B) the number of Shares, if any, delivered to the “Holder” (as defined in the Indenture) of the related Convertible Note upon conversion of such Convertible Note multiplied by the
Applicable Limit Price on the Settlement Date for such Option, over (ii) the Synthetic Instrument Adjusted Issue Price (determined by the Calculation Agent using the Synthetic Instrument AIP Table set forth in Section 9(i)(iii) as if the
Settlement Date for such Option were the Conversion Settlement Date).
|
|
Applicable Limit Price:
|
On any day, the opening price as displayed under the heading “Op” on Bloomberg page “DASH <equity>“ (or its equivalent successor if such page is not available).
|
|
Valid Day:
|
A day on which (i) there is no VWAP Market Disruption Event and (ii) trading in the Shares generally occurs on the principal U.S. national or regional securities exchange on which the Shares are then listed or,
if the Shares are not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Shares are then traded. If the Shares are not so listed or traded, then a “Valid Day” means a Business Day.
|
|
Scheduled Valid Day:
|
Any day that is scheduled to be a Valid Trading Day on the principal U.S. national or regional securities exchange on which the Shares are then listed or, if the Shares are not then listed on a U.S. national or
regional securities exchange, on the principal other market on which the Shares are then traded. If the Shares are not so listed or traded, a “Scheduled Valid Day” means a Business Day.
|
|
Valid Trading Day:
|
Any day on which (i) trading in the Shares generally occurs on the principal U.S. national or regional securities exchange on which the Shares are then listed or, if the Shares are not then listed on a U.S.
national or regional securities exchange, on the principal other market on which the Shares are then traded; and (ii) there is no Market Disruption Event. If the Shares not so listed or traded, then “Valid Trading Day” means a Business Day.
|
8
|
Business Day:
|
Any day other than a Saturday, a Sunday or any day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.
|
|
Relevant Price:
|
For any Valid Day, the per Share volume-weighted average price of the Shares as displayed under the heading “Bloomberg VWAP” on Bloomberg page “DASH <equity> AQR” (or if such page is not available, its
equivalent successor page) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Valid Day (or if such volume-weighted average price is unavailable at such
time, the market value of one Share on such Valid Day, as determined by the Calculation Agent in good faith and in a commercially reasonable manner using, if practicable, a volume-weighted average method). The Relevant Price will be
determined without regard to after-hours trading or any other trading outside of the regular trading session.
|
|
Settlement Averaging Period:
|
For any Option and regardless of the Settlement Method applicable to such Option:
|
|
(i)
|
if the related Conversion Date occurs prior to the Free Convertibility Date, the 20 consecutive Valid Day period beginning on, and including, the second Valid Day after such Conversion Date; or | |
|
(ii)
|
if the related Conversion Date occurs on or after the Free Convertibility Date, the 20 consecutive Valid Day period beginning on, and including, the 21st Scheduled Valid Day immediately preceding the Expiration Date. | |
|
Settlement Date:
|
For any Option, the second Business Day immediately following the last Valid Day of the Settlement Averaging Period for such Option.
|
|
Settlement Currency:
|
USD
|
|
Other Applicable Provisions:
|
The provisions of Sections 9.1(c), 9.8, 9.9 and 9.11 of the Equity Definitions will be applicable, except that all references in such provisions to “Physically‑settled” shall be read as references to “Share
Settled.” “Share Settled” in relation to any Option means that Net Share Settlement or Combination Settlement is applicable to that Option.
|
|
Representation and Agreement:
|
Notwithstanding anything to the contrary in Equity Definitions (including, but not limited to, Section 9.11 thereof), the parties acknowledge that (i) any Shares delivered to Counterparty may be, upon delivery,
subject to restrictions and limitations arising from Counterparty’s status as issuer of the Shares under applicable securities laws, (ii) Dealer may deliver any Shares required to be delivered hereunder in certificated form in lieu of
delivery through the Clearance System and (iii) any Shares delivered to Counterparty may be “restricted securities” (as defined in Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”)).
|
9
| 3. |
Additional Terms applicable to the Transaction.
|
|
Adjustments applicable to the Transaction:
|
|
|
Potential Adjustment Events:
|
Notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event” means an occurrence of any event or condition, as set forth in any Dilution Adjustment Provision, that would result in
an adjustment under the Indenture to the “Conversion Rate” or the composition of a “unit of Reference Property” or to any “Last Reported Sale Price,” “Daily VWAP,” “Daily Conversion Value,” “Daily Net Settlement Amount” or “Daily Settlement
Amount” (each as defined in the Indenture). For the avoidance of doubt, Dealer shall not have any delivery or payment obligation hereunder, and no adjustment shall be made to the terms of the Transaction, on account of (x) any distribution of
cash, property or securities by Counterparty to Holders (as such term is defined in the Indenture) of the Convertible Notes (upon conversion or otherwise) or (y) any other transaction in which Holders (as such term is defined in the
Indenture) of the Convertible Notes are entitled to participate, in each case, in lieu of an adjustment under the Indenture of the type referred to in the immediately preceding sentence (including, without limitation, pursuant to [proviso in the first paragraph of Section [5.05(A)(iii)(1)]28 of the Indenture or the proviso
in the first paragraph of Section [5.05(A)(iv)]]29 of the Indenture).
|
|
Method of Adjustment:
|
Calculation Agent Adjustment, which means that, notwithstanding Section 11.2(c) of the Equity Definitions, upon any Potential Adjustment Event, the Calculation Agent, in good faith and in a commercially
reasonable manner, shall make a corresponding and equivalent adjustment in respect of any adjustment under the Indenture to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable relevant to the
exercise, settlement or payment for the Transaction to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Potential Adjustment Event.
|
|
Notwithstanding the foregoing and “Consequences of Merger Events / Tender Offers” below:
|
|
|
(i)
|
if the Calculation Agent reasonably and in good faith determines that any adjustment to the Convertible Notes that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section [5.05(H)]30 of the Indenture, Section [5.09]31 of the Indenture or in connection with any proportional adjustment or the determination of the fair value of any securities, property, rights or other assets) is materially incorrect, then, in each such case, the Calculation Agent will determine the relevant adjustment to be made to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner; |
28 Include cross-reference to provision in the Indenture for pass-through of distributed property, at the same time as it is received by holders of the Shares, in
lieu of a Conversion Rate adjustment.
29 Include cross-reference to provision in the Indenture for pass-through of cash, at the same time as it is received by holders of the Shares, in lieu of a
Conversion Rate adjustment.
30 Include cross-reference to Indenture section providing for adjustments where a Conversion Rate adjustment occurs during a period over which Last Reported Sale
Prices, Daily VWAPs, Daily Conversion Values, Daily Cash Amount or Daily Share Amounts are calculated.
31 Include cross-reference to Indenture section relating to common stock change events.
10
|
(ii)
|
in connection with any Potential Adjustment Event as a result of an event or condition set forth in Section [5.05(A)(ii)]32 of the Indenture or Section [5.05(A)(iii)(1)]33 of the Indenture where, in either case, the period for determining “Y” (as such term is used in Section [5.05(A)(ii)]34 of the Indenture) or “SP0” (as such term is used in Section [5.05(A)(iii)(1)]35 of the Indenture), as the case may be, begins before Counterparty has publicly announced the event or condition giving rise to such Potential Adjustment Event, then the Calculation Agent shall, in good faith and in a commercially reasonable manner, have the right to adjust any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to reflect the costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its commercially reasonable hedging activities as a result of such event or condition not having been publicly announced prior to the beginning of such period; and | |
|
(iii)
|
if any Potential Adjustment Event is declared and (a) the event or condition giving rise to such Potential Adjustment Event is subsequently amended, modified, cancelled or abandoned, (b) the “Conversion Rate” (as defined in the Indenture) is otherwise not adjusted at the time or in the manner contemplated by the relevant Dilution Adjustment Provision based on such declaration or (c) the “Conversion Rate” (as defined in the Indenture) is adjusted as a result of such Potential Adjustment Event and subsequently re‑adjusted (each of clauses (a), (b) and (c), a “Potential Adjustment Event Change”) then, in each case, the Calculation Agent shall, in good faith and in a commercially reasonable manner, have the right to adjust any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to reflect the costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its commercially reasonable hedging activities as a result of such Potential Adjustment Event Change. | |
|
Dilution Adjustment Provisions:
|
Sections [5.05(A)(i), (ii), (iii), (iv) and (v)]36 and Section [5.05(H)]37 of the Indenture.
|
|
|
Extraordinary Events applicable to the Transaction:
|
||
|
Merger Events:
|
Applicable; provided that notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Common Stock Change Event” in
Section [5.09(A)]38 of the Indenture.
|
|
32 Include cross-reference to Indenture section providing for an adjustment to the Conversion Rate in connection with a below-market rights, options or warrants
offering.
33 Include cross-reference to Indenture section providing for an adjustment to the Conversion Rate in connection with distributions of distributed property.
34 Include cross-reference to Indenture section providing for an adjustment to the Conversion Rate in connection with a below-market rights, options or warrants
offering.
35 Include cross-reference to Indenture section providing for an adjustment to the Conversion Rate in connection with distributions of distributed property.
36 Include cross-references to Indenture sections containing anti-dilution adjustments to the Conversion Rate.
37 Include cross-reference to Indenture section providing for adjustments where a Conversion Rate adjustment occurs during a period over which Last Reported Sale
Prices, Daily VWAPs, Daily Conversion Values, Daily Cash Amount or Daily Share Amounts are calculated.
38 Include cross-reference to Indenture section describing consequences of common stock change events.
11
|
Tender Offers:
|
Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in Section [5.05(A)(v)]39 of the Indenture.
|
|
|
|
|
Consequences of Merger Events / Tender Offers:
|
Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender Offer that results in an adjustment under the Indenture, the Calculation Agent shall
make a corresponding and equivalent adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event), Strike Price, Number of Options, Option Entitlement and any other
variable relevant to the exercise, settlement or payment for the Transaction (as determined by the Calculation Agent acting in good faith and in a commercially reasonable manner by reference to the relevant provisions of the Indenture),
subject to the second paragraph under “Method of Adjustment”; provided, however, that such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to any Excluded Provision; provided further that,
notwithstanding the foregoing, if the Calculation Agent reasonably and in good faith determines that any adjustment to the Convertible Notes that involves an exercise of discretion by Counterparty or its board of directors (including, without
limitation, pursuant to Section [5.09(A)]40 of the Indenture) is materially incorrect, then, in each such case, the Calculation Agent will determine the relevant
adjustment to be made to any one or more of the nature of the Shares, Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable
manner; provided further that if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation
or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) Counterparty to the Transaction following such Merger Event or Tender Offer will not be a corporation organized under the laws of
the United States, any State thereof or the District of Columbia or will not be (x) the Issuer or (y) a wholly owned subsidiary of the Issuer that has become the obligor on the Convertible Notes and the contractual obligations of which,
including its obligations under the Convertible Notes, are fully and unconditionally guaranteed by the Issuer, in each case, following such Merger Event or Tender Offer, then Cancellation and Payment (Calculation Agent Determination) may
apply in Dealer’s commercially reasonable discretion.
|
|
|
|
|
Nationalization, Insolvency or Delisting:
|
Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is
located in the United States and the Shares are not immediately re‑listed, re‑traded or re‑quoted on any of the New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market (or their respective successors); if the
Shares are immediately re‑listed, re‑traded or re‑quoted on any of the New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market (or their respective successors), such exchange or quotation system shall thereafter
be deemed to be the Exchange.
|
|
|
|
|
Additional Disruption Events:
|
39 Include cross-reference to Indenture section describing consequences of tender offers.
40 Include cross-reference to Indenture section describing consequences of common stock change events.
12
|
Change in Law:
|
Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (a) adding in the last line after “on its tax position)” the following: “; provided that such party has undertaken,
and was unable after using commercially reasonable efforts, to utilize alternative Hedge Positions on commercially reasonable pricing terms, as long as (i) it would not violate any applicable law, rule, regulation or policy of such party to
hold, acquire or dispose of such alternative Hedge Positions and (ii) such party would not incur a materially increased cost in performing its obligations under such Transaction or entering into and performing such alternative Hedge Positions
(including, without limitation, due to any tax, duty, expense or fee, or any increase in tax liability, decrease in tax benefit or other adverse effect on its tax position)”, (b) replacing the parenthetical beginning after the word
“regulation” in the second line thereof with the words “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute),” and (c)
replacing the word “Shares” with the phrase “Hedge Positions”.
|
|
Failure to Deliver:
|
Applicable
|
|
Hedging Disruption:
|
Applicable; provided that:
|
|
|
(i)
|
Section 12.9(a)(v) of the Equity Definitions is hereby amended by (a) inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date” and (b) inserting the following two phrases at the end of such Section: |
| “For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, any such transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms.”; and | ||
|
|
|
|
|
|
(ii)
|
Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”. |
|
Increased Cost of Hedging:
|
Not Applicable
|
|
Hedging Party:
|
For all applicable Additional Disruption Events, Dealer.
|
|
Determining Party:
|
For all applicable Extraordinary Events, Dealer; provided that following any determination or calculation by the Determining Party hereunder, upon a written request from either party, the Determining Party will
promptly (but in any event within five Scheduled Trading Days) provide to such party a statement displaying in reasonable detail the basis for such determination or calculation (including, without limitation, any quotes, market data or
information from internal or external sources and any assumptions used in making such determination or calculation) as the case may be (it being understood that the Determining Party shall not be required to disclose any proprietary models or
information or confidential models or information used by it in connection with such determination or calculation, as the case may be). Whenever Determining Party is permitted to make a determination pursuant to
the terms of this Confirmation or the Equity Definitions, Determining Party shall make such determination in a commercially reasonable manner and by reference to the effect of such event on Dealer, assuming that Dealer maintains a
commercially reasonable hedge position.
|
13
|
Non‑Reliance:
|
Applicable
|
|
Agreements and Acknowledgments
|
|
|
Regarding Hedging Activities:
|
Applicable
|
|
Additional Acknowledgments:
|
Applicable
|
| 4. |
Calculation Agent.
|
Dealer, unless an Event of Default has occurred and is continuing pursuant to Section 5(a)(vii) of the Agreement with respect to which Dealer is the Defaulting Party, in which case Counterparty shall
have the right to designate a nationally recognized third‑party dealer in over‑the‑counter corporate equity derivatives to replace Dealer as Calculation Agent, and the parties shall work in good faith to execute any appropriate documentation required
by such replacement Calculation Agent. All calculations and determinations by the Calculation Agent shall be made in good faith and in a commercially reasonable manner. Following any determination or calculation by the Calculation Agent hereunder
(including for the avoidance for doubt, any determination by the Calculation Agent of any adjustment to the terms of the Transaction pursuant to the second paragraph under “Method of Adjustment” in Section 3 above), upon a written request from either
party, the Calculation Agent will promptly (but in any event within five Scheduled Trading Days) provide to such party a statement displaying in reasonable detail the basis for such determination or calculation (including, without limitation, any
quotations, market data or information from internal or external sources and any assumptions used in making such determination or calculation), as the case may be (it being understood that the Calculation Agent shall not be required to disclose any
proprietary models or information or confidential models or information used by it in connection with such determination or calculation, as the case may be).
| 5. |
Account Details.
|
(a) Account for payments to Counterparty:
To be provided by Counterparty.
Account for delivery of Shares to Counterparty:
To be provided by Counterparty.
(b) Account for payments to Dealer:
|
|
Bank: |
[___] |
|
|
|
|
[___] |
|
|
|
|
[___] |
|
| ABA#: |
[___] | ||
| SWIFT: | [___] | ||
| Acct Name: |
[___] | ||
| Acct No.: |
[___] |
Account for delivery of Shares from Dealer:
To be provided by Dealer.
14
| 6. |
Offices.
|
(a) The Office of Counterparty for the Transaction is: Inapplicable, Counterparty is not a Multibranch Party.
(b) The Office of Dealer for the Transaction is: [____]
[________]
[________]
[________]
| 7. |
Notices.
|
(a) Address for notices or communications to Counterparty:
DoorDash, Inc.
303 2nd Street, South Tower, 8th Floor
San Francisco, California 94107
Attn: Tia Sherringham, General Counsel and Secretary
Telephone No.: (650) 487-3970
Email: ***
With a copy to:
DoorDash, Inc.
303 2nd Street, South Tower, 8th Floor
San Francisco, California 94107
Attn: Ravi Inukonda, Chief Financial Officer
Telephone No.: (650) 487-3970
Email: ***
(b) Address for notices or communications to Dealer:
| To: | [___] | ||
| [___] | |||
| [___] | |||
| Attention: | [___] | ||
| Telephone: | [___] | ||
| Facsimile: | [___] | ||
| Email: |
[___] |
| With a copy to: | [___] | ||
| [___] | |||
| [___] | |||
| Attention: |
[___] | ||
| Telephone: | [___] | ||
| Facsimile: |
[___] | ||
| Email: |
[___] |
| 8. |
Representations and Warranties of Counterparty.
|
Counterparty hereby represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
15
(a) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect
of the Transaction; such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes
its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and
remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity)
and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of
Counterparty hereunder will conflict with or result in a breach of (i) the certificate of incorporation or by‑laws (or any equivalent documents) of Counterparty, (ii) any applicable law or regulation, or any order, writ, injunction or decree of any
court or governmental authority or agency, or (iii) any agreement or instrument filed as an exhibit to Counterparty’s Annual Report on Form 10‑K for the year ended December 31, 2024, as updated by any subsequent filings, to which Counterparty or
any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such
agreement or instrument, other than, in the case of clause (iii), any such conflict, breach, default or lien that would not have a material adverse effect on Counterparty’s ability to perform its obligations under the Transaction.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is
required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register
as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant,” as such term is defined in Section 1a(18) of the Commodity Exchange
Act, as amended.
(f) Counterparty is not, on the date hereof, in possession of any material non‑public information with respect to
Counterparty or the Shares.
(g) To the knowledge of Counterparty, no state or local (including any non‑U.S. jurisdiction’s) law, rule, regulation or
regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its
affiliates owning or holding (however defined) Shares in connection with the Transaction; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable
generally to the ownership of equity securities by Dealer or any of its affiliates solely as a result of it or any of such affiliates being financial institutions or broker-dealers.
(h) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all
transactions and investment strategies involving a security or securities, (B) will exercise independent judgment in evaluating the recommendations of any broker‑dealer or its associated persons, unless it has otherwise notified the broker‑dealer
in writing and (C) has total assets of at least USD 50 million.
(i) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of
Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B)
the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and
does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern, (E) Counterparty is not “insolvent” (as such term is defined under
Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase the number of Shares with respect to the Transaction in
compliance with the laws of the jurisdiction of Counterparty’s incorporation (including the adequate surplus and capital requirements of Sections 154 and 160 of the General Corporation Law of the State of Delaware).
16
(j) [Counterparty has received, read and understands the OTC Options Risk Disclosure Statement provided by Dealer and a
copy of the most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Standardized Options”.]41
| 9. |
Other Provisions.
|
(a) Opinions. Counterparty shall deliver to Dealer an opinion of counsel, dated as of the Premium Payment Date, with
respect to the matters set forth in Sections 8(a) through (d) of this Confirmation. Delivery of such opinion to Dealer shall be a condition precedent for the purpose of Section 2(a)(iii) of the Agreement with respect to each obligation of Dealer
under Section 2(a)(i) of the Agreement.
(b) Repurchase Notices. Counterparty shall, on any day on which Counterparty effects any repurchase of Shares or consummates
or otherwise executes or engages in any transaction or event (a “Conversion Rate Adjustment Event”) that would lead to an increase in the Conversion Rate (as such term is defined in the Indenture), promptly
give Dealer a written notice of such repurchase or Conversion Rate Adjustment Event (a “Repurchase Notice”) on such day if following such repurchase or Conversion Rate Adjustment Event, as the case may be,
the number of outstanding Shares as determined on such day is (i) less than [__]42million (in the case of the first such notice) or (ii) thereafter more than [__]43 million less than the number of Shares included in the immediately preceding Repurchase Notice. Counterparty agrees to indemnify and hold harmless Dealer and its
affiliates and their respective officers, directors, employees, affiliates, advisors, agents and controlling persons (each, an “Indemnified Person”) from and against any and all losses (including losses
relating to Dealer’s commercially reasonable hedging activities as a consequence of becoming, or of the risk of becoming, a Section 16 “insider”, including without limitation, any forbearance from hedging activities or cessation of hedging
activities and any losses in connection therewith with respect to the Transaction), claims, damages, judgments, liabilities and reasonable and documented out-of-pocket expenses (including reasonable attorney’s fees), joint or several, which an
Indemnified Person may become subject to, as a result of Counterparty’s failure to provide Dealer with a Repurchase Notice on the day and in the manner specified in this paragraph, and to reimburse, within 30 days, upon written request, each of
such Indemnified Persons for any reasonable and documented out-of-pocket legal or other expenses incurred in connection with investigating, preparing for, providing testimony or other evidence in connection with or defending any of the foregoing.
If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against the Indemnified Person as a result of Counterparty’s failure to provide Dealer with a Repurchase Notice
in accordance with this paragraph, such Indemnified Person shall promptly notify Counterparty in writing, and Counterparty, upon request of the Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent
the Indemnified Person and any others Counterparty may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding. Counterparty shall not be liable for any settlement of any proceeding
contemplated by this paragraph that is effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, Counterparty agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Counterparty shall not be liable for any losses, claims, damages or liabilities (or expenses relating thereto) of any Indemnified Person that result from the bad faith, gross negligence or willful
misconduct of such Indemnified Person. Counterparty shall not, without the prior written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding contemplated by this paragraph that is in respect of which any
Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement includes an unconditional release of such Indemnified Person from all liability on claims that are
the subject matter of such proceeding on terms reasonably satisfactory to such Indemnified Person. If the indemnification provided for in this paragraph is unavailable to an Indemnified Person or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then Counterparty hereunder, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities. The remedies provided for in this paragraph (b) are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity; provided that in no event shall
Counterparty be responsible hereunder for any fees and expenses of more than one counsel (in addition to any local counsel) for all Indemnified Persons in connection with any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand in the same jurisdiction. The indemnity and contribution agreements contained in this paragraph shall remain operative and in full force and effect regardless of the termination of the Transaction.
41 Insert for Dealers who are U.S. broker‑dealers.
42 Insert the number of Shares outstanding that would cause Dealer’s current position in the Warrants (including the number of Warrants if the greenshoe is exercised
in full, and any warrants under pre-existing warrant transactions with Company) to increase by 0.5%.
43 Insert the number of Shares that, if repurchased, would cause Dealer’s current position in the Warrants (including the number of Warrants if the greenshoe is
exercised in full, and any warrants under pre-existing warrant transactions with Company) to increase by a further 0.5% from the threshold for the first Repurchase Notice.
17
(c) Regulation M. Counterparty is not on the Trade Date engaged in a distribution, as such term is used in Regulation M
under the Exchange Act, of any securities of Counterparty, other than a distribution meeting the requirements of the exception set forth in Rules 101(b)(10) and 102(b)(7) of Regulation M. Counterparty shall not, until the second Scheduled Trading
Day immediately following the Effective Date, engage in any such distribution.
(d) No Manipulation. Counterparty is not entering into the Transaction to create
actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the
Shares) or otherwise in violation of the Exchange Act.
(e) Transfer or Assignment.
(i) Counterparty shall have the right to transfer or assign its rights and obligations hereunder with respect to all, but
not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but
not limited, to the following conditions:
(A) With respect to any Transfer Options, Counterparty shall not be released from its notice and
indemnification obligations pursuant to Section 9(b) or any obligations under Section 9(n) or 9(s) of this Confirmation;
(B) Any Transfer Options shall only be transferred or assigned to a third party that is a “United States
person” (as defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such
third party (including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer, will not expose Dealer to material risks under applicable securities laws)
and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Dealer will not, as a result of such transfer or assignment, be required to pay the transferee or
assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer or assignment;
(E) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of
such transfer or assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee
to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clause (D) will not occur upon or after such transfer or assignment; and
18
(G) Counterparty shall be responsible for all commercially reasonable costs and expenses, including
commercially reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without
Counterparty’s consent, to any affiliate of Dealer (1) that has a long‑term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed,
pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or its ultimate parent, or (B) with Counterparty’s prior written consent (such consent not to be unreasonably withheld) to any
other third party with a long‑term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer or assignment and (2) A‑ by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by Moody’s Investor Service, Inc. (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a
substitute rating agency mutually agreed by Counterparty and Dealer; provided that in the case of any such transfer or assignment under clause (A) or (B) above, (I) an Event of Default, Potential Event of Default or Termination Event will not occur
as a result of such transfer or assignment, (II) at the time of such transfer or assignment either (i) each of Dealer and the transferee or assignee in any such transfer or assignment is a “dealer in securities” within the meaning of Section
475(c)(1) of the Code or (ii) the transfer or assignment does not result in a deemed exchange by Counterparty within the meaning of Section 1001 of the Code; and (III) as a result of any such transfer or assignment (a) Counterparty will not
(including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Counterparty provided in connection with such transfer or assignment) receive from the transferee or assignee on any payment date or
delivery date (after accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement as well as any withholding or deduction) an amount or a number of Shares, as applicable, lower than the amount or the number of
Shares, as applicable, that Counterparty would have been entitled to receive from Dealer in the absence of such transfer or assignment (except to the extent such lower amount or number results from a change in law after the date of such transfer or
assignment), (b) Counterparty will not be required to pay such assignee or transferee on any payment date (taking into account any additional amount required to be paid by Counterparty under Section 2(d)(i)(4) of the Agreement) an amount greater
than the amount that Counterparty would have been required to pay to Dealer in the absence of such transfer or assignment, and (c) Dealer shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax
documentation as may be reasonably requested by Counterparty to permit Counterparty to determine that the results described in clause (III)(a) or (b) will not occur upon or after such transfer or assignment. If at any time at which (A) the Section
16 Percentage exceeds 8.0%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess
Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably
acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated
Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to
Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2)
Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(l) shall apply to any amount that is
payable by Dealer to Counterparty pursuant to this sentence as if Counterparty were not the Affected Party); provided that in calculating any amount due following such designation, Dealer shall act in good faith and in a commercially reasonable
manner and upon written request from Counterparty, Dealer will promptly provide to Counterparty a statement displaying in reasonable detail the basis for such calculation (it being understood that Dealer shall not be required to disclose any
proprietary models or information or confidential models or information used by it in connection with such calculation). The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage,
(A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group”
(within the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that for any
reason the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Shares outstanding on such day. The “Option Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Options and the Option Entitlement and (2) the
aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Shares outstanding. The “Share Amount” as of any day
is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under any law, rule, regulation, regulatory
order or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls,
holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The “Applicable Share Limit” means a
number of Shares equal to (A) the minimum number of Shares that could give rise to reporting or registration obligations or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or could result in an
adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion, minus (B) 1% of the number of Shares outstanding.
19
(iii) Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase,
sell, receive or deliver any Shares or other securities, or make or receive any payment in cash, to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities, or to make
or receive such payment in cash, and otherwise to perform Dealer’s obligations in respect of the Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty to the extent of any such
performance.
(f) Staggered Settlement. If upon advice of counsel with respect to applicable legal
and regulatory requirements, including any requirements relating to Dealer’s commercially reasonable hedging activities hereunder, Dealer reasonably determines that it would not be practicable or advisable to deliver, or to acquire Shares to
deliver, any or all of the Shares to be delivered by Dealer on any Settlement Date for the Transaction, Dealer may, by notice to Counterparty on or prior to any Settlement Date (a “Nominal Settlement Date”),
elect to deliver the Shares on two or more dates (each, a “Staggered Settlement Date”) as follows:
(i) in such notice, Dealer will specify to Counterparty the related Staggered Settlement Dates (each of which will occur on
or prior to such Nominal Settlement Date) and the number of Shares that it will deliver on each Staggered Settlement Date;
(ii) the aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all such Staggered Settlement
Dates will equal the number of Shares that Dealer would otherwise be required to deliver on such Nominal Settlement Date; and
(iii) if the Net Share Settlement or Combination Settlement terms set forth above were to apply to the Nominal Settlement
Date, then the Net Share Settlement or Combination Settlement terms, as the case may be, will apply on each Staggered Settlement Date, except that the number of Shares otherwise deliverable pursuant to such terms will be allocated among such
Staggered Settlement Dates as specified by Dealer in the notice referred to in clause (i) above.
(g) [Insert relevant Dealer agency language, if any.] [Reserved.]
(h) Adjustments. For the avoidance of doubt, whenever the Calculation Agent is called upon to make an adjustment pursuant
to the terms of this Confirmation or the Equity Definitions to take into account the effect of an event, the Calculation Agent shall make such adjustment by reference to the effect of such event on the Hedging Party, assuming that the Hedging Party
maintains a commercially reasonable hedge position.
(i) Additional Termination Events.
20
(i) Notwithstanding anything to the contrary in this Confirmation, if an event of default with respect to Counterparty
occurs under the terms of the Convertible Notes as set forth in Section [7.01] 44 of the Indenture that results in an acceleration of the Convertible Notes pursuant to
the terms of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected
Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement.
(ii) Promptly following (x) any repurchase and cancellation of Convertible Notes pursuant to [Section 4.02] 45 of the Indenture or Section [4.03]46 of the Indenture, Counterparty shall notify Dealer in writing of such repurchase and cancellation and the number of Convertible Notes so repurchased and cancelled or (y) any repurchase and cancellation of
Convertible Notes not described in clause (x) above (including, for the avoidance of doubt, any repurchase and cancellation of convertible notes as a result of any open market repurchase or any exchange of Convertible Notes for cash and/or other
securities or other considerations not under the terms of the Indenture) , Counterparty may notify Dealer in writing of such repurchase and cancellation and the number of Convertible Notes so repurchased and cancelled (any repurchase and
cancellation in (x) or (y) above, a “Repayment Event”, and any such notice in (x) or (y), a “Repayment Notice”). Any Repayment
Notice delivered pursuant to clause (y) of the immediately preceding sentence shall include a written representation and warranty by Counterparty that, as of the date of such Repayment Notice, Counterparty is not in possession of any material
non‑public information regarding Counterparty or the Shares. Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty of any Repayment Notice within the applicable time period set forth in the second
immediately preceding sentence shall constitute an Additional Termination Event as provided in this Section 9(i)(ii). Upon receipt of any such Repayment Notice and the related written representation and warranty, Dealer shall promptly designate an
Exchange Business Day following receipt of such Repayment Notice (which in no event shall be earlier than the related settlement date for such Convertible Notes and shall be on or as promptly as reasonably practicable after the later of (x) the
related repurchase settlement date for the relevant Repayment Event of Convertible Notes and (y) the date on which Counterparty provides the Repayment Notice described in this Section 9(i)(ii)) as an Early Termination Date with respect to the
portion of this Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the number of such Convertible Notes specified in such Repayment Notice [minus the number
of “Repurchase Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes]47 and (B) the Number of Options as of the
date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repurchase Options. Any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of
the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to this Transaction and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected
Party with respect to such Additional Termination Event, (3) the terminated portion of the Transaction were the sole Affected Transaction, (4) the relevant Repayment Event and any conversions, adjustments, agreements, payments, deliveries or
acquisitions by or on behalf of Counterparty leading thereto had not occurred, (5) no adjustments to the “Conversion Rate” (as defined in the Indenture) have occurred pursuant to any Excluded Provision and
(6) the corresponding Convertible Notes remain outstanding as if the circumstances related to such Repayment Event had not occurred; provided that such payment, in respect of a Repayment Event pursuant to [Section 4.02] 48 of the Indenture or Section [4.03]49 of the Indenture, shall not be greater than the product of (A) the number of Repurchase Options, multiplied by (B) the Applicable Percentage, multiplied by (C) the excess of (I) the amount paid by Counterparty per Convertible
Note pursuant to [Section 4.02] 50 of the Indenture or Section [4.03]51 of the Indenture, as the case may be, over (II) the Synthetic Instrument Adjusted Issue Price (determined by the Calculation Agent using the Synthetic Instrument AIP
Table set forth in Section 9(i)(iii) as if the date of payment for the Repayment Event were the Conversion Settlement Date). Counterparty acknowledges and agrees that if an Additional Termination Event has occurred under this Section 9(i)(ii),
then, subject to “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date”, any related Convertible Notes subject to a Repayment Event will be deemed to be cancelled and disregarded and no longer outstanding for all
purposes under this Section 9(i)(ii).
44 Include cross-reference to Indenture section describing events of default.
45 Include cross-reference to Indenture section governing repurchase upon a fundamental change.
46 Include cross-reference to Indenture section governing optional redemption.
47 Include for additional capped call.
48 Include cross-reference to Indenture section governing repurchase upon a fundamental change.
49 Include cross-reference to Indenture section governing optional redemption.
50 Include cross-reference to Indenture section governing repurchase upon a fundamental change.
51 Include cross-reference to Indenture section governing optional redemption.
21
(iii) Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty, within the
applicable time period set forth opposite “Notice of Exercise” in Section 2, of any Notice of Exercise in respect of Options that relate to Convertible Notes as to which additional Shares would be added to the “Conversion Rate” (as defined in the
Indenture) pursuant to Section [5.07(A)]52 of the Indenture in connection with a “Make‑Whole Fundamental Change” (as defined in the Indenture) (the “Make-Whole Notes”) shall constitute an Additional Termination Event as provided in this Section 9(i)(iii). Upon receipt of any such Notice of Exercise, Dealer shall designate an Exchange Business Day following
such Additional Termination Event (which Exchange Business Day shall in no event be earlier than the related settlement date for such Convertible Notes (such settlement date, the “Conversion Settlement Date”))
as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Make‑Whole Conversion Options”) equal to the lesser of (A) the number of Make Whole Notes
(in $1,000 denominations) specified in such Notice of Exercise [minus the number of “Make‑Whole Conversion Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes]53 and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Make‑Whole Conversion
Options. Any payment hereunder with respect to such termination (the “Make‑Whole Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been
designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Make‑Whole Conversion Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination
Event and (3) the terminated portion of the Transaction were the sole Affected Transaction (and, for the avoidance of doubt, in determining the amount payable pursuant to Section 6 of the Agreement, the Calculation Agent shall not take into account
any adjustments to the Option Entitlement that result from corresponding adjustments to the “Conversion Rate” (as defined in the Indenture) pursuant to Section [5.07(A)]54
of the Indenture); provided that the Make‑Whole Unwind Payment shall not be greater than the product of (A) the Applicable Percentage, multiplied by (B) the number of Make‑Whole Conversion Options,
multiplied by (C) the excess of (I) the sum of (i) the amount of cash paid to the “Holder” (as such term is defined in the Indenture) per such Make-Whole Note upon conversion of such Make-Whole Notes (including any cash payable as a result of an
adjustment to the Conversion Rate pursuant to Section [5.07(A)]55 of the Indenture) and (ii) the product of (x) the number of Shares (if any) per Make-Whole Note
delivered to the “Holder” (as such term is defined in the Indenture) of such Make-Whole Notes upon conversion of such Make-Whole Notes (including any Shares payable as a result of an adjustment to the Conversion Rate pursuant to Section [5.07(A)]56 of the Indenture), multiplied by (y) the Applicable Limit Price on the Conversion Settlement Date over (II) the Synthetic Instrument Adjusted Issue Price as of the
Conversion Settlement Date. “Synthetic Instrument Adjusted Issue Price” shall mean the amount determined by the Calculation Agent by reference to the table set forth below corresponding to the relevant
Conversion Settlement Date (the “Synthetic Instrument AIP Table”). If the relevant Conversion Settlement Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation
Agent by reference to the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices for the Conversion Settlement Dates immediately preceding and immediately following the relevant Conversion
Settlement Date.
52 Include cross-reference to Indenture section describing adjustments to the conversion rate in connection with a make-whole fundamental change.
53 Include for additional capped call.
54 Include cross-reference to Indenture section describing adjustments to the conversion rate in connection with a make-whole fundamental change.
55 Include cross-reference to Indenture section describing adjustments to the conversion rate in connection with a make-whole fundamental change.
56 Include cross-reference to Indenture section describing adjustments to the conversion rate in connection with a make-whole fundamental change.
22
|
Conversion Settlement Date
|
Synthetic Instrument
Adjusted Issue Price
|
|
|
May [ ● ], 2025
|
[___]
|
|
|
November 15, 2025
|
[___]
|
|
|
May 15, 2026
|
[___]
|
|
|
November 15, 2026
|
[___]
|
|
|
May 15, 2027
|
[___]
|
|
|
November 15, 2027
|
[___]
|
|
|
May 15, 2028
|
[___]
|
|
|
November 15, 2028
|
[___]
|
|
|
May 15, 2029
|
[___]
|
|
|
November 15, 2029
|
[___]
|
|
|
[May 15, 2030]57
|
[___]
|
Counterparty may irrevocably elect in the relevant Notice of Exercise to receive any Make‑Whole Unwind Payment in Shares, in which case, in lieu of making such Make‑Whole Unwind Payment as set forth above, Dealer shall
deliver to Counterparty, within a commercially reasonable period of time after such designation as determined by Dealer (taking into account existing liquidity conditions and Dealer’s hedging and hedge unwind activity or settlement activity in
connection with such delivery) a number of Shares equal to (A) such Make‑Whole Unwind Payment, divided by (B) a price per Share determined by the Calculation Agent in good faith and in a commercially reasonable manner; provided that, notwithstanding
anything to the contrary in Section 9(l), Counterparty may elect to receive a Make‑Whole Unwind Payment in Shares only if Counterparty represents and warrants to Dealer in writing on the date of such election that Counterparty is not in possession of
any material non‑public information regarding Counterparty or the Shares.
(j) Amendments to Equity Definitions. Section 12.9(b)(i) of the Equity Definitions
is hereby amended by (1) replacing “either party may elect” with “Dealer may elect or, solely in the case of a Change in Law pursuant to clause (Y) of Section 12.9(a)(ii) in connection with which Counterparty is the party that will incur the
materially increased cost that gives rise to such Change in Law, so long as Counterparty notifies Dealer of such occurrence within one Exchange Business Day and concurrently provides objective evidence of such occurrence to Dealer and delivers to
Dealer a written representation and warranty by Counterparty that, as of the date of such notice, Counterparty is not in possession of any material non‑public information regarding Counterparty or the Shares, Dealer shall elect” and (2) replacing
“notice to the other party” with “notice to Counterparty” in the first sentence of such section.
(k) No Setoff. Each party waives any and all rights it may have to set off
obligations arising under the Agreement and the Transaction against other obligations between the parties, whether arising under any other agreement, applicable law or otherwise.
(l) Alternative Calculations and Payment on Early Termination and on Certain Extraordinary
Events. If in respect of the Transaction, an amount is payable by Dealer to Counterparty (i) pursuant to Section 12.7 or Section 12.9 of the Equity Definitions or (ii) pursuant to Section 6(d)(ii) and 6(e) of the Agreement (any such
amount, a “Payment Obligation”), Dealer shall satisfy the Payment Obligation by the Share Termination Alternative (as defined below), unless (a) Counterparty gives irrevocable telephonic notice to Dealer,
confirmed in writing within one Scheduled Trading Day, no later than 12:00 p.m. (New York City time) on the Merger Date, the Tender Offer Date, the Announcement Date (in the case of Nationalization, Insolvency or Delisting), the Early Termination
Date or date of cancellation, as applicable, of its election that the Share Termination Alternative shall not apply, (b) Counterparty remakes the representation set forth in Section 8(f) as of the date of such election and (c) Dealer agrees, in its
sole discretion, to such election, in which case the provisions of Section 12.7 or Section 12.9 of the Equity Definitions, or the provisions of Section 6(d)(ii) and 6(e) of the Agreement, as the case may be, shall apply.
57 To be the maturity date for the Convertible Notes.
23
|
Share Termination Alternative:
|
If applicable, Dealer shall deliver to Counterparty the Share Termination Delivery Property on, or within a commercially reasonable period of time after, the date when the relevant Payment Obligation would
otherwise be due pursuant to Section 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) and 6(e) of the Agreement, as applicable, in satisfaction of such Payment Obligation in the manner reasonably requested by Counterparty free of
payment.
|
|
Share Termination Delivery Property:
|
A number of Share Termination Delivery Units, as calculated by the Calculation Agent, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall adjust the Share
Termination Delivery Property by replacing any fractional portion of a security therein with an amount of cash equal to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.
|
|
Share Termination Unit Price:
|
The value to Dealer of property contained in one Share Termination Delivery Unit, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent
to Dealer at the time of notification of the Payment Obligation. For the avoidance of doubt, the parties agree that in determining the Share Termination Unit Price the Calculation Agent may consider the purchase price paid in connection with
the purchase of Share Termination Delivery Property.
|
|
Share Termination Delivery Unit:
|
One Share or, if a Nationalization, Insolvency or Merger Event has occurred and a corresponding adjustment to the Transaction has been made, a unit consisting of the type and amount of such property received by
a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in such Nationalization, Insolvency or Merger Event, as determined by the Calculation Agent.
|
|
Failure to Deliver:
|
Applicable
|
|
Other applicable provisions:
|
If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9 and 9.11 (as modified above) of the Equity Definitions and the provisions set forth opposite the caption “Representation and
Agreement” in Section 2 will be applicable, except that all references in such provisions to “Physically‑settled” shall be read as references to “Share Termination Settled” and all references to “Shares” shall be read as references to “Share
Termination Delivery Units.” “Share Termination Settled” in relation to the Transaction means that the Share Termination Alternative is applicable to the Transaction.
|
(m) Waiver of Jury Trial. Each party waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction. Each party (i) certifies that no representative, agent or attorney of either party has represented, expressly or
otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party have been induced to enter into the Transaction, as applicable,
by, among other things, the mutual waivers and certifications provided herein.
24
(n) Registration. Counterparty hereby agrees that if, in the good faith reasonable
judgment of Dealer based on the advice of counsel, the Shares (“Hedge Shares”) acquired by Dealer for the purpose of hedging its obligations pursuant to the Transaction cannot be sold in the public market by
Dealer without registration under the Securities Act, Counterparty shall, at its election, either (i) in order to allow Dealer to sell the Hedge Shares in a registered offering, make available to Dealer an effective registration statement under the
Securities Act and enter into an agreement, in form and substance satisfactory to Dealer, substantially in the form of an underwriting agreement for a registered underwritten offering; provided, however, that if Dealer, in its sole reasonable discretion, is not satisfied with access to due diligence materials, the results of its due diligence investigation, or the procedures and documentation for the
registered offering referred to above, then clause (ii) or clause (iii) of this paragraph shall apply at the election of Counterparty, (ii) in order to allow Dealer to sell the Hedge Shares in a private placement, enter into a private placement
agreement substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance satisfactory to Dealer (in which case, the Calculation Agent shall make any adjustments to the
terms of the Transaction that are necessary, in its reasonable judgment, to compensate Dealer for any discount from the public market price of the Shares incurred on the sale of Hedge Shares in a private placement), or (iii) purchase the Hedge
Shares from Dealer at the then-current market price on such Exchange Business Days, and in the amounts and at such time(s), requested by Dealer.
(o) Tax Disclosure. Effective from the date of commencement of discussions
concerning the Transaction, Counterparty and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of
any kind (including opinions or other tax analyses) that are provided to Counterparty relating to such tax treatment and tax structure.
(p) Right to Extend. Dealer may postpone or add, in whole or in part, any Valid Day
or Valid Days during the Settlement Averaging Period or any other date of valuation, payment or delivery by Dealer, with respect to some or all of the Options hereunder, if Dealer reasonably determines, in its good faith, commercially reasonable
judgment (or, in the case of clause (ii) below only, based on the advice of counsel), that such postponement is reasonably necessary or appropriate (i) to preserve Dealer’s commercially reasonable hedging or hedge unwind activity hereunder in light
of existing liquidity conditions (but only if there is a material decrease in liquidity relative to Dealer’s expectation on the Trade Date, as determined by Dealer in its commercially reasonable discretion) or (ii) to enable Dealer to effect
transactions in Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if Dealer were Counterparty or an affiliated purchaser of Counterparty, be in compliance with applicable legal, regulatory
or self‑regulatory requirements, or with related policies and procedures applicable to Dealer; provided that no such Valid Day or other date of valuation, payment or delivery may be postponed or added more than 40 Valid Days after the final day in
the original Settlement Averaging Period or original other date of valuation, payment or delivery, as the case may be.
(q) Status of Claims in Bankruptcy. Dealer acknowledges and agrees that this
Confirmation is not intended to convey to Dealer rights against Counterparty with respect to the Transaction that are senior to the claims of common stockholders of Counterparty in any United States bankruptcy proceedings of Counterparty; provided
that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Counterparty of its obligations and agreements with respect to the Transaction other than during any such bankruptcy
proceedings; provided further that nothing herein shall limit or shall be deemed to limit Dealer’s rights in respect of any transactions other than the Transaction.
(r) Securities Contract; Swap Agreement. The parties hereto intend for (i) the
Transaction to be a “securities contract” and a “swap agreement” as defined in the Bankruptcy Code, and the parties hereto to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and
560 of the Bankruptcy Code, (ii) a party’s right to liquidate the Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the Agreement with respect to the other party to constitute a “contractual right” as
described in the Bankruptcy Code, and (iii) each payment and delivery of cash, securities or other property hereunder to constitute a “margin payment” or “settlement payment” and a “transfer” as defined in the Bankruptcy Code.
(s) Notice of Certain Other Events. Counterparty covenants and agrees that:
(i) promptly following the public announcement of the results of any election by the holders of Shares with respect to the
consideration due upon consummation of any Merger Event, Counterparty shall give Dealer written notice of the weighted average of the types and amounts of consideration that holders of Shares actually receive upon consummation of such Merger Event
(the date of such notification, the “Consideration Notification Date”); provided that in no event shall the Consideration Notification Date be later than the date on which such Merger Event is consummated;
and
25
(ii) (A) Counterparty shall give Dealer commercially reasonable advance (but in any event at least one Exchange Business
Day prior to the relevant Adjustment Notice Deadline) written notice of the section or sections of the Indenture and, if applicable, the formula therein, pursuant to which any adjustment will be made to the Convertible Notes in connection with any
Potential Adjustment Event (other than a Potential Adjustment in respect of the Dilution Adjustment Provision set forth in Sections [5.05(A)(ii)]58 or Section
[5.05(A)(iv)]59 of the Indenture), Merger Event or Tender Offer and (B) promptly following any such adjustment, Counterparty shall give Dealer written notice of the
details of such adjustment. The “Adjustment Notice Deadline” means (i) for any Potential Adjustment in respect of the Dilution Adjustment Provision set forth in Section [5.05(A)(i)]60 of the Indenture, the relevant “Ex‑Dividend Date” (as such term is defined in the Indenture), (ii) for any Potential Adjustment in respect of the Dilution Adjustment Provision in the first
formula set forth in [5.05(A)(iii)]61 of the Indenture, the first “Trading Day” (as such term is defined in the Indenture) of the period referred to in the definition
of “SP0” in such formula, (iii) for any Potential Adjustment in respect of the Dilution Adjustment Provision in the second formula set forth in [5.05(A)(iii)]62 of the Indenture, the first “Trading Day” (as such term is defined in the Indenture) of the “Spin-Off Valuation Period” (as such term is defined in the Indenture), (iv) for any Potential Adjustment in respect of the
Dilution Adjustment Provision set forth in Section [5.05(A)(v)]63 of the Indenture, the first Trading Day (as such term is defined in the Indenture) of the period
referred to in the definition of “SP’“ in the formula in such Section, and (v) for any Merger Event, the effective date of such Merger Event (or, if earlier, the first day of any valuation or similar period in respect of such Merger Event).
(t) Wall Street Transparency and Accountability Act. In connection with Section 739
of the Wall Street Transparency and Accountability Act of 2010 (“WSTAA”), the parties hereby agree that neither the enactment of WSTAA or any regulation under the WSTAA, nor any requirement under WSTAA or an
amendment made by WSTAA, shall limit or otherwise impair either party’s otherwise applicable rights to terminate, renegotiate, modify, amend or supplement this Confirmation or the Agreement, as applicable, arising from a termination event, force
majeure, illegality, increased costs, regulatory change or similar event under this Confirmation, the Equity Definitions incorporated herein, or the Agreement (including, but not limited to, rights arising from Change in Law, Hedging Disruption, an
Excess Ownership Position, or Illegality (as defined in the Agreement)).
(u) Agreements and Acknowledgements Regarding Hedging. Counterparty understands,
acknowledges and agrees that: (A) at any time on and prior to the Expiration Date, Dealer and its affiliates may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities
in order to adjust its hedge position with respect to the Transaction, (B) Dealer and its affiliates also may be active in the market for Shares other than in connection with hedging activities in relation to the Transaction, (C) Dealer shall make
its own determination as to whether, when or in what manner any hedging or market activities in securities of Issuer shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to the
Relevant Prices and (D) any market activities of Dealer and its affiliates with respect to Shares may affect the market price and volatility of Shares, as well as the Relevant Prices, each in a manner that may be adverse to Counterparty.
(v) Early Unwind. In the event the sale of the [“Firm”]64[“Additional”]65 Securities” (as defined in the Purchase Agreement (the “Purchase
Agreement”), dated as of May [__], 2025, among Counterparty and J.P. Morgan Securities LLC, as representative of the Initial Purchasers party thereto (the “Initial Purchasers”)) is not consummated
with the Initial Purchasers for any reason, or Counterparty fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 1:00 p.m. (New York City time) on the Premium Payment Date, or such later date as
agreed upon by the parties (the Premium Payment Date or such later date, the “Early Unwind Date”), the Transaction shall automatically terminate (the “Early Unwind”) on
the Early Unwind Date and (i) the
58 Include cross-reference to Indenture section describing adjustments upon distributions of common stock rights, options or warrants entitling holders to subscribe
for or purchase undervalued shares of common stock.
59 Include cross-reference to Indenture section describing distributions of cash.
60 Include cross-reference to Indenture section describing adjustments upon distributions of stock, share splits or share combinations.
61 Include cross-reference to Indenture section describing adjustments upon distributions of distributed property.
62 Include cross-reference to Indenture section describing adjustments upon spin-offs
63 Include cross-reference to Indenture section describing adjustments upon tender offer.
64 Include in the Base Call Option Confirmation.
65 Insert for Additional Call Option Confirmation only.
26
Transaction and all of the respective rights and obligations of Dealer and Counterparty under the Transaction shall be cancelled and terminated and (ii) each party shall be released
and discharged by the other party from and agrees not to make any claim against the other party with respect to any obligations or liabilities of the other party arising out of and to be performed in connection with the Transaction either prior to or
after the Early Unwind Date. Each of Dealer and Counterparty represents and acknowledges to the other that upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.
(w) Payment by Counterparty. In the event that, following payment of the Premium,
(i) an Early Termination Date occurs or is designated with respect to the Transaction as a result of a Termination Event or an Event of Default (other than an Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement) and, as a
result, Counterparty owes to Dealer an amount calculated under Section 6(e) of the Agreement, or (ii) Counterparty owes to Dealer, pursuant to Section 12.7 or Section 12.9 of the Equity Definitions, an amount calculated under Section 12.8 of the
Equity Definitions, such amount shall be deemed to be zero.
(x) [Conduct Rules. Each party acknowledges and agrees to be bound by the Conduct
Rules of the Financial Industry Regulatory Authority applicable to transactions in options, and further agrees not to violate the position and exercise limits set forth therein.]66[Reserved.]
(y) Financial Assistance. Counterparty acknowledges that the Transaction may
constitute a purchase of its equity securities. Counterparty further acknowledges that, pursuant to the provisions of the Coronavirus Aid, Relief and Economic Security Act (the “Cares Act”), the Counterparty
will be required to agree to certain time‑bound restrictions on its ability to purchase its equity securities if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under section 4003(b) of the Cares Act.
Counterparty further acknowledges that it may be required to agree to certain timebound restrictions on its ability to purchase its equity securities if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act)
under programs or facilities established by the Board of Governors of the Federal Reserve System for the purpose of providing liquidity to the financial system. Accordingly, Counterparty represents and warrants that neither it nor any of its
subsidiaries has applied, and throughout the term of the Transaction neither it nor any of its subsidiaries shall apply, for a loan, loan guarantee, direct loan (as that term is defined in the Cares Act) or other investment, or to receive any
financial assistance or relief (howsoever defined) under any program or facility established in any jurisdiction that (a) is established under applicable law, including without limitation the Cares Act and the Federal Reserve Act, as amended, and
(b) requires, as a condition of such loan, loan guarantee, direct loan (as that term is defined in the Cares Act), investment, financial assistance or relief, that the Counterparty agree, attest, certify or warrant that neither it nor any of its
subsidiaries has, as of the date specified in such condition, repurchased, or will repurchase, any equity security of Counterparty. Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or
indirectly, with funds received under or pursuant to any program or facility established in any jurisdiction, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (a) is established under applicable law (whether in
existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under such applicable law (or any regulation, guidance, interpretation
or other pronouncement of a governmental authority with jurisdiction for such program or facility) that such funds be used for specified or enumerated purposes that do not include the purchase of the Transaction (either by specific reference to the
Transaction or by general reference to transactions with the attributes of the Transaction in all relevant respects).
(z) Tax Matters.
(i) Payee Tax Representations. For the purpose of Section 3(f) of the Agreement, the parties
make the following representations, as applicable:
(A) Counterparty is a corporation created or organized under the laws of Delaware. It is “exempt” within the meaning of
Treasury Regulation section 1.6049-4(c) from information reporting on U.S. Internal Revenue Service Form 1099 and backup withholding.
66 Insert for Dealers who are U.S. broker‑dealers.
27
(B) [Dealer is a corporation for U.S. federal income tax purposes created or organized in the United States or under the laws
of the United States. It is “exempt” within the meaning of Treasury Regulation section 1.6049-4(c) from information reporting on U.S. Internal Revenue Service Form 1099 and backup withholding.]67
(ii) Tax Forms. For the purpose of Section 4(a)(i) of the Agreement:
(A) Counterparty shall provide Dealer with a valid and duly executed U.S. Internal Revenue Service Form W-9, or any successor
thereto, (i) on or before the date of execution of this Confirmation, (ii) promptly upon reasonable demand by Dealer and (iii) promptly upon learning that any such tax form previously provided by Counterparty has become obsolete or incorrect.
(B) [Dealer shall provide Counterparty with a valid and duly executed U.S. Internal Revenue Service Form W-9, or any
successor thereto, (i) on or before the date of execution of this Confirmation, (ii) promptly upon reasonable demand by Counterparty and (iii) promptly upon learning that any such tax form previously provided by Dealer has become obsolete or
incorrect.]68
(iii) Foreign Account Tax Compliance Act. “Indemnifiable Tax”, as defined in Section 14 of the
Agreement, shall not include any U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to
Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a “FATCA Withholding Tax”). For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement.
(iv) Section 871(m) Protocol. Dealer and Counterparty hereby agree that the Agreement shall be treated
as a Covered Master Agreement (as that term is defined in the 2015 Section 871(m) Protocol published by the International Swaps and Derivatives Association, Inc. on November 2, 2015, as may be amended or modified from time to time (the “2015 Section 871(m) Protocol”)) and the Agreement shall be deemed to have been amended in accordance with the modifications specified in the Attachment to the 2015 Section 871(m) Protocol. If there is any
inconsistency between this provision and a provision in any other agreement executed between the parties, this provision shall prevail unless such other agreement expressly overrides the provisions of the 871(m) Protocol.
(aa) [Insert relevant Dealer boilerplate, including QFC language, if any.]
67 update for specific Dealers.
68 update for specific Dealers.
28
Please confirm that the foregoing correctly sets forth the terms of the agreement between Dealer and Counterparty with respect to the Transaction, by executing this Confirmation or this page hereof
as evidence of agreement to such terms and providing the other information requested herein and returning an executed copy to Dealer.
|
Yours faithfully,
|
||||
|
[
|
] |
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By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
[[
|
] |
|
as Agent
|
|||
|
By:
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|||
|
Name:
|
|||
|
Title:
|
|||
[Signature Page to [Base][Additional] Bond Hedge Confirmation]
|
Accepted and confirmed
|
|
as of the Trade Date:
|
|
DOORDASH, INC.
|
|
By:
|
|
Authorized Signatory
|
|
Name:
|
[Signature Page to [Base][Additional] Bond Hedge Confirmation]
Exhibit 10.2
[Insert Dealer Name]
[Insert Dealer Address]
[_____], 2025
| To: |
DoorDash, Inc.
|
|
|
303 2nd Street, South Tower, 8th Floor,
|
|
|
San Francisco, California 94107
|
| Attention: | Ravi Inukonda, Chief Financial Officer |
| Telephone No.: | (650) 487-3970 |
Re: [Base][Additional] Warrants
The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and conditions of the Warrants issued by DoorDash, Inc. (“Company”) to [ ˜ ] (“Dealer”) as of the Trade Date
specified below (the “Transaction”). This letter agreement constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below. Each party further agrees that this Confirmation together
with the Agreement evidences a complete binding agreement between Company and Dealer as to the subject matter and terms of the Transaction to which this Confirmation relates, and shall supersede all prior or contemporaneous written or oral
communications with respect thereto. This Confirmation shall serve as the final documentation for the Transaction.
The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”), as published by the International Swaps
and Derivatives Association, Inc. (“ISDA”), are incorporated into this Confirmation. In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern.
Each party is hereby advised, and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions and has taken other material
actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates on the terms and conditions set forth below.
| 2. |
The Transaction is a Warrant Transaction, which shall be considered a Share Option Transaction for purposes of the Equity Definitions. The terms of the particular Transaction to which this Confirmation relates
are as follows:
|
|
General Terms.
|
|
|
Trade Date:
|
[___], 2025
|
|
Effective Date:
|
The second Exchange Business Day immediately prior to the Premium Payment Date
|
|
Warrants:
|
Equity call warrants, each giving the holder the right to purchase a number of Shares equal to the Warrant Entitlement at a price per Share equal to the Strike Price, subject to the terms
set forth under the caption “Settlement Terms” below. For the purposes of the Equity Definitions, each reference to a Warrant herein shall be deemed to be a reference to a Call Option.
|
|
Warrant Style:
|
European
|
|
Seller:
|
Company
|
|
Buyer:
|
Dealer
|
|
Shares:
|
The Class A common stock of Company, par value USD 0.00001 per share (Exchange symbol “DASH”).
|
|
Number of Warrants:
|
[___]. For the avoidance of doubt, the Number of Warrants shall be reduced by any Warrants exercised or deemed exercised hereunder. In no event will the Number of Warrants be less than
zero.
|
|
Warrant Entitlement:
|
One Share per Warrant
|
|
Strike Price:
|
USD [______]
|
|
Notwithstanding anything to the contrary in the Agreement, this Confirmation or the Equity Definitions, in no event shall the Strike Price be subject to adjustment to the extent that, after
giving effect to such adjustment, the Strike Price would be less than USD [ ● ], except for any adjustment pursuant to the terms of this Confirmation and the Equity Definitions in connection
with stock splits or similar changes to Company’s capitalization.
|
|
|
Premium:
|
USD [___]
|
|
Premium Payment Date:
|
[___], 2025
|
|
Exchange:
|
The Nasdaq Global Select Market
|
|
Related Exchange(s):
|
All Exchanges
|
|
Procedures for Exercise.
|
|
|
Expiration Time:
|
The Valuation Time
|
2
|
Expiration Dates:
|
Each Scheduled Trading Day during the period from, and including, the First Expiration Date to, but excluding, the 40th Scheduled Trading Day following the First Expiration Date shall be an “Expiration Date” for a number of Warrants equal to the Daily Number of Warrants on such date; provided
that, notwithstanding anything to the contrary in the Equity Definitions, if any such date is a Disrupted Day, the Calculation Agent shall, in good faith and in a commercially reasonable manner. (i) make adjustments, if applicable, to the
Daily Number of Warrants or shall reduce such Daily Number of Warrants to zero for which such day shall be an Expiration Date and shall designate a Scheduled Trading Day or a number of Scheduled Trading Days as the Expiration Date(s) for the
remaining Daily Number of Warrants or a portion thereof for the originally scheduled Expiration Date and (ii) if the Daily Number of Warrants for such Disrupted Day is not reduced to zero, determine the Settlement Price for such Disrupted Day
based on transactions in the Shares on such Disrupted Day taking into account the nature and duration of such Market Disruption Event on such day; and provided further that if such Expiration Date has
not occurred pursuant to this clause as of the eighth Scheduled Trading Day following the last scheduled Expiration Date under the Transaction, the Calculation Agent shall have the right to declare such Scheduled Trading Day to be the final
Expiration Date and, in such case, the Calculation Agent shall determine its good faith estimate of the fair market value for the Shares as of the Valuation Time on that eighth Scheduled Trading Day or on any subsequent Scheduled Trading Day,
as the Calculation Agent shall determine using commercially reasonable means. Any Scheduled Trading Day on which, as of the date hereof, the Exchange is scheduled to close prior to its normal close of trading shall be deemed not to be a
Scheduled Trading Day; if a closure of the Exchange prior to its normal close of trading on any Scheduled Trading Day is scheduled following the date hereof, then such Scheduled Trading Day shall be deemed to be a Disrupted Day in full.
|
|
First Expiration Date:
|
[August 15, 2030]1 (or if such day is not a Scheduled Trading Day, the next following Scheduled Trading
Day), subject to “Market Disruption Event” below.
|
|
Daily Number of Warrants:
|
For any Expiration Date, the Number of Warrants that have not expired or been exercised as of such day, divided by the remaining number of Expiration Dates (including such day), rounded
down to the nearest whole number, subject to adjustment pursuant to the provisos to the provision opposite the caption “Expiration Dates” above.
|
|
Automatic Exercise:
|
Applicable; and means that for each Expiration Date, a number of Warrants equal to the Daily Number of Warrants for such Expiration Date will be deemed to be automatically exercised at the
Expiration Time on such Expiration Date.
|
|
Market Disruption Event:
|
Section 6.3(a) of the Equity Definitions is hereby amended by replacing clauses (ii) and (iii) in their entirety with “(ii) an Exchange Disruption, (iii) an Early Closure or (iv) a
Regulatory Disruption, in each case, that the Calculation Agent determines in its commercially reasonable discretion is material.”
|
|
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the words “Scheduled Closing Time” in the fourth line thereof.
|
|
|
Regulatory Disruption:
|
Any event that Dealer, in its good faith, commercially reasonable discretion, determines makes it appropriate with regard to any legal, regulatory or self-regulatory requirements or related
policies and procedures, for Dealer to refrain from or decrease any market activity in connection with the Transaction. Dealer shall notify Company as soon as reasonably practicable that a Regulatory Disruption has occurred and the Expiration
Dates affected by it, in which case, subject to Section 6.3(a) of the Equity Definitions, each such scheduled Expiration Date shall be deemed to be a Disrupted Day in full.
|
3
|
Valuation Terms.
|
|
|
Valuation Time:
|
Scheduled Closing Time; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its reasonable discretion.
|
|
Valuation Date:
|
Each Exercise Date
|
|
Settlement Terms.
|
|
|
Settlement Method Election:
|
Applicable; provided that (i) references to “Physical Settlement” in Section 7.1 of the Equity Definitions shall be replaced by references to “Net Share Settlement”; (ii) Company may elect
Cash Settlement only if Company represents and warrants to Dealer in writing on the date of such election that (A) Company is not in possession of any material non-public information regarding Company or the Shares, (B) Company is electing
Cash Settlement in good faith and not as part of a plan or scheme to evade compliance with the federal securities laws, and (C) the assets of Company at their fair valuation exceed the liabilities of Company (including contingent
liabilities), and Company has the ability to pay its debts and obligations as such debts mature; and (iii) the same election of settlement method shall apply to all Expiration Dates hereunder.
|
|
Electing Party:
|
Company
|
|
Settlement Method Election Date:
|
The third Scheduled Trading Day immediately preceding the scheduled First Expiration Date.
|
|
Default Settlement Method:
|
Net Share Settlement
|
|
Net Share Settlement:
|
If Net Share Settlement is applicable, then on the relevant Settlement Date, Company shall deliver to Dealer a number of Shares equal to the Share Delivery Quantity for such Settlement Date
to the account specified herein free of payment through the Clearance System and Company shall pay to Dealer any Fractional Share Amount. Dealer shall be treated as the holder of record of such Shares at the time of delivery of such Shares
or, if earlier, at 5:00 p.m. (New York City time) on such Settlement Date.
|
|
Cash Settlement:
|
If Cash Settlement is applicable, on the relevant Settlement Date, Company shall pay to Dealer an amount of cash in USD equal to the Net Share Settlement Amount for such Settlement Date.
|
|
Share Delivery Quantity:
|
For any Settlement Date, a number of Shares, as calculated by the Calculation Agent, equal to the Net Share Settlement Amount for such Settlement Date divided by the Settlement Price on the
Valuation Date for such Settlement Date, rounded down to the nearest whole number.
|
|
Section 9.7 of the Equity Definitions is hereby amended by (i) replacing the words “Number of Shares to be Delivered” with the words “Share Delivery Quantity” in the second and third lines
thereof and (ii) deleting the parenthetical in clause (a) thereof.
|
|
|
Net Share Settlement Amount:
|
For any Settlement Date, an amount equal to the product of (i) the number of Warrants exercised or deemed exercised on the relevant Exercise Date, (ii) the Strike Price Differential for the
relevant Valuation Date and (iii) the Warrant Entitlement.
|
4
|
Settlement Price:
|
For any Valuation Date, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “DASH <equity> AQR” (or any successor thereto) in
respect of the period from the scheduled opening time of the Exchange to the Scheduled Closing Time on such Valuation Date (or if such volume-weighted average price is unavailable, the market value of one Share on such Valuation Date, as
determined by the Calculation Agent in good faith and in a commercially reasonable manner). Notwithstanding the foregoing, if (i) any Expiration Date is a Disrupted Day and (ii) the Calculation Agent determines in good faith that such
Expiration Date shall be an Expiration Date for fewer than the otherwise applicable Daily Number of Warrants, as described above, then the Settlement Price for the relevant Valuation Date shall be the volume-weighted average price per Share
on such Valuation Date on the Exchange, as determined by the Calculation Agent in a commercially reasonable manner based on such sources as it deems appropriate using a volume-weighted methodology, for the portion of such Valuation Date for
which the Calculation Agent determines there is no Market Disruption Event.
|
|
Settlement Dates:
|
As determined pursuant to Section 9.4 of the Equity Definitions, subject to Section 9(l)(i) hereof; provided that Section 9.4 of the Equity
Definitions is hereby amended by (i) inserting the words “or cash” immediately following the word “Shares” in the first line thereof and (ii) inserting the words “for the Shares” immediately following the words “Settlement Cycle” in the
second line thereof.
|
|
Other Applicable Provisions:
|
If Net Share Settlement is applicable, the provisions of Sections 9.1(c), 9.8, 9.9, 9.11 and 9.12 of the Equity Definitions will be applicable; except that all references in such provisions
to “Physically-settled” shall be read as references to “Net Share Settled.” “Net Share Settled” in relation to any Warrant means that Net Share Settlement is applicable to that Warrant.
|
|
Representation and Agreement:
|
Notwithstanding Section 9.11 of the Equity Definitions, the parties acknowledge that any Shares delivered to Dealer may be, upon delivery, subject to restrictions and limitations arising
from Company’s status as issuer of the Shares under applicable securities laws, except as described in Section 9(n) hereof.
|
| 3. |
Additional Terms applicable to the Transaction.
|
|
Adjustments applicable to the Transaction:
|
5
|
Method of Adjustment:
|
Calculation Agent Adjustment. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may, in its good faith and commercially reasonable
discretion, make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and the Warrant Entitlement. Notwithstanding the foregoing, (i) any cash dividends or distributions on the
Shares, whether or not extraordinary, shall be governed by Section 9(f) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions and (ii) the parties agree that (x) open market Share repurchases at prevailing
market prices or (y) accelerated share repurchases, forward contracts or similar transactions (at, or at a commercially reasonable adjustment in relation to, prevailing market prices) that are entered into in accordance with customary, arm’s
length terms for transactions of such type to repurchase the Shares (and, in the case of this clause (y), through a nationally recognized financial institution), shall not be considered a Potential Adjustment Event as long as the aggregate
number of Shares repurchased during the term of the Transaction pursuant to all such transactions described in clauses (x) and (y) would not exceed 25% of the greater of (1) the number of Shares outstanding as of the Trade Date, as determined
by the Calculation Agent in a commercially reasonable manner, and (2) the number of Shares outstanding as of the end of the Issuer’s most recently completed fiscal year, as determined and as adjusted by the Calculation Agent in a commercially
reasonable manner to account for any subdivision or combination with respect to the Shares.
|
|
Extraordinary Events applicable to the Transaction:
|
|
|
New Shares:
|
Section 12.1(i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it
with the phrase “publicly quoted, traded or listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market (or their
respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia that
either (1) becomes the Company under the Transaction following such Merger Event or Tender Offer or (2) wholly owns the Company under the Transaction following such Merger Event or Tender Offer (which Company is an entity or person that is
organized under the laws of the United States, any State thereof or the District of Columbia) and fully and unconditionally guarantees the obligations of Company under the Transaction”.
|
|
Consequence of Merger Events:
|
|
|
Merger Event:
|
Applicable; provided that if an event occurs that would otherwise constitute both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under
Section 9(i)(ii)(B) of this Confirmation, the provisions of Section 12.2 of the Equity Definitions will apply.
|
|
Share-for-Share:
|
Modified Calculation Agent Adjustment
|
|
Share-for-Other:
|
Cancellation and Payment (Calculation Agent Determination)
|
|
Share-for-Combined:
|
Component Adjustment (Calculation Agent Determination)
|
|
Consequence of Tender Offers:
|
|
|
Tender Offer:
|
Applicable; provided that Section 12.1(d) of the Equity Definitions is hereby amended by (i) inserting the word “similar” immediately prior to the word “event” in the second line thereof
and (ii) replacing “10%” with “20%” in the third line thereof; and provided further that if an event occurs that would otherwise constitute both a Tender Offer under Section 12.1(d) of the Equity
Definitions and an Additional Termination Event under Section 9(i)(ii)(A) of this Confirmation, the provisions of Section 12.3 of the Equity Definitions will apply.
|
6
7
8
|
“For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And,
for the further avoidance of doubt, any such transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms.”; and
|
|
(ii) Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the
third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.
|
|
|
Increased Cost of Hedging:
|
Not Applicable
|
|
Loss of Stock Borrow:
|
Applicable
|
|
Maximum Stock Loan Rate:
|
200 basis points
|
|
Increased Cost of Stock Borrow:
|
Applicable
|
|
Initial Stock Loan Rate:
|
25 basis points.
|
|
Hedging Party:
|
For all applicable Additional Disruption Events, Dealer.
|
|
Determining Party:
|
For all applicable Extraordinary Events, Dealer; provided that following any determination or calculation by the Determining Party hereunder, upon a written request from either party, the
Determining Party will promptly (but in any event within five Scheduled Trading Days) provide to such party a statement displaying in reasonable detail the basis for such determination or calculation (including, without limitation, any
quotes, market data or information from internal or external sources and any assumptions used in making such determination or calculation) as the case may be (it being understood that the Determining Party shall not be required to disclose
any proprietary models or information or confidential models or information used by it in connection with such determination or calculation, as the case may be).
|
|
Non-Reliance:
|
Applicable
|
|
Agreements and Acknowledgments
|
|
|
Regarding Hedging Activities:
|
Applicable
|
|
Additional Acknowledgments:
|
Applicable
|
| 4. |
Calculation Agent.
|
Dealer, unless an Event of Default has occurred and is continuing pursuant to Section 5(a)(vii) of the Agreement with respect to which Dealer is the Defaulting Party, in which case Company shall have
the right to designate a nationally recognized third-party dealer in over-the-counter corporate equity derivatives to replace Dealer as Calculation Agent, and the parties shall work in good faith to execute any appropriate documentation required by
such replacement Calculation Agent. All calculations and determinations by the Calculation Agent shall be made in good faith and in a commercially reasonable manner. Following any determination or calculation by the Calculation Agent hereunder, upon
a written request from either party, the Calculation Agent will promptly (but in any event within five Scheduled Trading Days) provide to such party a statement displaying in reasonable detail the basis for such determination or calculation
(including, without limitation, any quotations, market data or information from internal or external sources and any assumptions used in making such determination or calculation), as the case may be (it being understood that the Calculation Agent
shall not be required to disclose any proprietary models or information or confidential models or information used by it in connection with such determination or calculation, as the case may be).
9
| 5. |
Account Details.
|
(a) Account for payments to Company:
|
Bank:
|
[***]
|
|
|
ABA#:
|
[***]
|
|
|
SWIFT:
|
[***]
|
|
|
Acct Name:
|
[***]
|
|
|
Acct No.:
|
[***]
|
Account for delivery of Shares to Company:
To be provided by Company.
(b) Account for payments to Dealer:
|
Bank:
|
[___]
|
|
|
[___]
|
||
|
[___]
|
||
|
ABA#:
|
[___]
|
|
|
SWIFT:
|
[___]
|
|
|
Acct Name:
|
[___]
|
|
|
Acct No.:
|
[___]
|
Account for delivery of Shares from Dealer:
To be provided by Dealer.
| 6. |
Offices.
|
(a) The Office of Company for the Transaction is: Inapplicable, Company is not a Multibranch Party.
(b) The Office of Dealer for the Transaction is: [____]
[________]
[________]
[________]
| 7. |
Notices.
|
(a) Address for notices or communications to Company:
303 2nd Street, South Tower, 8th Floor
San Francisco, California 94107
Attn: Tia Sherringham, General Counsel and Secretary
Telephone No.: (650) 487-3970
Email: ***
With a copy to:
10
DoorDash, Inc.
303 2nd Street, South Tower, 8th Floor
San Francisco, California 94107
Attn: Ravi Inukonda, Chief Financial Officer
Telephone No.: (650) 487-3970
Email: ***
(b) Address for notices or communications to Dealer:
|
To:
|
[___]
|
|
|
[___]
|
||
|
[___]
|
||
|
Attention:
|
[___]
|
|
|
Telephone:
|
[___]
|
|
|
Facsimile:
|
[___]
|
|
|
Email:
|
[___]
|
|
|
With a copy to:
|
[___]
|
|
|
[___]
|
||
|
[___]
|
||
|
Attention:
|
[___]
|
|
|
Telephone:
|
[___]
|
|
|
Facsimile:
|
[___]
|
|
|
Email:
|
[___]
|
| 8. |
Representations and Warranties of Company.
|
Company hereby represents and warrants to Dealer on the date hereof, on and as of the Premium Payment Date and, in the case of the representations in Section 8(d), at all times until termination of
the Transaction, that:
(a) Company has all necessary corporate power and authority to execute, deliver and perform its obligations in respect
of the Transaction; such execution, delivery and performance have been duly authorized by all necessary corporate action on Company’s part; and this Confirmation has been duly and validly executed and delivered by Company and constitutes its valid
and binding obligation, enforceable against Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally,
and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that
rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of
Company hereunder will conflict with or result in a breach of (i) the certificate of incorporation or by-laws (or any equivalent documents) of Company, (ii) any applicable law or regulation, or any order, writ, injunction or decree of any court or
governmental authority or agency, or (iii) any agreement or instrument filed as an exhibit to Company’s Annual Report on Form 10-K for the year ended December 31, 2024, as updated by any subsequent filings, to which Company or any of its
subsidiaries is a party or by which Company or any of its subsidiaries is bound or to which Company or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument,
other than, in the case of clause (iii), any such conflict, breach, default or lien that would not have a material adverse effect on Company’s ability to perform its obligations under the Transaction.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is
required in connection with the execution, delivery or performance by Company of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities laws.
11
(d) A number of Shares equal to the Maximum Number of Shares (as defined below) (the “Warrant
Shares”) have been reserved for issuance by all required corporate action of Company. The Warrant Shares have been duly authorized and, when delivered against payment therefor (which may include Net Share Settlement in lieu of cash) and
otherwise as contemplated by the terms of the Warrants following the exercise of the Warrants in accordance with the terms and conditions of the Warrants, will be validly issued, fully paid and non-assessable, and the issuance of the Warrant Shares
will not be subject to any preemptive or similar rights.
(e) Company is not and, after consummation of the transactions contemplated hereby, will not be required to register
as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(f) Company is an “eligible contract participant,” as such term is defined in Section 1a(18) of the Commodity
Exchange Act, as amended.
(g) Company is not, on the date hereof, in possession of any material non-public information with respect to Company
or the Shares.
(h) To the knowledge of Company, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or
regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its
affiliates owning or holding (however defined) Shares; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of equity
securities by Dealer or any of its affiliates solely as a result of it or any of such affiliates being financial institutions or broker-dealers.
(i) Company (A) is capable of evaluating investment risks independently, both in general and with regard to all
transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer
in writing; and (C) has total assets of at least USD 50 million.
(j) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Company
is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Company, (B) the capital of
Company is adequate to conduct the business of Company, and Company’s entry into the Transaction will not impair its capital, (C) Company has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not
believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Company will be able to continue as a going concern, (E) Company is not “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code
(Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) upon any election of Cash Settlement, Company would be able to purchase the number of Shares with respect to the Transaction in compliance
with the laws of the jurisdiction of Company’s incorporation (including the adequate surplus and capital requirements of Sections 154 and 160 of the General Corporation Law of the State of Delaware).
(k) [Company has received, read and understands the OTC Options Risk Disclosure Statement provided by Dealer and a
copy of the most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Standardized Options”.]
| 9. |
Other Provisions.
|
(a) Opinions. Company shall deliver to Dealer an opinion of counsel,
dated as of the Premium Payment Date, with respect to the matters set forth in Sections 8(a) through (d) of this Confirmation. Delivery of such opinion to Dealer shall be a condition precedent for the purpose of Section 2(a)(iii) of the Agreement
with respect to each obligation of Dealer under Section 2(a)(i) of the Agreement.
12
(b) Repurchase Notices. Company shall, on any day on which Company effects any
repurchase of Shares, promptly give Dealer a written notice of such repurchase (a “Repurchase Notice”) on such day if following such repurchase, the number of outstanding Shares on such day, subject to any
adjustments provided herein, is (i) less than [__]2 million (in the case of the first such notice) or (ii) thereafter more than [__]3 million less than the number of Shares included in the immediately preceding Repurchase Notice. Company agrees to indemnify and hold
harmless Dealer and its affiliates and their respective officers, directors, employees, affiliates, advisors, agents and controlling persons (each, an “Indemnified Person”) from and against any and all losses
(including losses relating to Dealer’s commercially reasonable hedging activities as a consequence of becoming, or of the risk of becoming, a Section 16 “insider”, including without limitation, any forbearance from hedging activities or cessation
of hedging activities and any losses in connection therewith with respect to the Transaction), claims, damages, judgments, liabilities and reasonable and documented out-of-pocket expenses (including reasonable attorney’s fees), joint or several,
which an Indemnified Person actually may become subject to, as a result of Company’s failure to provide Dealer with a Repurchase Notice on the day and in the manner specified in this paragraph, and to reimburse, within 30 days, upon written
request, each of such Indemnified Persons for any reasonable and documented out-of-pocket legal or other expenses incurred in connection with investigating, preparing for, providing testimony or other evidence in connection with or defending any
of the foregoing. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against the Indemnified Person, such Indemnified Person shall promptly notify Company in
writing, and Company, upon request of the Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others Company may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding. Company shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the
plaintiff, Company agrees to indemnify any Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Company shall not be liable for any losses, claims, damages or liabilities (or expenses relating thereto)
of any Indemnified Person that result from the bad faith, gross negligence or willful misconduct of such Indemnified Person. Company shall not, without the prior written consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such proceeding on terms reasonably satisfactory to such Indemnified Person. If the indemnification provided for in this paragraph is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred to therein, then Company under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities. The remedies provided for in this paragraph are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at
law or in equity; provided that in no event shall Company be responsible hereunder for any fees and expenses of more than one counsel (in addition to any local counsel) for all Indemnified Persons in connection with any suit, action, proceeding
(including any governmental or regulatory investigation), claim or demand in the same jurisdiction. The indemnity and contribution agreements contained in this paragraph shall remain operative and in full force and effect regardless of the
termination of the Transaction.
(c) Regulation M. Company is not on the Trade Date engaged in a distribution,
as such term is used in Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of any securities of Company, other than a distribution meeting the requirements of the
exception set forth in Rules 101(b)(10) and 102(b)(7) of Regulation M. Company shall not, until the second Scheduled Trading Day immediately following the Effective Date, engage in any such distribution.
(d) No Manipulation. Company is not entering into the Transaction to create
actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the
Shares) or otherwise in violation of the Exchange Act.
2 Insert the number of Shares outstanding that would cause Dealer’s current position in the Warrants (including the number of Warrants if the greenshoe is exercised
in full, and any warrants under pre-existing warrant transactions with Company) to increase by 0.5%.
3 Insert the number of Shares that, if repurchased, would cause Dealer’s current position in the Warrants (including the number of Warrants if the greenshoe is
exercised in full, and any warrants under pre-existing warrant transactions with Company) to increase by a further 0.5% from the threshold for the first Repurchase Notice.
13
(e) Transfer or Assignment. Company may not transfer any of its rights or
obligations under the Transaction without the prior written consent of Dealer. Dealer may, without Company’s consent, transfer or assign all or any part of its rights or obligations under the Transaction to any third party; provided that (x) an Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment, (y) Dealer shall be responsible for all reasonable costs and
expenses, including reasonable counsel fees, incurred by Company in connection with such transfer or assignment, and (z) as a result of any such transfer or assignment (i) Company will not (including, for the avoidance of doubt, after giving effect
to any indemnity from the transferee or assignee to Company provided in connection with such transfer or assignment) receive from the transferee or assignee on any payment date (after accounting for amounts paid by the transferee or assignee under
Section 2(d)(i)(4) of the Agreement as well as any withholding or deduction) an amount lower than the amount that Company would have been entitled to receive from Dealer in the absence of such transfer or assignment (except to the extent such lower
amount results from a change in law after the date of such transfer or assignment), (ii) Company will not be required to pay or deliver to such assignee or transferee on any payment date or delivery date (taking into account any additional amount
required to be paid by Company under Section 2(d)(i)(4) of the Agreement) an amount or a number of Shares, as applicable, greater than the amount or the number of Shares, as applicable, that Company would have been required to pay or deliver to
Dealer in the absence of such transfer or assignment, and (iii) Dealer shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Company to permit Company
to determine that the results described in clause (z)(i) or (ii) will not occur upon or after such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 8.0%, (B) the Warrant Equity Percentage exceeds 14.5%, or (C)
the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer, acting in good faith, is unable after
using its commercially reasonable efforts to effect a transfer or assignment of Warrants to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership
Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial
termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a Terminated Portion, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination
Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Warrants equal to the number of Warrants underlying the Terminated Portion, (2) Company were the sole Affected Party with respect to such
partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(k) shall apply to any amount that is payable by Company to Dealer pursuant to this sentence as if
Company were not the Affected Party); provided that in calculating any amount due following such designation, Dealer shall act in good faith and a commercially reasonable manner and upon written request
from Company, Dealer will promptly provide to Company a statement displaying in reasonable detail the basis for such calculation (it being understood that Dealer shall not be required to disclose any proprietary models or information or
confidential models or information used by it in connection with such calculation). The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the
number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of
the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that for any reason the equivalent calculation under
Section 16 of the Exchange Act and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Shares outstanding on such day. The “Warrant
Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Warrants and the Warrant Entitlement and (2) the aggregate number of Shares underlying
any other warrants purchased by Dealer from Company, and (B) the denominator of which is the number of Shares outstanding. The “Share Amount” as of any day is the number of Shares that Dealer and any person
whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under any law, rule, regulation, regulatory order or organizational documents or contracts of
Company that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant
definition of ownership under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The “Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares
that could give rise to reporting or registration obligations or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or could result in an adverse effect on a Dealer Person, under any Applicable
Restriction, as determined by Dealer in its reasonable discretion, minus (B) 1% of the number of Shares outstanding. Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or
deliver any Shares or other securities, or make or receive any payment in cash, to or from Company, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities, or make or receive such payment in
cash, and otherwise to perform Dealer’s obligations in respect of the Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Company to the extent of any such performance.
14
(f) Dividends. If at any time during the period from and including the
Effective Date, to and including the last Expiration Date, an ex-dividend date for a cash dividend or distribution (whether or not extraordinary) occurs with respect to the Shares, then the Calculation Agent will, in a commercially reasonable
manner, adjust any of the Strike Price, Number of Warrants and/or Daily Number of Warrants to preserve the fair value of the Warrants to Dealer after taking into account such dividend.
(g) [Insert relevant Dealer agency language, if any.] [Reserved.]
(h) Adjustments. For the avoidance of doubt, whenever the Calculation Agent is
called upon to make an adjustment pursuant to the terms of this Confirmation or the Equity Definitions to take into account the effect of an event, the Calculation Agent shall make such adjustment by reference to the effect of such event on the
Hedging Party, assuming that the Hedging Party maintains a commercially reasonable hedge position.
(i) Additional Provisions.
(i) Amendments to the Equity Definitions:
(A) Section 11.2(a) of the Equity Definitions is hereby amended by deleting the words “a diluting
or concentrative” and replacing them with the word “a material”; and adding the phrase “or Warrants” at the end of the sentence.
(B) Section 11.2(c) of the Equity Definitions is hereby amended by (w) replacing the words “a
diluting or concentrative” with “an” in the fifth line thereof, (x) adding the phrase “or Warrants” after the words “the relevant Shares” in the same sentence, (y) deleting the words “diluting or concentrative” in the sixth to last line thereof and
(z) deleting the phrase “(provided that no adjustments will be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)” and
replacing it with the phrase “(and, for the avoidance of doubt, adjustments may be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares).”
(C) Section 11.2(e)(vii) of the Equity Definitions is hereby amended by (x) replacing the words
“other event” with the words “action by the Issuer” and (y) deleting the words “diluting or concentrative effect on the theoretical value of the relevant Shares” and replacing them with “that is the result of a corporate event involving the Issuer
or its securities that has a material economic effect on the relevant Transaction; provided that such event is not based on (a) an observable market, other than the market for the Company’s own stock or (b) an observable index, other than an index
calculated and measured solely by reference to Company’s own operations”; and adding the phrase “or Warrants” at the end of the sentence.
(D) Section 12.9(b)(iv) of the Equity Definitions is hereby amended by:
| (x) |
deleting (1) subsection (A) in its entirety, (2) the phrase “or (B)” following subsection (A) and (3) the phrase “in each case” in subsection (B); and
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15
| (y) |
replacing the phrase “neither the Non-Hedging Party nor the Lending Party lends Shares” with the phrase “such Lending Party does not lend Shares” in the penultimate sentence.
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(E) Section 12.9(b)(v) of the Equity Definitions is hereby amended by:
| (x) |
adding the word “or” immediately before subsection “(B)” and deleting the comma at the end of subsection (A); and
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| (y) |
(1) deleting subsection (C) in its entirety, (2) deleting the word “or” immediately preceding subsection (C), (3) replacing the words “either party” with the words “the Hedging Party” in the penultimate
sentence and (4) deleting clause (X) in the final sentence.
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(ii) Notwithstanding anything to the contrary in this Confirmation, upon the occurrence of one of the following events,
with respect to the Transaction, (1) Dealer shall have the right to designate such event an Additional Termination Event and designate an Early Termination Date pursuant to Section 6(b) of the Agreement, (2) Company shall be deemed the sole
Affected Party with respect to such Additional Termination Event and (3) the Transaction shall be deemed the sole Affected Transaction (provided that with respect to any such Additional Termination Event,
Dealer may choose to treat part of the Transaction as the sole Affected Transaction, in which case the remainder of the Transaction shall continue in full force and effect); provided that if Dealer so
designates an Early Termination Date with respect to a portion of the Transaction, (a) a payment shall be made pursuant to Section 6 of the Agreement as if an Early Termination Date had been designated in respect of a Transaction having terms
identical to the Transaction and a Number of Warrants equal to the number of Warrants included in the terminated portion of the Transaction, and (b) for the avoidance of doubt, the Transaction shall remain in full force and effect except that the
Number of Warrants shall be reduced by the number of Warrants included in such terminated portion:
(A) A “person” or “group” (within the meaning of Section 13(d)(3) of the Exchange Act), other than
(w) Company, (x) Company’s wholly owned subsidiaries, (y) any employee benefit plans of Company or its wholly owned subsidiaries or (z) any Permitted Party, files any report with the SEC indicating that such person or group has become the direct or
indirect “beneficial owner” (as defined below) of the Shares representing more than 50% of the voting power of all the Company’s common equity or (II) any Permitted Party files (or Permitted Parties file) any report (or reports) with the SEC
indicating that such Permitted Party has (or Permitted Parties have) become the direct or indirect “beneficial owner” of more than 50% of the then-outstanding Shares (excluding, for the avoidance of doubt, for purposes of this clause (II) any
Shares that such Permitted Party or Permitted Parties beneficially owns solely by virtue of its beneficial ownership of Class B common stock or Class C common stock of the Company). “Permitted Party” means any of (A) Tony Xu, Andy Fang and Stanley
Tang, (B) any of the respective affiliated parties of the persons referred to in clause (A) and (C) any “person” or “group” within the meaning of Section 13(d) of the Exchange Act of which any of the persons referred to in clause (A) or (B) are
members; provided that, with respect to this clause (C), the persons referred to in clauses (A) or (B), collectively, beneficially own shares of the Company’s common equity representing more than 50% of the
voting power of the shares of the Company’s common equity held by such person or group.
(B) The consummation of: (1) any sale, lease or other transfer, in one transaction or a series of
transactions, of all or substantially all of the assets of Company and its subsidiaries, taken as a whole, to any person, other than solely to the Company or one or more of its wholly owned subsidiaries; or (2) any transaction or series of related
transactions in connection with which (whether by means of merger, consolidation, share exchange, combination, reclassification, recapitalization, acquisition, liquidation or otherwise) all Shares are exchanged for, converted into, acquired for, or
constitutes solely the right to receive, other securities, cash or other property.
16
Notwithstanding the foregoing, any transaction or event or transactions or event set forth in clauses (A) or (B) above shall not constitute an Additional Termination Event if (x) at least 90% of the consideration
received or to be received by holders of the Shares, excluding cash payments for fractional Shares, in connection with such transaction or transactions consists of shares of common stock that are listed (or depositary receipts representing shares of
common stock or other corporate common equity interests, which depositary receipts are listed) on any of The New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market (or any of their respective successors) or that will be
so listed or quoted when issued or exchanged in connection with such transaction or transactions, and (y) as a result of such transaction or transactions, the Shares will consist of such consideration, excluding cash payments for fractional Shares.4
(C) Company’s stockholders approve any plan or proposal for the liquidation or dissolution of
Company.
(D) The Shares cease to be listed or quoted on any of The New York Stock Exchange, The Nasdaq
Global Select Market or The Nasdaq Global Market (or any of their respective successors).
(E) Dealer, despite using commercially reasonable efforts, is unable or reasonably determines
based on advice of counsel that it is impractical or illegal, to hedge its exposure with respect to the Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory
requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer).
(F) Default by Company or any of its Significant Subsidiaries with respect to any mortgage,
agreement or other instrument under which there is outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed in excess of USD [150] million (or its foreign currency equivalent) in the aggregate of Company
and/or any of its Significant Subsidiaries, whether such indebtedness exists as of the Premium Payment Date or is thereafter created, where such default (i) constitutes a failure to pay the principal of such indebtedness when due and payable at its
stated maturity, upon required repurchase, upon declaration of acceleration or otherwise, in each case after the expiration of any applicable grace period; or (ii) results in such indebtedness becoming or being declared due and payable before its
stated maturity; in each case where such default is not cured or waived within 30 days after notice to Dealer by the Company. For purposes of this Clause (F), “Significant subsidiary” shall mean any
subsidiary of that person that constitutes a “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X under the Exchange Act) of that person; provided, however, that, if a subsidiary meets the criteria of clause (1)(iii) of the
definition of “significant subsidiary” in Rule 1-02(w) but not clause (1)(i) or (1)(ii) thereof (or, if applicable, the respective successor clauses to the aforementioned clauses), then such subsidiary will be deemed not to be a significant
subsidiary of that person unless such subsidiary’s income from continuing operations before income taxes, exclusive of amounts attributable to any non-controlling interests, for the last completed fiscal year before the date of determination
exceeds $[150,000,000].
(j) No Setoff; No Collateral. Notwithstanding any provision of the Agreement
or any other agreement between the parties to the contrary, the obligations of Company hereunder are not secured by any collateral. Each party waives any and all rights it may have to set off obligations arising under the Agreement and the
Transaction against other obligations between the parties, whether arising under any other agreement, applicable law or otherwise.
(k) Alternative Calculations and Payment on Early Termination and on Certain
Extraordinary Events.
(i) If, in respect of the Transaction, an amount is payable by Company to Dealer, (A) pursuant to Section 12.7 or
Section 12.9 of the Equity Definitions or (B) pursuant to Section 6(d)(ii) and 6(e) of the Agreement (any such amount, a “Payment Obligation”), Company shall satisfy the Payment Obligation by the Share
Termination Alternative (as defined below), unless (a) Company gives irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later than 12:00 p.m. (New York City time) on the Merger Date, Tender Offer
Date, Announcement Date (in the case of a Nationalization, Insolvency or Delisting), Early Termination Date or date of cancellation, as applicable, of its election that the Share Termination Alternative shall not apply, (b) Company remakes the
representation set forth in Section 8(g) as of the date of such election and (c) Dealer agrees, in its sole discretion, to such election, in which case the provisions of Section 12.7 or Section 12.9 of the Equity Definitions, or the provisions of
Section 6(d)(ii) and 6(e) of the Agreement, as the case may be, shall apply.
4 NTD: To be conformed to DoN.
17
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Share Termination Alternative:
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If applicable, Company shall deliver to Dealer the Share Termination Delivery Property on the date (the “Share Termination Payment Date”) on which
the Payment Obligation would otherwise be due pursuant to “Consequences of Merger Events / Tender Offers” under Section 3 above or Section 12.6, Section 12.7 or Section 12.9 of the Equity Definitions or Section 6(d)(ii) of the Agreement, as
applicable, subject to Section 9(l)(i) below, in satisfaction, subject to Section 9(l)(ii) below, of the relevant Payment Obligation, in the manner reasonably requested by Dealer free of payment.
|
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Share Termination Delivery
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|
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Property:
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A number of Share Termination Delivery Units, as calculated by the Calculation Agent in a commercially reasonable manner, equal to the relevant Payment Obligation divided by the Share
Termination Unit Price. The Calculation Agent shall adjust the amount of Share Termination Delivery Property by replacing any fractional portion of a security therein with an amount of cash equal to the value of such fractional security based
on the values used to calculate the Share Termination Unit Price (without giving effect to any discount pursuant to Section 9(l)(i)).
|
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Share Termination Unit Price:
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The value to Dealer of property contained in one Share Termination Delivery Unit on the date such Share Termination Delivery Units are to be delivered as Share Termination Delivery
Property, as determined by the Calculation Agent in its discretion by commercially reasonable means. In the case of a Private Placement of Share Termination Delivery Units that are Restricted Shares (as defined below), as set forth in Section
9(l)(i) below, the Share Termination Unit Price shall be determined by the discounted price applicable to such Share Termination Delivery Units. In the case of a Registration Settlement of Share Termination Delivery Units that are Restricted
Shares (as defined below) as set forth in Section 9(l)(ii) below, notwithstanding the foregoing, the Share Termination Unit Price shall be the Settlement Price on the Merger Date, Tender Offer Date, Announcement Date (in the case of a
Nationalization, Insolvency or Delisting), Early Termination Date or date of cancellation, as applicable. The Calculation Agent shall notify Company of the Share Termination Unit Price at the time of notification of such Payment Obligation to
Company or, if applicable, at the time the discounted price applicable to the relevant Share Termination Units is determined pursuant to Section 9(l)(i).
|
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Share Termination Delivery Unit:
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One Share or, if the Shares have changed into cash or any other property or the right to receive cash or any other property as the result of a Nationalization, Insolvency or Merger Event
(any such cash or other property, the “Exchange Property”), a unit consisting of the type and amount of Exchange Property received by a holder of one Share (without consideration of any requirement to
pay cash or other consideration in lieu of fractional amounts of any securities) in such Nationalization, Insolvency or Merger Event. If such Nationalization, Insolvency or Merger Event involves a choice of Exchange Property to be received by
holders, such holder shall be deemed to have elected to receive the maximum possible amount of cash.
|
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Failure to Deliver:
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Inapplicable
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18
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Other applicable provisions:
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If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9, 9.11 and 9.12 (as modified above) of the Equity Definitions will be applicable, except that all
references in such provisions to “Physically-settled” shall be read as references to “Share Termination Settled” and all references to “Shares” shall be read as references to “Share Termination Delivery Units”. “Share Termination Settled” in
relation to the Transaction means that the Share Termination Alternative is applicable to the Transaction.
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(l) Registration/Private Placement Procedures. If, in the reasonable
determination of Dealer, based on the advice of counsel, following any delivery of Shares or Share Termination Delivery Property to Dealer hereunder, such Shares or Share Termination Delivery Property would be in the hands of Dealer subject to any
applicable restrictions, or any registration or qualification requirement or prospectus delivery requirement for such Shares or Share Termination Delivery Property, pursuant to any applicable federal or state securities law (including, without
limitation, any such requirement arising under Section 5 of the Securities Act as a result of such Shares or Share Termination Delivery Property being subject to restrictions on resale under the Securities Act, or as a result of the sale of such
Shares or Share Termination Delivery Property being subject to paragraph (c) of Rule 145 under the Securities Act) (such Shares or Share Termination Delivery Property, “Restricted Shares”), then delivery of
such Restricted Shares shall be effected pursuant to either clause (i) or (ii) below at the election of Company, unless Dealer waives the need for registration/private placement procedures set forth in (i) and (ii) below. Notwithstanding the
foregoing, solely in respect of any Daily Number of Warrants exercised or deemed exercised on any Expiration Date, Company shall elect, prior to the first applicable Settlement Date for the first applicable Expiration Date, a Private Placement
Settlement or Registration Settlement for all deliveries of Restricted Shares for all such Expiration Dates which election shall be applicable to all remaining Settlement Dates for such Warrants and the procedures in clause (i) or clause (ii) below
shall apply for all such delivered Restricted Shares on an aggregate basis commencing after the final Settlement Date for such Warrants. The Calculation Agent shall make reasonable adjustments to settlement terms and provisions under this
Confirmation to reflect a single Private Placement or Registration Settlement for such aggregate Restricted Shares delivered hereunder.
(i) If Company elects to settle the Transaction pursuant to this clause (i) (a “Private
Placement Settlement”), then delivery of Restricted Shares by Company shall be effected in customary private placement procedures with respect to such Restricted Shares reasonably acceptable to Dealer; provided
that Company may not elect a Private Placement Settlement if, on the date of its election, it has taken, or caused to be taken, any action that would make unavailable either the exemption pursuant to Section 4(a)(2) of the Securities Act for the
sale by Company to Dealer (or any affiliate designated by Dealer) of the Restricted Shares or the exemption pursuant to Section 4(a)(1) or Section 4(a)(3) of the Securities Act for resales of the Restricted Shares by Dealer (or any such affiliate
of Dealer). The Private Placement Settlement of such Restricted Shares shall include customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Dealer, due diligence rights (for Dealer or any
designated buyer of the Restricted Shares by Dealer), opinions and certificates, and such other documentation as is customary for private placement agreements, all reasonably acceptable to Dealer. In the case of a Private Placement Settlement,
Dealer shall determine the appropriate discount to the Share Termination Unit Price (in the case of settlement of Share Termination Delivery Units pursuant to Section 9(k) above) or any Settlement Price (in the case of settlement of Shares pursuant
to Section 2 above) applicable to such Restricted Shares in a commercially reasonable manner and appropriately adjust the number of such Restricted Shares to be delivered to Dealer hereunder, which discount shall only take into account the
illiquidity resulting from the fact that the Restricted Shares will not be registered for resale and any commercially reasonable fees and expenses of Dealer (and any affiliate thereof) in connection with such resale. Notwithstanding anything to the
contrary in the Agreement or this Confirmation, the date of delivery of such Restricted Shares shall be the Exchange Business Day following notice by Dealer to Company, of such applicable discount and the number of Restricted Shares to be delivered
pursuant to this clause (i). For the avoidance of doubt, delivery of Restricted Shares shall be due as set forth in the previous sentence and not be due on the Share Termination Payment Date (in the case of settlement of Share Termination Delivery
Units pursuant to Section 9(k) above) or on the Settlement Date for such Restricted Shares (in the case of settlement in Shares pursuant to Section 2 above).
19
(ii) If Company elects to settle the Transaction pursuant to this clause (ii) (a “Registration
Settlement”), then Company shall promptly (but in any event no later than the beginning of the Resale Period) file and use its reasonable best efforts to make effective under the Securities Act a registration statement or supplement or
amend an outstanding registration statement in form and substance reasonably satisfactory to Dealer, to cover the resale of such Restricted Shares in accordance with customary resale registration procedures, including covenants, conditions,
representations, underwriting discounts (if applicable), commissions (if applicable), indemnities due diligence rights, opinions and certificates, and such other documentation as is customary for equity underwriting agreements, all reasonably
acceptable to Dealer. If Dealer, in its sole reasonable discretion, is not satisfied with such procedures and documentation Private Placement Settlement shall apply. If Dealer is satisfied with such procedures and documentation, it shall sell the
Restricted Shares pursuant to such registration statement during a period (the “Resale Period”) commencing on the Exchange Business Day following delivery of such Restricted Shares (which, for the avoidance
of doubt, shall be (x) the Share Termination Payment Date in case of settlement in Share Termination Delivery Units pursuant to Section 9(k) above or (y) the Settlement Date in respect of the final Expiration Date for all Daily Number of Warrants)
and ending on the earliest of (i) the Exchange Business Day on which Dealer completes the sale of all Restricted Shares or, in the case of settlement of Share Termination Delivery Units, a sufficient number of Restricted Shares so that the realized
net proceeds of such sales equals or exceeds the Payment Obligation (as defined above), (ii) the date upon which all Restricted Shares have been sold or transferred pursuant to Rule 144 (or similar provisions then in force) or Rule 145(d)(2) (or
any similar provision then in force) under the Securities Act and (iii) the date upon which all Restricted Shares may be sold or transferred by a non-affiliate pursuant to Rule 144 (or any similar provision then in force) or Rule 145(d)(2) (or any
similar provision then in force) under the Securities Act. If the Payment Obligation exceeds the realized net proceeds from such resale, Company shall transfer to Dealer by the open of the regular trading session on the Exchange on the Exchange
Business Day immediately following the last day of the Resale Period the amount of such excess (the “Additional Amount”) in cash or in a number of Shares (“Make-whole Shares”)
in an amount that, based on the Settlement Price on the last day of the Resale Period (as if such day were the “Valuation Date” for purposes of computing such Settlement Price), has a dollar value equal to the Additional Amount. The Resale Period
shall continue to enable the sale of the Make-whole Shares. If Company elects to pay the Additional Amount in Shares, the requirements and provisions for Registration Settlement shall apply. This provision shall be applied successively until the
Additional Amount is equal to zero. In no event shall Company deliver a number of Restricted Shares greater than the Maximum Number of Shares.
(iii) If the Private Placement Settlement or the Registration Settlement shall not be effected as set forth in clauses
(i) or (ii), as applicable, then failure to effect such Private Placement Settlement or such Registration Settlement shall constitute an Event of Default with respect to which Company shall be the Defaulting Party.
(m) Limit on Beneficial Ownership. Notwithstanding any other provisions hereof,
Dealer may not exercise any Warrant hereunder or be entitled to take delivery of any Shares deliverable hereunder, and Automatic Exercise shall not apply with respect to any Warrant hereunder, to the extent (but only to the extent) that, after such
receipt of any Shares upon the exercise of such Warrant or otherwise hereunder [and after taking into account any Shares deliverable to Dealer under the letter agreement dated May [__], 2025 between Dealer and Company regarding Base Warrants (the “Base Warrant Confirmation”)], (i) the Section 16 Percentage would exceed 8.0%, or (ii) the Share Amount would exceed the Applicable Share Limit. Any purported delivery hereunder shall be void and have no effect
to the extent (but only to the extent) that, after such delivery [and after taking into account any Shares deliverable to Dealer under the Base Warrant Confirmation], (i) the Section 16 Percentage would exceed 8.0%, or (ii) the Share Amount would
exceed the Applicable Share Limit. If any delivery owed to Dealer hereunder is not made, in whole or in part, as a result of this provision, Company’s obligation to make such delivery shall not be extinguished and Company shall make such delivery
as promptly as practicable after, but in no event later than one Business Day after, Dealer gives notice to Company that, after such delivery, (i) the Section 16 Percentage would not exceed 8.0%, and (ii) the Share Amount would not exceed the
Applicable Share Limit.
20
(n) Share Deliveries. Company acknowledges and agrees that, to the extent the
holder of this Warrant is not then an affiliate and has not been an affiliate for 90 days (it being understood that Dealer will not be considered an affiliate under this paragraph solely by reason of its receipt of Shares pursuant to the
Transaction), and otherwise satisfies all holding period and other requirements of Rule 144 of the Securities Act applicable to it, (i) any Shares or Share Termination Delivery Property delivered hereunder at any time after 6 months from the Trade
Date (or 1 year from the Trade Date if, at such time, informational requirements of Rule 144(c) are not satisfied with respect to Company), and (ii) any Restricted Shares after the period of 6 months (or 1 year if, at such time, informational
requirements of Rule 144(c) under the Securities Act are not satisfied with respect to Company) has elapsed from the applicable Settlement Date or Share Termination Payment Date, in each case, shall be eligible for resale without restriction under
Rule 144 of the Securities Act and Company agrees to promptly remove, or cause the transfer agent for such Shares, Share Termination Delivery Property or Restricted Shares, to remove, any legends referring to any restrictions on resale under the
Securities Act from any certificates representing such Shares, Share Termination Delivery Property or Restricted Shares upon request by Dealer to Company or such transfer agent, without any requirement for the delivery of any certificate, consent,
agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other amount or any other action by Dealer. Company further agrees that (i) any Shares or Share Termination Delivery Property delivered hereunder
prior to the date that is 6 months from the Trade Date (or 1 year from the Trade Date if, at such time, informational requirements of Rule 144(c) are not satisfied with respect to Company), and (ii) any Restricted Shares at any time before the
period of 6 months (or 1 year if, at such time, informational requirements of Rule 144(c) under the Securities Act are not satisfied with respect to Company) has elapsed from the applicable Settlement Date or Share Termination Payment Date, in each
case, may be transferred by and among Dealer and its affiliates and Company shall effect such transfer without any further action by Dealer, and any affiliate to which such Shares, Share Termination Delivery Property or Restricted Shares is
transferred may request removal of any legends from any certificates representing such Shares, Share Termination Delivery Property or Restricted Shares, as the case may be, pursuant to the immediately preceding sentence. Notwithstanding anything to
the contrary herein, Company agrees that any delivery of Shares, Share Termination Delivery Property or Restricted Shares shall be effected by book-entry transfer through the facilities of DTC, or any successor depositary, if at the time of
delivery, such class of Shares, class of Share Termination Delivery Property or class or Restricted Shares is in book-entry form at DTC or such successor depositary. Notwithstanding anything to the contrary herein, to the extent the provisions of
Rule 144 of the Securities Act or any successor rule are amended, or the applicable interpretation thereof by the Securities and Exchange Commission or any court change after the Trade Date, the agreements of Company herein shall be deemed modified
to the extent necessary, in the opinion of outside counsel of Company, to comply with Rule 144 of the Securities Act or any successor rule, as in effect at the time of delivery of the relevant Shares, Share Termination Delivery Property or
Restricted Shares.
(o) Waiver of Jury Trial. Each party waives, to the fullest extent permitted
by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction. Each party (i) certifies that no representative, agent or attorney of the other party has represented, expressly
or otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party have been induced to enter into the Transaction, as applicable,
by, among other things, the mutual waivers and certifications provided herein.
(p) Tax Disclosure. Effective from the date of commencement of discussions
concerning the Transaction, Company and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any
kind (including opinions or other tax analyses) that are provided to Company relating to such tax treatment and tax structure.
(q) Maximum Share Delivery.
(i) Notwithstanding any other provision of this Confirmation, the Agreement or the Equity Definitions, in no event
will Company at any time be required to deliver a number of Shares greater than two times the Number of Shares (the “Maximum Number of Shares”) to Dealer in connection with the Transaction, including, without
limitation, any Shares deliverable to Dealer as a result of any early termination of the Transaction. Company shall not take any action to decrease the number of authorized but unissued Shares that are not reserved for other transactions below the
Maximum Number of Shares.
(ii) In the event Company shall not have delivered to Dealer the full number of Shares or Restricted Shares otherwise
deliverable by Company to Dealer pursuant to the terms of the Transaction because Company has insufficient authorized but unissued Shares that are not reserved for other transactions (such deficit, the “Deficit
Shares”), Company shall be continually obligated to deliver, from time to time, Shares or Restricted Shares, as the case may be, to Dealer until the full number of Deficit Shares have been delivered pursuant to this Section 9(q)(ii), when,
and to the extent that, (A) Shares are repurchased, acquired or otherwise received by Company or any of its subsidiaries after the Trade Date (whether or not in exchange for cash, fair value or any other consideration), (B) authorized and unissued
Shares previously reserved for issuance in respect of other transactions become no longer so reserved or (C) Company additionally authorizes any unissued Shares that are not reserved for other transactions; provided
that in no event shall Company deliver any Shares or Restricted Shares to Dealer pursuant to this Section 9(q)(ii) to the extent that such delivery would cause the aggregate number of Shares and Restricted Shares delivered to Dealer to exceed the
Maximum Number of Shares. Company shall immediately notify Dealer of the occurrence of any of the foregoing events (including the number of Shares subject to clause (A), (B) or (C) and the corresponding number of Shares or Restricted Shares, as the
case may be, to be delivered) and promptly deliver such Shares or Restricted Shares, as the case may be, thereafter.
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(r) Right to Extend. Dealer may postpone or add, in whole or in part, any
Expiration Date or any other date of valuation or delivery with respect to some or all of the relevant Warrants (in which event the Calculation Agent shall make appropriate adjustments to the Daily Number of Warrants with respect to one or more
Expiration Dates) if Dealer reasonably determines, in its good faith, commercially reasonable judgment (or, in the case of clause (ii) below only, based on the advice of counsel), that such postponement is reasonably necessary or appropriate (i) to
preserve Dealer’s hedging or hedge unwind activity hereunder in light of existing liquidity conditions (but only if there is a material decrease in liquidity relative to Dealer’s expectation on the Trade Date, as determined by Dealer in its sole
discretion) or (ii) to enable Dealer to effect transactions in Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if Dealer were Issuer or an affiliated purchaser of Issuer, be in compliance
with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer; provided that no such Expiration Date or other date of valuation or delivery
may be postponed or added more than 80Exchange Business Days after the final Expiration Date or original other date of valuation or delivery, as the case may be.
(s) Status of Claims in Bankruptcy. Dealer acknowledges and agrees that this
Confirmation is not intended to convey to Dealer rights against Company with respect to the Transaction that are senior to the claims of common stockholders of Company in any United States bankruptcy proceedings of Company; provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Company of its obligations and agreements with respect to the Transaction other
than during any such bankruptcy proceedings; provided further that nothing herein shall limit or shall be deemed to limit Dealer’s rights in respect of any transactions other than the Transaction.
(t) Securities Contract; Swap Agreement. The parties hereto intend for (i) the
Transaction to be a “securities contract” and a “swap agreement” as defined in the Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”), and the parties hereto to be entitled to the
protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code, (ii) a party’s right to liquidate the Transaction and to exercise any other remedies upon the occurrence of any Event
of Default under the Agreement with respect to the other party to constitute a “contractual right” as described in the Bankruptcy Code, and (iii) each payment and delivery of cash, securities or other property hereunder to constitute a “margin
payment” or “settlement payment” and a “transfer” as defined in the Bankruptcy Code.
(u) Wall Street Transparency and Accountability Act. In connection with Section
739 of the Wall Street Transparency and Accountability Act of 2010 (“WSTAA”), the parties hereby agree that neither the enactment of WSTAA or any regulation under the WSTAA, nor any requirement under WSTAA or
an amendment made by WSTAA, shall limit or otherwise impair either party’s otherwise applicable rights to terminate, renegotiate, modify, amend or supplement this Confirmation or the Agreement, as applicable, arising from a termination event, force
majeure, illegality, increased costs, regulatory change or similar event under this Confirmation, the Equity Definitions incorporated herein, or the Agreement (including, but not limited to, rights arising from Change in Law, Hedging Disruption,
Increased Cost of Hedging, an Excess Ownership Position, or Illegality (as defined in the Agreement)).
(v) Agreements and Acknowledgements Regarding Hedging. Company understands,
acknowledges and agrees that: (A) at any time on and prior to the last Expiration Date, Dealer and its affiliates may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative
securities in order to adjust its hedge position with respect to the Transaction, (B) Dealer and its affiliates also may be active in the market for Shares other than in connection with hedging activities in relation to the Transaction, (C) Dealer
shall make its own determination as to whether, when or in what manner any hedging or market activities in securities of Issuer shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect
to the Settlement Prices and (D) any market activities of Dealer and its affiliates with respect to Shares may affect the market price and volatility of Shares, as well as the Settlement Prices, each in a manner that may be adverse to Company.
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(w) Early Unwind. In the event the sale of the [“Firm][“Additional]
Securities” (as defined in the Purchase Agreement, dated as of May [ ● ], 2025, among Company and J.P. Morgan Securities LLC, as representative of the Initial Purchasers party thereto (the “Initial Purchasers”)) is not consummated with the Initial Purchasers for any reason, or Company fails to deliver to Dealer opinions of counsel as required pursuant to Section 9(a), in each case by 1:00 p.m. (New
York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later date the “Early Unwind Date”), the Transaction shall automatically
terminate (the “Early Unwind”), on the Early Unwind Date and (i) the Transaction and all of the respective rights and obligations of Dealer and Company under the Transaction shall be cancelled and terminated
and (ii) each party shall be released and discharged by the other party from and agrees not to make any claim against the other party with respect to any obligations or liabilities of the other party arising out of and to be performed in connection
with the Transaction either prior to or after the Early Unwind Date. Each of Dealer and Company represents and acknowledges to the other that, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally
discharged.
(x) Payment by Dealer. In the event that, following payment of the Premium,
(i) an Early Termination Date occurs or is designated with respect to the Transaction as a result of a Termination Event or an Event of Default (other than an Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement) and, as a
result, Dealer owes to Company an amount calculated under Section 6(e) of the Agreement, or (ii) Dealer owes to Company, pursuant to Section 12.7 or Section 12.9 of the Equity Definitions, an amount calculated under Section 12.8 of the Equity
Definitions, such amount shall be deemed to be zero.
(y) Listing of Warrant Shares. Company shall have submitted an application for
the listing of the Warrant Shares on the Exchange, and such application and listing shall have been approved by the Exchange, subject only to official notice of issuance, in each case, on or prior to the Premium Payment Date.
(z) [Conduct Rules. Each party acknowledges and agrees to be bound by the
Conduct Rules of the Financial Industry Regulatory Authority applicable to transactions in options, and further agrees not to violate the position and exercise limits set forth therein.] [Reserved.]
(aa) Tax Matters.
(i) Payee Tax Representations. For the purpose of Section 3(f) of the Agreement, the
parties make the following representations, as applicable:
(A) Company is a corporation created or organized under the laws of Delaware. It is “exempt” within the meaning of
Treasury Regulation section 1.6049-4(c) from information reporting on U.S. Internal Revenue Service Form 1099 and backup withholding.
(B) [Dealer is a corporation for U.S. federal income tax purposes created or organized in the United States or under the
laws of the United States. It is “exempt” within the meaning of Treasury Regulation section 1.6049-4(c) from information reporting on U.S. Internal Revenue Service Form 1099 and backup withholding.] OR [Dealer is a “foreign person” (as that term is
used in Section 1.6041-4(a)(4) of the United States Treasury Regulations) for United States federal income tax purposes. Each payment received or to be received by Dealer in connection with the Agreement is effectively connected with its conduct of
a trade or business within the United States.]5
(ii) Tax Forms. For the purpose of Section 4(a)(i) of the Agreement:
(A) Company shall provide Dealer with a valid and duly executed U.S. Internal Revenue Service Form W-9, or any successor
thereto, (i) on or before the date of execution of this Confirmation, (ii) promptly upon reasonable demand by Dealer and (iii) promptly upon learning that any such tax form previously provided by Company has become obsolete or incorrect.
5 NTD: Dealer should be eligible to deliver an IRS Form W-9 or an IRS Form W-8ECI.
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(B) Dealer shall provide Company with a valid and duly executed U.S. Internal Revenue Service Form [W-9] OR [W-8ECI],
or any successor thereto, (i) on or before the date of execution of this Confirmation, (ii) promptly upon reasonable demand by Company and (iii) promptly upon learning that any such tax form previously provided by Dealer has become obsolete or
incorrect.
(iii) Foreign Account Tax Compliance Act. “Indemnifiable Tax”, as defined in Section 14 of the
Agreement, shall not include any U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to
Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a “FATCA Withholding Tax”). For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement.
(iv) HIRE Act and Section 305. “Tax” and “Indemnifiable Tax”, each as defined in Section 14 of the Agreement, shall not include
any tax imposed on payments treated as dividends from sources within the United States under Section 305 (as in effect on the date hereof) or Section 871(m) of the Code or any regulations issued thereunder (each such tax, “Dividend Tax”). Without duplication for (1) any amount that Company has deducted or withheld on account of such Dividend Tax from any amount paid to Dealer or (2) any amount that Company has paid from money or other property of Dealer, the amount of Dividend Taxes so required to be remitted (which for the avoidance of doubt, includes any related liability for interest, but includes any
related liability for penalties only if Dealer has failed to comply with or perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d) of the Agreement or its obligations under Section 1.871-15(p) of United States Treasury Regulations)
shall be payable by Dealer to Company within 10 business days of written request by Company, and Dealer’s aforementioned obligations shall survive the termination of any
Transaction.
(bb) [Insert relevant Dealer boilerplate, including QFC language, if any.]
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Please confirm that the foregoing correctly sets forth the terms of the agreement between Dealer and Company with respect to the Transaction, by executing this Confirmation or this page hereof as
evidence of agreement to such terms and providing the other information requested herein and returning an executed copy to Dealer.
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Yours faithfully,
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Name:
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Title:
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as Agent
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Title:
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[Signature Page to [Base][Additional] Warrant Confirmation]
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DOORDASH, INC.
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Authorized Signatory
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[Signature Page to [Base][Additional] Warrant Confirmation]
Exhibit 99.1
DoorDash Announces Closing of Upsized $2.75 Billion Offering of 0% Convertible Senior Notes
May 30, 2025
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●
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Opportunistic capital raise with proceeds used to enhance
strategic flexibility
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A portion of the proceeds used to purchase a hedge overlay to
offset any share dilution up to a 150% premium to the stock price at issuance
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SAN FRANCISCO – DoorDash, Inc. (NASDAQ: DASH) (“DoorDash”), a leading local commerce platform globally, today announced the closing of its previously announced
private offering of $2.75 billion aggregate principal amount of its 0% convertible senior notes due 2030 (the “notes”). The notes were sold in a private offering only to persons reasonably believed to be qualified institutional buyers pursuant to
Rule 144A under the U.S. Securities Act of 1933, as amended (the “Securities Act”). The offering represents the aggregate of both the previously announced, upsized offering of $2.5 billion, as well as the full exercise of the $250.0 million option
to purchase additional notes granted by DoorDash to the initial purchasers of the notes.
The net proceeds from the offering were approximately $2,720 million, after deducting fees and estimated expenses. DoorDash used approximately $338.5 million of
the net proceeds from this offering of the notes to fund the cost of entering into the previously disclosed convertible note hedge transactions (after such cost was partially offset by the proceeds to DoorDash from the sale of warrants pursuant to
the previously disclosed warrant transactions), and intends to use the remainder of the net proceeds for general corporate purposes, which may include potential acquisitions and potential repurchases of shares of our outstanding Class A common
stock.
The offer and sale of the notes and the shares of DoorDash’s Class A common stock potentially issuable upon conversion of the notes have
not been, and will not be, registered under the Securities Act or the securities laws of any other jurisdiction, and such securities may not be offered or sold in the United States absent registration or an applicable exemption from such
registration requirements.
This press release does not and shall not constitute an offer to sell, or the solicitation of an offer to buy, any notes or shares of DoorDash’s common stock,
nor shall there be any offer, solicitation or sale of notes or such common stock in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any
such state or jurisdiction.
About DoorDash
DoorDash (NASDAQ: DASH) is one of the world’s leading local commerce platforms that helps businesses of all kinds grow and innovate, connects consumers to the
best of their neighborhoods, and gives people fast, flexible ways to earn. Since its founding in 2013, DoorDash has expanded to over 30 countries, using technology and logistics to shape the future of commerce. Through its Marketplace and its
Commerce Platform, DoorDash is driving economic vitality in the regions it serves worldwide.
Forward-Looking Statements
This press release contains forward-looking statements regarding the offering of the notes and the convertible note hedge and warrant transactions, which are
subject to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Any statements made in this press release that are not statements of historical fact, including statements regarding the anticipated use of proceeds from
the offering, are forward-looking statements and should be evaluated as such. You can identify forward-looking statements because they contain words such as “may,” “will,” “expect,” “anticipate,” “could,” “would,” “intend,” “project,” “believe” or
“potential,” or the negative of these words, or other similar terms or expressions that concern our expectations, strategies, plans, or intentions. Forward-looking statements are based on DoorDash management’s beliefs, as well as assumptions made
by, and information currently available to, them. Because such statements are based on expectations as to future results and are not statements of fact, actual results may differ materially from those projected. Factors that may cause actual
results to differ materially from current expectations include, but are not limited to, risks related to the offering of the notes, the intended use of proceeds and the consummation of the convertible note hedge and warrant transactions, and the
other factors more fully described in DoorDash’s Annual Report on Form 10-K for the year ended December 31, 2024, Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2025 and DoorDash’s other filings with the U.S. Securities and
Exchange Commission. All forward-looking statements in this press release are based on information available to DoorDash and assumptions and beliefs as of the date hereof, and DoorDash disclaims any obligation to update any forward-looking
statements, except as required by law.
Investor Relations
ir@doordash.com
Press
press@doordash.com