NXH 8-K
Neighborhood Intelligence, Inc. (NXH)
8-K
2026-07-09
For: 2026-07-08
View Original
Added on
July 09, 2026
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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(IRS Employer Identification No.)
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(Address of principal executive offices)(Zip Code)
(801 ) 947-3100
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 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). 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 a Material Definitive Agreement.
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On July 8, 2026 (the “Closing Date”), Bed Bath & Beyond, Inc., a Delaware
corporation (the “Company”), completed the previously announced acquisition of The Container Store Holdings, LLC, a Delaware limited liability company (“TCS”), pursuant to the Agreement and Plan of Merger, dated as of April 2, 2026 (the “Merger Agreement”), by and among the Company, TCS Merger Sub, LLC, a Delaware limited liability company and wholly owned subsidiary of the Company (“Merger Sub”), and TCS. Pursuant to the Merger Agreement, upon the terms and subject to the conditions set forth therein, Merger Sub merged with and into TCS, with TCS surviving as a wholly owned subsidiary of the Company (the “Merger”).
Registration Rights and Lock-Up Agreement
On the Closing Date, the Company and each person listed under the header “Initial Holders” on the signature pages thereto (the “Holders”) entered into a registration rights and lock-up agreement (the “Registration Rights Agreement”).
Under the Registration Rights Agreement, the Company is required to file a shelf registration statement covering the resale of the shares of common stock, par value $0.0001 per share, of the Company (“Common Stock”) to be received pursuant to the Merger Agreement, the shares of Common Stock issuable upon conversion of the Convertible Notes (as defined below) and the shares issued pursuant to the
Letter Agreement (as defined below) as soon as reasonably practicable following the closing of the Merger and no later than the 60th day following the Closing Date. The Holders, collectively, are permitted to make two demands that the Company
consummate an underwritten take-down off of any such registration statement within any 12-month period (subject to certain limitations and customary conditions, including a minimum net aggregate offering price of $25.0 million). Furthermore, the
Holders have piggyback registration rights when the Company proposes to register certain of its equity securities. The Company is required to bear all expenses incurred in connection with the filing of any such registration statements and any such
offerings, other than underwriting discounts and commissions of the sale of Registrable Securities (as defined in the Registration Rights Agreement).
In addition, during the Lock-Up Period (as defined below), the Holders are prohibited from transferring two-thirds of the shares of Common Stock to be received pursuant
to the Merger Agreement that each Holder receives (the “Lock-Up Shares”), subject to certain customary exceptions. Under the Registration Rights Agreement,
the “Lock-Up Period” is the period commencing on the Closing Date and (a) with respect to 50% of the Lock-Up Shares, ending on the earlier of (i) the 180th
day following the Closing Date and (ii) the date on which the daily volume-weighted average price (the “VWAP”) of the Common Stock on the New York Stock
Exchange (the “NYSE”) equals or exceeds $9.80 per share for 20 consecutive trading days; and (b) with respect to the other 50% of the Lock-Up Shares, ending
on the earlier of (i) the 270th day following the Closing Date and (ii) the date on which the VWAP of the Common Stock on the NYSE equals or exceeds $14.00 per share for 20 consecutive trading days.
The foregoing description of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the form
of the Registration Rights Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
Indenture and Issuance of Convertible Senior Notes due 2033
On the Closing Date, the Company entered into an indenture (the “Indenture”),
among the Company, the guarantors from time to time party thereto and Computershare Trust Company, National Association, as trustee, with respect to $112,553,000 aggregate principal amount of the Company’s 5.00% Convertible Senior Notes due 2033 (the
“Convertible Notes”) to be issued pursuant to the Merger Agreement. The Convertible Notes are senior, unsecured obligations of the Company and accrue interest
payable semiannually in arrears at a rate of 5.00% per year on April 1 and October 1 of each year, beginning April 1, 2027. The Convertible Notes mature on July 8, 2033, unless earlier converted or repurchased. The Convertible Notes are guaranteed by
certain subsidiaries of the Company.
Under the Indenture, the Company agrees to use its reasonable best efforts to obtain the approval of its stockholders that is required under the applicable NYSE rules
and regulations in connection with the issuance of Common Stock. The Indenture provides that if the Company has not obtained such stockholder approval on or before the three-month anniversary of the Closing Date, the interest payable on the
Convertible Notes will increase to 10.00% per year until such stockholder approval is obtained and if the Company has not obtained such stockholder approval on or before the six-month anniversary of the Closing Date, the interest payable on the
Convertible Notes will increase to 12.00% per year until such stockholder approval is obtained.
A holder of Convertible Notes is entitled to convert all or any portion of its Convertible Notes into shares of Common Stock at its option at any time prior to the close
of business on the business day immediately preceding the earlier of (a) the Requisite Stockholder Approval Date (as defined in the Indenture), (b) the date of the Company’s annual meeting of common stockholders held in calendar year 2028 and (c)
June 1, 2028 (the earliest of such date, the “Free Conversion Date”), only upon the occurrence of specified corporate events. On or after the Free Conversion
Date until the close of business on the second scheduled trading day immediately preceding the maturity date, a holder may convert all or any portion of its Convertible Notes at any time, regardless of the foregoing circumstances.
The conversion rate is initially 109.8901 shares of Common Stock per $1,000 principal amount of Convertible Notes (equivalent to an initial conversion price of
approximately $9.10 per share of Common Stock). The conversion rate is subject to adjustment in some events but will not be adjusted for any accrued and unpaid interest. In addition, following certain corporate events that occur prior to the maturity
date, the Company will, in certain circumstances, increase the conversion rate for a holder who elects to convert its Convertible Notes in connection with such a corporate event.
If the Company undergoes certain fundamental changes, holders are entitled to require the Company to repurchase for cash all or any portion of their Convertible Notes at
a fundamental change repurchase price equal to 100% of the principal amount of the Convertible Notes to be repurchased, plus any accrued and unpaid interest to, but excluding, the fundamental change repurchase date.
The Indenture provides for customary events of default, which, if any of them occurs, would permit or require the principal, interest and any other monetary obligations
on all outstanding Convertible Notes to become due and payable immediately.
The foregoing description of the Indenture does not purport to be complete and is qualified in its entirety by reference to the full text of the form of the Indenture, a
copy of which is filed as Exhibit 4.1 to this Current Report on Form 8-K and incorporated herein by reference.
The foregoing description of the Convertible Notes does not purport to be complete and is qualified in its entirety by reference to the full text of the form of the
Convertible Note, a copy of which is filed as Exhibit 4.2 to this Current Report on Form 8-K and incorporated herein by reference.
| Item 2.01. |
Completion of Acquisition or Disposition of Assets.
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As discussed in Item 1.01 of this Current Report on Form 8-K, the Company completed its previously announced acquisition of TCS. Pursuant to the terms and conditions of
the Merger Agreement, the Company issued an aggregate number of 13,714,287 shares of Common Stock and $112,553,000 aggregate principal amount of Convertible Notes. Immediately after the closing of the Merger, the Company repurchased 286,663 shares of
Common Stock and will hold those shares in treasury and cancelled $1,299,000 aggregate principal amount of Convertible Notes in connection with the repayment of certain TCS loans.
The foregoing description of the Merger and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the
Merger Agreement, which was filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with Securities and Exchange Commission on April 2, 2026, and is incorporated herein by reference as Exhibit 2.1 to this Current Report on Form 8-K.
| Item 2.03. |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
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The information set forth under the heading “Indenture and Issuance of Convertible Senior Notes due 2033” under Item 1.01 of this Current Report on Form 8-K is
incorporated herein by reference.
| Item 3.02. |
Unregistered Sales of Equity Securities.
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The information in Item 2.01 of this Current Report on Form 8-K with respect to the Merger Agreement is incorporated herein by reference. The shares of Common Stock and
the Convertible Notes issued pursuant to the Merger Agreement will not initially be registered under the Securities Act in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”). Any shares of Common Stock that may be issued upon conversion of the Convertible 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.
Additionally, on the Closing Date, in connection with the Merger, the Company issued 142,857 shares of Common Stock pursuant to a letter agreement, dated July 8, 2026
(the “Letter Agreement”), among The Container Store, Inc. (“TCS Inc.”), TCS, Spruce Advisory Group, LLC and the Company, in satisfaction of certain obligations of TCS Inc. under a consulting services agreement between Spruce Advisory Group, LLC and TCS Inc. The
shares of Common Stock issued pursuant to the Letter Agreement will not initially be registered under the Securities Act in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act.
| Item 9.01. |
Financial Statements and Exhibits.
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(a) Financial Statements of Business Acquired
The financial statements of the acquired company, TCS, will be filed as part of an amendment to this Current Report on Form 8-K not later than 71 calendar days after the
date this Current Report on Form 8-K is required to be filed.
(b) Pro Forma Financial Information.
The pro forma financial information with respect to the acquisition of TCS by the Company will be filed as part of an amendment to this Current Report on Form 8-K not
later than 71 calendar days after the date this Current Report on Form 8-K is required to be filed.
(d) Exhibits.
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Exhibit Number
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Description
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Agreement and Plan of Merger, dated as of April 2, 2026, by and among Bed Bath & Beyond, Inc., TCS Merger Sub, LLC and The Container Store Holdings, LLC (incorporated by
reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed by the Company with the SEC on April 2, 2026)
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Indenture, dated as of July 8, 2026, among Bed Bath & Beyond, Inc., the guarantors from time to time party thereto and Computershare Trust Company, National Association, as
trustee
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Form of 5.00% Convertible Senior Note due 2033 (included in Exhibit 4.1 above)
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Registration Rights and Lock-Up Agreement, dated as of July 8, 2026, by and among Bed Bath & Beyond, Inc., each person listed under the header “Initial Holders” on the
signature pages thereto and each person who becomes a party thereto.
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104
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Cover Page Interactive Data File (the cover page XBRL tags are embedded within the iXBRL document)
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*
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Certain of the schedules and exhibits to the agreement have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted schedule or
exhibit will be furnished to the Securities and Exchange Commission upon request.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
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Bed Bath & Beyond, Inc.
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By:
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/s/ Marcus Lemonis
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Marcus Lemonis
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Chief Executive Officer
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Date:
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July 9, 2026
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Exhibit 4.1
BED BATH & BEYOND, INC.,
as Issuer
EACH OF THE GUARANTORS FROM TIME TO TIME PARTY HERETO,
as Guarantors
AND
COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of July 8, 2026
5.00% Convertible Senior Notes due 2033
TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS
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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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References to Interest
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20
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ARTICLE 2 ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
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20
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Section 2.01
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Designation and Amount
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20
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Section 2.02
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Form of Notes
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20
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Section 2.03
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Date and Denomination of Notes; Payments of Interest and Defaulted Amounts
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21
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Section 2.04
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Execution, Authentication and Delivery of Notes
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23
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Section 2.05
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Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary
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23
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Section 2.06
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Mutilated, Destroyed, Lost or Stolen Notes
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30
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Section 2.07
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Temporary Notes
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31
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Section 2.08
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Cancellation of Notes Paid, Converted, Etc
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31
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Section 2.09
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CUSIP Numbers
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31
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Section 2.10
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Additional Notes; Repurchases
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32
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ARTICLE 3 SATISFACTION AND DISCHARGE
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32
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Section 3.01
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Satisfaction and Discharge
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32
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ARTICLE 4 PARTICULAR COVENANTS OF THE COMPANY
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33
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Section 4.01
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Payment of Principal and Interest
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33
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Section 4.02
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Maintenance of Office or Agency
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33
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Section 4.03
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Appointments to Fill Vacancies in Trustee’s Office
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33
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Section 4.04
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Provisions as to Paying Agent
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33
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Section 4.05
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Existence
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35
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Section 4.06
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Rule 144A Information Requirement and Annual Reports
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35
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Section 4.07
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Stay, Extension and Usury Laws
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38
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Section 4.08
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Compliance Certificate; Statements as to Defaults
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38
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Section 4.09
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Further Instruments and Acts
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38
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Section 4.10
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Requisite Stockholder Approval
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38
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Section 4.11
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Registration Rights
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39
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ARTICLE 5 LISTS OF HOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE
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39
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Section 5.01
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Lists of Holders
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39
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Section 5.02
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Preservation and Disclosure of Lists
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39
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ARTICLE 6 DEFAULTS AND REMEDIES
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40
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Section 6.01
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Events of Default
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40
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Section 6.02
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Acceleration; Rescission and Annulment
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41
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Section 6.03
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Additional Interest
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42
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Section 6.04
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Payments of Notes on Default; Suit Therefor
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43
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Section 6.05
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Application of Monies Collected by Trustee
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45
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Section 6.06
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Proceedings by Holders
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45
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Section 6.07
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Proceedings by Trustee
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46
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Section 6.08
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Remedies Cumulative and Continuing
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46
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Section 6.09
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Direction of Proceedings and Waiver of Defaults by Majority of Holders
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47
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Section 6.10
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Notice of Defaults
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47
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Section 6.11
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Undertaking to Pay Costs
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47
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ARTICLE 7 CONCERNING THE TRUSTEE
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48
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Section 7.01
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Duties and Responsibilities of Trustee
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48
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Section 7.02
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Reliance on Documents, Opinions, Etc
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49
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Section 7.03
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No Responsibility for Recitals, Etc
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51
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i
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Section 7.04
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Trustee, Paying Agents, Conversion Agents or Note Registrar May Own Notes
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51
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Section 7.05
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Monies and Shares of Common Stock to Be Held in Trust
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51
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Section 7.06
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Compensation and Expenses of Trustee
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52
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Section 7.07
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Officer’s Certificate and Opinion of Counsel as Evidence
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53
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Section 7.08
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Eligibility of Trustee
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53
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Section 7.09
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Resignation or Removal of Trustee
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53
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Section 7.10
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Acceptance by Successor Trustee
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54
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Section 7.11
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Succession by Merger, Etc
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55
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Section 7.12
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Trustee’s Application for Instructions from the Company
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55
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ARTICLE 8 CONCERNING THE HOLDERS
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56
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Section 8.01
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Action by Holders
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Section 8.02
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Proof of Execution by Holders
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56
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Section 8.03
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Who Are Deemed Absolute Owners
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56
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Section 8.04
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Company-Owned Notes Disregarded
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57
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Section 8.05
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Revocation of Consents; Future Holders Bound
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57
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ARTICLE 9 HOLDERS’ MEETINGS
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57
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Section 9.01
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Purpose of Meetings
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57
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Section 9.02
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Call of Meetings by Trustee
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58
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Section 9.03
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Call of Meetings by Company or Holders
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58
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Section 9.04
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Qualifications for Voting
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58
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Section 9.05
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Regulations
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58
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Section 9.06
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Voting
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59
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Section 9.07
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No Delay of Rights by Meeting
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59
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ARTICLE 10 SUPPLEMENTAL INDENTURES
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59
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Section 10.01
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Supplemental Indentures Without Consent of Holders
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59
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Section 10.02
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Supplemental Indentures with Consent of Holders
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60
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Section 10.03
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Effect of Supplemental Indentures
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62
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Section 10.04
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Notation on Notes
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62
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Section 10.05
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Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee
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62
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ARTICLE 11 CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
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62
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Section 11.01
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Company May Consolidate, Etc. on Certain Terms
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62
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Section 11.02
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Successor Entity to Be Substituted
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63
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ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
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64
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Section 12.01
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Indenture and Notes Solely Corporate Obligations
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64
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ARTICLE 13 GUARANTEE
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64
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Section 13.01
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Guarantee
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64
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Section 13.02
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Limitation on Guarantor Liability
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66
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Section 13.03
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Guarantors May Consolidate, etc., on Certain Terms
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66
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Section 13.04
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Stay of Acceleration
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67
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Section 13.05
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Execution and Delivery
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67
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Section 13.06
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Release of Guarantees
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67
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Section 13.07
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Future Guarantors
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69
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ARTICLE 14 CONVERSION OF NOTES
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69
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Section 14.01
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Conversion Privilege
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69
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Section 14.02
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Conversion Procedure; Settlement Upon Conversion
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70
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Section 14.03
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Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or a Notice of Redemption
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75
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Section 14.04
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Adjustment of Conversion Rate
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77
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Section 14.05
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Adjustments of Prices
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87
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ii
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Section 14.06
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Shares to Be Fully Paid
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87
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Section 14.07
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Effect of Recapitalizations, Reclassifications and Changes of the Common Stock
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87
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Section 14.08
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Certain Covenants
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89
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Section 14.09
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Responsibility of Trustee
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90
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Section 14.10
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Notice to Holders Prior to Certain Actions
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90
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Section 14.11
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Stockholder Rights Plans
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91
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Section 14.12
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Exchange in Lieu of Conversion
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91
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Section 14.13
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Beneficial Ownership Limitations
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92
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ARTICLE 15 REPURCHASE OF NOTES AT OPTION OF HOLDERS
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93
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Section 15.01
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[Intentionally Omitted]
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93
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Section 15.02
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Repurchase at Option of Holders Upon a Fundamental Change
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94
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Section 15.03
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Withdrawal of Fundamental Change Repurchase Notice
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96
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Section 15.04
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Deposit of Fundamental Change Repurchase Price
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97
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Section 15.05
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Covenant to Comply with Applicable Laws Upon Repurchase of Notes
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98
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ARTICLE 16 OPTIONAL REDEMPTION
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98
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Section 16.01
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[Intentionally Omitted]
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98
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Section 16.02
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Optional Redemption
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98
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Section 16.03
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Notice of Optional Redemption; Selection of Notes
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99
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Section 16.04
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Payment of Notes Called for Redemption
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100
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Section 16.05
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Restrictions on Redemption
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100
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ARTICLE 17 MISCELLANEOUS PROVISIONS
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101
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Section 17.01
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Provisions Binding on Successors
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101
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Section 17.02
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Official Acts by Successor
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101
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Section 17.03
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Addresses for Notices, Etc
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101
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Section 17.04
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Governing Law; Jurisdiction
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102
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Section 17.05
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Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee
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102
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Section 17.06
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Legal Holidays
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103
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Section 17.07
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No Security Interest Created
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103
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Section 17.08
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Benefits of Indenture
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103
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Section 17.09
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Table of Contents, Headings, Etc
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103
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Section 17.10
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Authenticating Agent
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103
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Section 17.11
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Execution in Counterparts; Electronic Signatures
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104
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Section 17.12
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Severability
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105
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Section 17.13
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Waiver of Jury Trial
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105
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Section 17.14
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Force Majeure
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105
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Section 17.15
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Calculations
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105
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Section 17.16
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USA PATRIOT Act
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106
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Section 17.17
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Tax Matters
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106
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Section 17.18
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Withholding Taxes
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106
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EXHIBITS
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Exhibit A
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Form of Note
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A-1
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Exhibit B
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Form of Supplemental Indenture
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B-1
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iii
INDENTURE, dated as of July 8, 2026, among BED BATH & BEYOND, INC., a Delaware corporation, as issuer (the “Company,” as more fully set
forth in Section 1.01), the Guarantors (as more fully set forth in Section 1.01), as guarantors, and COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION, as trustee (the “Trustee,” as more fully
set forth in Section 1.01).
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issuance of
its 5.00% Convertible Senior Notes due 2033 (the “Notes”), initially in an aggregate principal amount not to exceed $112,553,000, and in order to provide the terms and conditions upon which the Notes are to
be authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Indenture;
WHEREAS, the Guarantors have duly authorized the execution and delivery of this Indenture
and the Guarantees hereunder;
WHEREAS, the Form of Note, the certificate of authentication to be borne by each Note, the
Form of Notice of Conversion, the Form of Fundamental Change Repurchase Notice and the Form of Assignment and Transfer to be borne by the Notes are to be substantially in the forms hereinafter provided; and
WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in this Indenture provided, the valid, binding and legal obligations of the Company, and this Indenture a valid agreement according to its terms, have been
done and performed, and the execution of this Indenture and the issuance hereunder of the Notes have in all respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the
purchase and acceptance of the Notes by the Holders thereof, each of the Company and each Guarantor covenants and agrees with the Trustee for the equal and proportionate benefit of the respective Holders from time to time of the Notes (except as
otherwise provided below), as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions. The terms defined in this
Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section
1.01. The words “herein,” “hereof,” “hereunder” and words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article include the plural as well as
the singular. The word “or” shall not be interpreted to be exclusive. Unless the context otherwise requires, the words “includes,” “including” and words of similar import shall be deemed to be followed by the words “without limitation” wherever
used in this Indenture.
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“Acquisition Agreement” means that certain Agreement and Plan of Merger, dated as of April 1,
2026, by and among the Company, TCS Merger Sub, LLC and The Container Store Holdings, LLC.
“Additional Interest” means all amounts, if any, payable pursuant to any of Section 4.06(c), Section 4.06(d) and Section
6.03, as applicable.
“Additional Shares” shall have the meaning specified in Section 14.03(a).
“Affiliate” of any specified Person means any other Person directly or indirectly Controlling or Controlled by or under
direct or indirect common Control with such specified Person. Notwithstanding anything to the contrary herein, the determination of whether one Person is an “Affiliate” of another Person for purposes of this
Indenture shall be made based on the facts at the time such determination is made or required to be made, as the case may be, hereunder.
“Attribution Parties” means, with respect to any Holder, the following Persons, collectively: (a) any investment vehicle (including any
funds, feeder funds or managed accounts) currently, or from time to time after the Issue Date, directly or indirectly managed or advised by such Holder’s investment manager or any of its Affiliates or principals, (b) any Affiliate of such Holder,
(c) any Person acting or who could be deemed to be acting as a “group” (as that term is used in Section 13(d) of the Exchange Act and as defined in Rule 13d-5 thereunder) together with such Holder or any of the foregoing and (d) any other Persons
whose beneficial ownership of Common Stock would or could be aggregated with such Holder’s or any of such Holder’s Attribution Parties for purposes of Section 13(d) or Section 16 of the Exchange Act.
“Authorized Share Amendment Approval” means approval of the Company’s stockholders effective under applicable law, the rules of the New York
Stock Exchange (and any other exchange on which the Common Stock is listed) and the Company’s constituent documents sufficient to permit amendment of the Company’s amended and restated certificate of incorporation, as amended, to increase the
number of authorized shares of Common Stock to an amount that is sufficient, after taking into account all shares of Common Stock outstanding on the Business Day immediately preceding the date that the definitive proxy statement relating to such
amendment is filed with the Commission, as well as all shares of Common Stock reserved or necessary to satisfy the Company’s obligations as of such date to issue shares of Common Stock pursuant to the terms of any then outstanding convertible or
exchangeable securities or contractual obligations (other than the Notes), to settle the conversion of all then-outstanding Notes (assuming Physical Settlement) at the Conversion Rate then applicable, after giving effect to the maximum number of
shares of Common Stock that may be deliverable upon conversion pursuant to Section 14.03, in each case without giving effect to any Beneficial Ownership Limitations applicable to any Holder.
“Authorized Share Amendment Approval Date” means the date when the Authorized Share Amendment Approval has been obtained by the Company. To
avoid doubt, the Authorized Share Amendment Approval Date occurred on May 14, 2026.
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“Bankruptcy Law” means the U.S. Bankruptcy Code (Title 11 of the United States Code, as amended), or any other United States federal or
state bankruptcy, insolvency or similar law, fraudulent transfer or conveyance statute and any related case law.
“Beneficial Ownership Limitation” means, with respect to any attempted conversion by any Holder, the lesser of such Holder’s General
Beneficial Ownership Limitation and such Holder’s Specific Beneficial Ownership Limitation.
“Board of Directors” means the board of directors (or the functional equivalent thereof) of the Company or any duly
authorized committee of such board.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors, and to be in full force and effect on the date of such certification.
“Business Combination Event” shall have the meaning specified in Section 11.01.
“Business Day” means, with respect to any Note, any day other than a Saturday, a Sunday or a day on which the Federal
Reserve Bank of New York (or in connection with any payment, the place of payment) is authorized or required by law, regulation or executive order to close or be closed. Any days referenced within this Indenture that are not referred to as Business
Days shall be calendar days.
“Called Notes” with respect to any Notice of Redemption means (a) any and all Notes called for redemption pursuant to Article
16 and (b) if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Article 16 in any Optional Redemption, any and all Notes for which the Holder of any such Note (or any owner of a beneficial interest in
any such Global Note) is reasonably not able to determine, prior to the close of business on the 22nd Scheduled Trading Day immediately preceding the relevant Redemption Date, whether such Note or beneficial interest, as applicable, is to be
redeemed pursuant to such related Optional Redemption.
“Capital Stock” means, for any entity, any and all shares, interests, rights to purchase, warrants, options,
participations or other equivalents of or interests in (however designated) stock issued by that entity, but shall not include any debt securities convertible into or exchangeable for any securities otherwise constituting Capital Stock pursuant to
this definition.
“Capped Combination Settlement” means Combination Settlement where the Specified Dollar Amount is greater than or equal to the Capped
Combination Settlement Cash Amount.
“Capped Combination Settlement Cash Amount” means, on any Trading Day during the relevant Observation Period, the greater of (x) $1,000 and
(y) an amount equal to:
where,
| DCV | = | the Daily Conversion Value on such Trading Day; |
| DC | = | the Daily Share Cap on such Trading Day; and |
| VWAP | = | the Daily VWAP on such Trading Day. |
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“Cash Settlement” shall have the meaning specified in Section 14.02(a).
“CFC” means a Foreign Subsidiary that is a “controlled foreign corporation” as defined in Section 957 of the Internal Revenue Code, with
respect to which the Company or any Guarantor is a “United States shareholder” within the meaning of Section 951(b) of the Internal Revenue Code.
“Clause A Distribution” shall have the meaning specified in Section 14.04(c).
“Clause B Distribution” shall have the meaning specified in Section 14.04(c).
“Clause C Distribution” shall have the meaning specified in Section 14.04(c).
“close of business” means 5:00 p.m. (New York City time).
“Code” means the Internal Revenue Code of 1986, as amended.
“Combination Settlement” shall have the meaning specified in Section 14.02(a).
“Commission” means the U.S. Securities and Exchange Commission, or any successor thereto.
“Common Equity” of any Person means Capital Stock of such Person that is generally entitled (a) to vote in the election
of directors of such Person or (b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person.
“Common Stock” means the common stock of the Company, par value $0.001 per share, at the date of this Indenture,
subject to Section 14.07.
“Company” shall have the meaning specified in the first paragraph of this Indenture, and subject to the provisions of Article
11, shall include its successors and assigns.
“Company Order” means a written order of the Company signed by any of its Officers and delivered to the Trustee.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Conversion Agent” shall have the meaning specified in Section 4.02.
“Conversion Consideration” shall have the meaning specified in Section 14.12(a).
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“Conversion Date” shall have the meaning specified in Section 14.02(c).
“Conversion Obligation” shall have the meaning specified in Section 14.01(a).
“Conversion Price” means, as of any time, $1,000 divided by the Conversion
Rate as of such time.
“Conversion Rate” shall have the meaning specified in Section 14.01(a).
“Corporate Trust Office” means the designated corporate trust office of the Trustee at which at any time this Indenture
shall be administered, which office at the date hereof is located at 1505 Energy Park Drive, St. Paul, MN 55108, Attention: Corporate Trust Services – Bed Bath & Beyond, Inc. Administrator, or such other address as the Trustee may designate
from time to time by notice to the Holders and the Company, or the designated corporate trust office of any successor trustee (or such other address as such successor trustee may designate from time to time by notice to the Holders and the
Company).
“Custodian” means the Trustee, as custodian for The Depository Trust Company, with respect to the Global Notes, or any
successor entity thereto.
“Daily Conversion Value” means, for each of the 20 consecutive Trading Days during the relevant Observation Period,
1/20th of the product of (a) the Conversion Rate on such Trading Day and (b) the Daily VWAP for such Trading Day.
“Daily Measurement Value” means the Specified Dollar Amount (if any) divided by
20.
“Daily Settlement Amount,” for each of the 20 consecutive Trading Days during the relevant Observation Period, shall
consist of:
(a) cash in an amount equal to the lesser of (i) the Daily Measurement Value and (ii) the Daily Conversion Value on such Trading Day; and
(b) if the Daily Conversion Value on such Trading Day exceeds the Daily Measurement Value, a number of shares of Common Stock equal to (i)
the difference between the Daily Conversion Value and the Daily Measurement Value divided by (ii) the Daily VWAP for such Trading Day.
“Daily Share Cap” means an amount, rounded down to the nearest 1/10,000th of a share, equal to:
where,
| AC | = | the Exchange Cap; and |
| N | = | the Notional Aggregate Principal Amount. |
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“Daily VWAP” means, for any Trading Day, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on
Bloomberg page “BBBY <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day
(or if such volume-weighted average price is unavailable, the market value of one share of the Common Stock on such Trading Day reasonably determined, using a volume-weighted average method, by a nationally recognized independent investment banking
firm retained for this purpose by the Company). The “Daily VWAP” shall be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.
“Default” means any event that is, or after notice or passage of time, or both, would be, an Event of Default.
“Defaulted Amounts” means any amounts on any Note (including, without limitation, the Redemption Price, the Fundamental
Change Repurchase Price, principal and interest) that are payable but are not punctually paid or duly provided for.
“Default Interest” shall have the meaning specified in Section 2.03(c).
“Default Settlement Method” means, with respect to any conversion of Notes, (i) if the Conversion Date for such
conversion is before the Authorized Share Amendment Approval Date, Cash Settlement, (ii) if the Conversion Date for such conversion is on or after the Authorized Share Amendment Approval Date and before the NYSE Stockholder Approval Date, Capped
Combination Settlement, and (iii) in all other cases, Physical Settlement; provided, however, that the Company may, from time to time, change the Default Settlement Method to any other Settlement Method
that it is then permitted to elect by sending notice of the new Default Settlement Method to the Holders, Trustee and Conversion Agent; and provided, further that the Company may, by notice to Holders,
elect to irrevocably fix the Settlement Method to any Settlement Method that it is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes that it is then permitted to elect or
with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above any specific amount set forth in such election notice so long as such Specified Dollar Amount is an amount that it is then permitted to
elect, that will apply to all Note conversions with a Conversion Date that is on or after the date the Company sends such notice. 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 10.01(m).
“Deferred Additional Interest” shall have the meaning specified in Section 4.06(f)(i).
“Deferred Additional Interest Demand Request” shall have the meaning specified in Section 4.06(f)(i).
The terms “delivered,” “given”, “mailed”, “notify” or “sent” with respect to any notice to be given to a Holder pursuant to this Indenture, shall mean notice (x) given to the Depositary (or its designee) pursuant to
the standing instructions from the Depositary or its designee, including by electronic mail in accordance with accepted practices or procedures at the Depositary (in the case of a Global Note) or (y) mailed to such Holder by first class mail,
postage prepaid, at its address as it appears on the Note Register (in the case of a Physical Note), in each case, in accordance with Section 17.03. Notice so “given” shall be deemed to include any notice to be “mailed” or “delivered,” as
applicable, under this Indenture.
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“Depositary” means, with respect to each Global Note, the Person specified in Section 2.05(c) as the Depositary
with respect to such Notes, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter, “Depositary” shall mean or include such
successor.
“Designated Financial Institution” shall have the meaning specified in Section 14.12(a).
“Distributed Property” shall have the meaning specified in Section 14.04(c).
“Effective Date” shall have the meaning specified in Section 14.03(c), except that, as used in Section
14.04 and Section 14.05, “Effective Date” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, reflecting the
relevant share split or share combination, as applicable. For the avoidance of doubt, any alternative trading convention on the applicable exchange or market in respect of shares of the Common Stock under a separate ticker symbol or CUSIP number
will not be considered “regular way” for this purpose.
“Event of Default” shall have the meaning specified in Section 6.01.
“Ex-Dividend Date” means the first date on which shares of the Common Stock trade on the applicable exchange or in the
applicable market, regular way, without the right to receive the issuance, dividend or distribution in question from the Company or, if applicable, from the seller of Common Stock on such exchange or market (in the form of due bills or otherwise)
as determined by such exchange or market. For the avoidance of doubt, any alternative trading convention on the applicable exchange or market in respect of shares of the Common Stock under a separate ticker symbol or CUSIP number will not be
considered “regular way” for this purpose.
“Excess Shares” shall have the meaning specified in Section 14.13(d).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
“Exchange Cap” shall have the meaning specified in Section 14.02(k).
“Exchange Election” shall have the meaning specified in Section 14.12(a).
“Excluded Subsidiary” means any Subsidiary that is designated by the Company, at its option, as an “Excluded Subsidiary” pursuant to an
Officer’s Certificate delivered to the Trustee; provided, that the Company may only designate a Subsidiary as an Excluded Subsidiary only if and only for so long as such Subsidiary is:
(a) an Immaterial Subsidiary;
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(b) a joint venture which neither the Company nor any Guarantor Controls, provided that, such
joint venture shall be an Excluded Subsidiary only to the extent that the organizational documents or other agreements with other equity holders of such joint venture restrict, or do not permit, a Guarantee by such joint venture, and such
restriction or prohibition has not been waived or the Guarantee otherwise consented to by such other equity holders;
(c) subject to Section 13.06(a), not a Wholly-Owned Subsidiary and the guarantee of the Obligations is contractually prohibited
(provided such prohibition was not created for the purpose of evading the guarantee requirements of this Indenture) or would require the consent of any third-party holder of the Capital Stock thereof (unless and until such consent is obtained);
(d) contractually prohibited from providing a guarantee of the Obligations (unless and until consent is obtained and provided such
prohibition was not created for the purpose of evading the guarantee requirements of this Indenture);
(e) a Foreign Subsidiary or a CFC or a direct or indirect Subsidiary of a CFC;
(f) an FSHCO or a direct or indirect Subsidiary of an FSHCO; or
(g) any other Subsidiary with respect to which, the providing of a guarantee of the Obligations could reasonably be expected to result in
material adverse tax consequences (other than pursuant to Section 956 of the Internal Revenue Code) to the Company or any Subsidiary as determined in good faith by the Company;
provided that (i) in the case of each of immediately preceding clauses (e) and (f), such Subsidiary shall not
be an Excluded Subsidiary if the Company determines in good faith that such Subsidiary serving as a Guarantor could not reasonably be expected to cause an adverse tax cost to the Company or any Guarantor which outweighs the benefits to the
Holders, (ii) in no instance shall the Company be permitted to designate a Subsidiary as an Excluded Subsidiary (and no previously designated Excluded Subsidiary shall remain an Excluded Subsidiary) if, as of the date of the most recent financial
statements required to be delivered for any fiscal quarter pursuant to this Indenture, such Subsidiary when taken together with all Excluded Subsidiaries has (a) assets in excess of 20.0% of consolidated total assets of the Company and its
Subsidiaries or (b) revenues for the period of four (4) consecutive fiscal quarters ending on such date in excess of 20.0% of the consolidated revenues of the Company and its Subsidiaries for such period and (iii) in no instance shall the Company
be permitted to designate a Subsidiary as an Excluded Subsidiary (and no previously designated Excluded Subsidiary shall remain an Excluded Subsidiary) if such Subsidiary holds any Material Asset.
For the purposes of this definition, as of the Issue Date, each of The Brand House Collective, Inc., Kirkland’s Stores, Inc., Kirkland’s Texas, LLC, Kirkland’s DC, Inc., Overstock
Ireland Limited, Zion Peaks Solutions Inc. and Medici Ventures, L.P. shall be deemed to be designated by the Company as Excluded Subsidiaries.
“Exempted Fundamental Change” shall have the meaning specified in Section 15.02(f).
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“Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated willing seller in an arm’s length transaction
not involving distress or necessity of either party, determined in good faith by the Board of Directors of the Company.
“First Stockholder Approval Meeting” means a special meeting of the common stockholders of the Company duly noticed, held and convened no
later than three months after the Issue Date for the purpose of seeking the Requisite Stockholder Approvals, if the Requisite Stockholder Approval Date has not occurred prior to the date three months after the Issue Date.
“Foreign Subsidiary” means each Subsidiary of the Company that is (a) organized under the laws of any jurisdiction other than the United
States or any state thereof or the District of Columbia or (b) organized in or under the laws of any U.S. possession or territory.
“Form of Assignment and Transfer” means the “Form of Assignment and Transfer” attached as Attachment 3 to the Form of Note.
“Form of Fundamental Change Repurchase Notice” means the “Form of Fundamental Change Repurchase Notice” attached as Attachment 2 to the Form of Note.
“Form of Note” means the “Form of Note” attached hereto as Exhibit A.
“Form of Notice of Conversion” means the “Form of Notice of Conversion” attached as Attachment 1 to the Form of Note.
“Free Conversion Date” means the earliest to occur of (a) the Requisite Stockholder Approval Date, (b) the date of the Company’s annual
meeting of common stockholders held in calendar year 2028 and (c) June 1, 2028.
“Free Trade Date” means, with respect to any Note, the date that is one year after the Last Original Issuance 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 Issuance 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 identified by a “unrestricted” 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 2.05(c).
“FSHCO” means a Subsidiary that owns (directly or indirectly) no material assets other than Capital Stock (or Capital Stock and debt
interests) of one or more CFCs or other FSHCOs.
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“Fundamental Change” shall be deemed to have occurred at the time after the Notes are originally issued if any of the
following occurs:
(a) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company, its Wholly Owned
Subsidiaries and the employee benefit plans of the Company and its Wholly Owned Subsidiaries, files a Schedule TO (or any successor schedule, form or report) or any schedule, form or report under the Exchange Act that discloses that such “person”
or “group” has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of shares of Common Stock representing more than 50% of the voting power of the Common Stock;
(b) the consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a
subdivision or combination or solely a change in par value) as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets; (B) any share exchange, consolidation or merger of the
Company pursuant to which the Common Stock will be converted into cash, securities or other property or assets; or (C) any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the
consolidated assets of the Company and its Subsidiaries, taken as a whole, to any Person other than one or more of the Company’s direct or indirect Wholly Owned Subsidiaries; provided, however, that a
transaction described in clause (A) or clause (B) in which the holders of all classes of the Company’s Common Equity immediately prior to such transaction own, directly or indirectly, more than 50% of all classes of Common Equity of the
continuing or surviving corporation or transferee or the parent thereof immediately after such transaction in substantially the same proportions (relative to each other) as such ownership immediately prior to such transaction shall not be a
Fundamental Change pursuant to this clause (b);
(c) the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; or
(d) the Common Stock (or other Common Equity underlying the Notes) ceases to be listed or quoted on any of The New York Stock Exchange, the
Nasdaq Global Select Market or the Nasdaq Global Market (or any of their respective successors);
provided, however, that a transaction or transactions described in
clause (b) above shall not constitute a Fundamental Change, if at least 90% of the consideration received or to be received by the common stockholders of the Company, excluding cash payments for fractional shares and cash payments made in respect
of dissenters’ appraisal rights, in connection with such transaction or transactions consists of corporate Common Equity interests that are listed or quoted on any of The New York Stock Exchange, the Nasdaq Global Select Market or the Nasdaq
Global Market (or any of their respective successors) or will be so listed or quoted when issued or exchanged in connection with such transaction or transactions and as a result of such transaction or transactions the Notes become convertible
into such consideration, excluding cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights (subject to the provisions of Section 14.02(a)). If any transaction in which the Common Stock is
replaced by the securities of another entity occurs, following completion of any related Make-Whole Fundamental Change Period (or, in the case of a transaction that would have been a Fundamental Change or a Make-Whole Fundamental Change but for
the proviso immediately following clause (d) of this definition, following the effective date of such transaction) references to the Company in this definition shall instead be references to such other entity.
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For purposes of this definition of “Fundamental Change,” any transaction or series of related transactions that constitute a Fundamental Change pursuant to both clause (a) and clause (b) of this
definition (determined without regard to the proviso in clause (b) of this definition) shall be deemed a Fundamental Change solely under clause (b) of this definition (subject to such proviso).
“Fundamental Change Company Notice” shall have the meaning specified in Section 15.02(c).
“Fundamental Change Repurchase Date” shall have the meaning specified in Section 15.02(a).
“Fundamental Change Repurchase Notice” shall have the meaning specified in Section 15.02(b)(i).
“Fundamental Change Repurchase Price” shall have the meaning specified in Section 15.02(a).
“General Beneficial Ownership Limitation” means (i) with respect to any attempted conversion by any TCS Holder, 9.9% of the shares of Common
Stock outstanding immediately after giving effect to such conversion, and (ii) with respect to any attempted conversion by any Holder who is not a TCS Holder, 4.9% of the shares of Common Stock outstanding immediately after giving effect to such
conversion.
“Global Note” shall have the meaning specified in Section 2.05(b).
“Guarantee” means the guarantee by each Guarantor of all or any part of the Obligations under this Indenture and the Notes for the benefit
of the Holders pursuant to Article 13.
“Guaranteed Obligations” shall have the meaning specified in Section 13.01(a).
“Guarantor” means any existing or future Subsidiary of the Company (other than any Excluded Subsidiary) from time to time that provides a
Guarantee; provided that upon release or discharge of such Subsidiary from its Guarantee in accordance with this Indenture, such Subsidiary shall cease to be a Guarantor.
“Holder,” as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), means (a) any Person in whose name at
the time a particular Note is registered on the Note Register and (b) with respect to Section 4.06(f), Section 4.11, Section 14.13 and the definitions of the terms Attribution Parties, Beneficial Ownership Limitation,
General Beneficial Ownership Limitation and Specific Beneficial Ownership Limitation, each indirect holder or beneficial owner of such Note.
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“Immaterial Subsidiary” means any Subsidiary of the Company that, as of the date of the most recent financial statements required to be
delivered for any fiscal quarter pursuant to this Indenture, does not have, either individually or when taken together with all other Immaterial Subsidiaries, (a) assets in excess of 10.0% of consolidated total assets of the Company and its
Subsidiaries or (b) revenues for the period of four (4) consecutive fiscal quarters ending on such date in excess of 10.0% of the consolidated revenues of the Company and its Subsidiaries for such period.
“Indenture” means this instrument as originally executed or, if amended or supplemented as herein provided, as so
amended or supplemented.
“Interest Payment Date” means (i) each April 1 and October 1 of each year, beginning on April 1, 2027, and (ii) the
Maturity Date.
“Internal Revenue Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Issue Date” means July 8, 2026.
“Last Original Issuance Date” means (a) with respect to any Notes issued pursuant to the Acquisition 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 2.10, 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 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 Common Stock (or any other security for which a closing sale price must be
determined) on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that
date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock (or such other security) is traded. If the Common Stock (or such other security) is not listed for trading on a
U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall be the last quoted bid price for the Common Stock (or such other security) in the over-the-counter
market on the relevant date as reported by OTC Markets Group Inc. or a similar organization. If the Common Stock (or such other security) is not so quoted, the “Last Reported Sale Price” shall be the average
of the mid-point of the last bid and ask prices for the Common Stock (or such other security) on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose. The
“Last Reported Sale Price” shall be determined without regard to after-hours trading or any other trading outside of regular trading session hours.
“Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental Change (as defined above
and determined after giving effect to any exceptions to or exclusions from such definition, but without regard to the proviso in clause (b) of the definition thereof).
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“Make-Whole Fundamental Change Period” shall have the meaning specified in Section 14.03(a).
“Market Disruption Event” means, for the purposes of determining amounts due upon conversion (a) a failure by the
primary U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted for trading to open for trading during its regular trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City
time, on any Scheduled Trading Day for the Common Stock for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted
by the relevant stock exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock.
“Material Assets” means any assets, including intellectual property, owned by the Company or any of its Subsidiaries that is material to the
business, operations, assets or financial condition of the Company and its Subsidiaries, taken as a whole, as reasonably determined by the Company in good faith.
“Maturity Date” means July 8, 2033.
“Note” or “Notes” shall have the meaning specified in the first paragraph of
the recitals of this Indenture.
“Note Register” shall have the meaning specified in Section 2.05(a).
“Note Registrar” shall have the meaning specified in Section 2.05(a).
“Notice of Conversion” shall have the meaning specified in Section 14.02(b).
“Notice of Election to Pay Deferred Additional Interest” shall have the meaning specified in Section 4.06(f)(i).
“Notice of Redemption” shall have the meaning specified in Section 16.03(a).
“Notional Aggregate Principal Amount” means $112,553,000.
“NYSE Stockholder Approval” means approval of the Company’s stockholders effective under applicable law, the rules of the New York Stock Exchange (and any other exchange on which the
Common Stock is listed) and the Company’s constituent documents sufficient to permit the Company to issue more than 19.99% of its outstanding shares of Common Stock in satisfaction of the Conversion Obligations, and to settle all Conversion
Obligations by means of Physical Settlement, in each case in compliance with New York Stock Exchange Listed Company Rule 312, provided that the approval in this clause (b) will be deemed to be obtained
if, due to any amendment or binding change in the interpretation of the applicable listing standards of the New York Stock Exchange, such approval is no longer required for such issuance of Common Stock and such settlement of all conversions of
the Notes by Physical Settlement, 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 14.03.
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“NYSE Stockholder Approval Date” means the date when the NYSE Stockholder Approval has been obtained by the Company.
“Obligations” means all unpaid principal of and accrued and unpaid interest on the Notes, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations and indebtedness (including interest and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such
proceeding) of the Company or any of the Guarantors, individually or collectively, existing on the effective date of this Indenture or arising thereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured,
liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, in each case of the foregoing, arising or incurred under this Indenture or in respect of any of the Notes issued or redemption or other
obligations incurred thereunder.
“Observation Period” with respect to any Note surrendered for conversion means: (i) subject to clause (ii), if the
relevant Conversion Date occurs prior to April 8, 2033, the 20 consecutive Trading Day period beginning on, and including, the second Trading Day immediately succeeding such Conversion Date; (ii) with respect to any Called Notes, if the relevant
Conversion Date occurs on or after the date of the Company’s issuance of the applicable Notice of Redemption with respect to such Called Notes and prior to the close of business on the second Business Day immediately preceding the relevant
Redemption Date with respect to such Notice of Redemption, the 20 consecutive Trading Days beginning on, and including, the 22nd Scheduled Trading Day immediately preceding such Redemption Date; and (iii) subject to clause (ii), if the relevant
Conversion Date occurs on or after April 8, 2033, the 20 consecutive Trading Days beginning on, and including, the 21st Scheduled Trading Day immediately preceding the Maturity Date.
“Officer” means, with respect to the Company or any Guarantor, the Chairman of the Board of Directors, a Chief
Executive Officer, a President, a Chief Financial Officer, a Chief Operating Officer, any Executive Vice President, any Senior Vice President, any Vice President, the Treasurer or any Assistant Treasurer, the Controller or any Assistant Controller,
or the Secretary or any Assistant Secretary of the Company or such Guarantor, as applicable.
“Officer’s Certificate,” when used with respect to the Company or any Guarantor, means a certificate that is delivered
to the Trustee and that is signed by any Officer of the Company or such Guarantor, as applicable. Each such certificate shall include the statements provided for in Section 17.05 if and to the extent required by the provisions of such
Section. The Officer giving an Officer’s Certificate pursuant to Section 4.08 shall be the principal executive, financial or accounting officer of the Company.
“open of business” means 9:00 a.m. (New York City time).
“Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the
Company or other counsel who is reasonably acceptable to the Trustee, which opinion may contain customary exceptions and qualifications as to the matters set forth therein, that is delivered to the Trustee. Each such opinion shall include the
statements provided for in Section 17.05 if and to the extent required by the provisions of such Section 17.05.
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“Optional Redemption” shall have the meaning specified in Section 16.02.
“outstanding,” when used with reference to Notes, shall, subject to the provisions of Section 8.04, mean, as of
any particular time, all Notes authenticated and delivered by the Trustee under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or accepted by the Trustee for cancellation;
(b) Notes, or portions thereof, that have become due and payable and in respect of which monies in the necessary amount shall have been
deposited in trust with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent);
(c) Notes that have been paid pursuant to Section 2.06 or Notes in lieu of which, or in substitution for which, other Notes shall
have been authenticated and delivered pursuant to the terms of Section 2.06 unless proof satisfactory to the Trustee is presented that any such Notes are held by protected purchasers in due course;
(d) Notes converted pursuant to Article 14 and required to be cancelled pursuant to Section 2.08; and
(e) Notes redeemed pursuant to Article 16.
“Paying Agent” shall have the meaning specified in Section 4.02.
“Person” means an individual, a corporation, a limited liability company, an association, a partnership, a joint
venture, a joint stock company, a trust, an unincorporated organization or a government or an agency or a political subdivision thereof.
“Physical Notes” means permanent certificated Notes in registered form issued in minimum denominations of $1,000
principal amount and integral multiples thereof.
“Physical Settlement” shall have the meaning specified in Section 14.02(a).
“Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same debt as
that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.06 in lieu of or in exchange for a mutilated, lost, destroyed or stolen Note shall be deemed to evidence
the same debt as the mutilated, lost, destroyed or stolen Note that it replaces.
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“Qualified Successor Entity” means, with respect to a Business Combination Event, a corporation; provided, however, that (i) if such Business Combination Event is an Exempted Fundamental Change, then a limited liability company, limited partnership or other similar
entity will also constitute a Qualified Successor Entity with respect to such Business Combination Event; and (ii) a limited liability company or limited partnership that is the resulting, surviving or transferee person of such Business Combination
Event will also constitute a Qualified Successor Entity with respect to such Business Combination Event, provided that, in the case of this clause (ii), (1) if such limited liability company or limited
partnership is not treated as a corporation or an entity disregarded as separate from a corporation, in each case for U.S. federal income tax purposes, (x) 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 U.S. Internal Revenue Code of 1986, as amended for holders or beneficial owners of the Notes and (y) such limited liability company or limited
partnership is a direct or indirect, wholly owned subsidiary of a corporation duly organized and existing under the laws of the United States of America, any State thereof or the District of Columbia; (2) such Business Combination Event constitutes
a Share Exchange Event whose reference property consists solely of any combination of U.S. dollars and shares of common stock or other corporate common equity interests of a corporation described in clause (1)(y); and (3) if such limited liability
company or limited partnership is disregarded as separate from its owner for U.S. federal income tax purposes, its regarded owner for those purposes is an entity described in clause (1)(y).
“Record Date” means, with respect to any dividend, distribution or other transaction or event in which the holders of
Common Stock (or other applicable security) have the right to receive any cash, securities or other property or in which the Common Stock (or such other security) is exchanged for or converted into any combination of cash, securities or other
property, the date fixed for determination of holders of the Common Stock (or such other security) entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors, by statute, contract or
otherwise).
“Redemption Cash Settlement Election” shall have the meaning specified in Section 16.02.
“Redemption Date” shall have the meaning specified in Section 16.03(a).
“Redemption Notice Date” shall have the meaning specified in Section 16.02.
“Redemption Price” means, for any Notes to be redeemed pursuant to Section 16.02, 100% of the principal amount
of such Notes, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date (unless the Redemption Date falls after a Regular Record Date but on or prior to the immediately succeeding
Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid by the Company to Holders of record of such Notes as of the close of business on such Regular Record Date, and the Redemption Price will be equal to
100% of the principal amount of such Notes).
“Reference Property” shall have the meaning specified in Section 14.07(a).
“Registration Rights Agreement” means that certain Registration Rights and Lock-Up Agreement, dated as of July 8, 2026, by and among the Company, each person listed under the header “Initial Holders” on the signature pages thereto and each person who becomes a party thereto.
“Regular Record Date,” with respect to any Interest Payment Date, means the March 15 or September 15 (whether or not
such day is a Business Day) immediately preceding the applicable April 1 or October 1 Interest Payment Date, respectively, or the June 22 (whether or not such day is a Business Day) immediately preceding the Interest Payment Date on the Maturity
Date.
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“Reported Outstanding Share Number” shall have the meaning specified in Section 14.13(c).
“Reporting Event of Default” shall have the meaning specified in Section 6.03.
“Requisite Stockholder Approvals” means (a) the Authorized Share Amendment Approval and (b) the NYSE Stockholder Approval.
“Requisite Stockholder Approval Date” means the date when all of the Requisite Stockholder Approvals have been obtained by the Company.
“Resale Restriction Termination Date” shall have the meaning specified in Section 2.05(c).
“Responsible Officer” means, when used with respect to the Trustee, any officer within the corporate trust department
of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee having direct responsibility for the administration of this Indenture, or to whom
any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“Restricted Securities” shall have the meaning specified in Section 2.05(c).
“Restrictive Notes Legend” shall have the meaning specified in Section 2.05(c).
“Rule 144” means Rule 144 as promulgated under the Securities Act.
“Rule 144A” means Rule 144A as promulgated under the Securities Act.
“Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the principal U.S. national or regional
securities exchange or market on which the Common Stock is listed or admitted for trading. If the Common Stock is not so listed or admitted for trading, “Scheduled Trading Day” means a Business Day.
“Second Stockholder Approval Meeting” means a special meeting of the common stockholders of the Company duly noticed, held and convened no
later than six months after the Issue Date for the purpose of seeking the Requisite Stockholder Approvals, if the Requisite Stockholder Approval Date has not occurred prior to the date six months after the Issue Date.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Settlement Amount” has the meaning specified in Section 14.02(a)(iv).
“Settlement Method” means, with respect to any conversion of Notes, Physical Settlement, Cash Settlement or Combination
Settlement, as elected (or deemed to have been elected) by the Company; provided that the Company shall not be permitted to use (i) Capped Combination Settlement until the Authorized Share Amendment
Approval Date or (ii) Physical Settlement or Combination Settlement (other than Capped Combination Settlement) until the Requisite Stockholder Approval Date.
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“Settlement Method Election Deadline” shall have the meaning specified in Section 14.02(a)(iii)(A).
“Settlement Notice” has the meaning specified in Section 14.02(a)(iii)(A).
“Share Exchange Event” shall have the meaning specified in Section 14.07(a).
“Significant Subsidiary” means a Subsidiary of the Company that meets the definition of “significant subsidiary” in
Article 1, Rule 1-02 of Regulation S-X promulgated by the Commission.
“Specific Beneficial Ownership Limitation” means, with respect to any conversion by any Holder (but not with respect to any conversion by
any other Holder), a percentage of the shares of Common Stock outstanding immediately after giving effect to such conversion as specified by such Holder in a written notice delivered to the Company prior to the Conversion Date for such conversion;
provided that (i) such percentage must in all cases be less than the General Beneficial Ownership Limitation applicable to such conversion by such Holder, (ii) any increase in such Holder’s Specific Beneficial Ownership Limitation shall be
effective no earlier than the 61st day after the applicable written notice reflecting such increase is delivered to the Company and (iii) any decrease in such Holder’s Specific Beneficial Ownership Limitation shall be effective as specified in the
applicable written notice reflecting such decrease.
“Specified Dollar Amount” means the maximum cash amount per $1,000 principal amount of Notes to be received upon
conversion as specified in the Settlement Notice (or deemed specified as provided in Section 14.02(a)(iii)) related to any converted Notes.
“Spin-Off” shall have the meaning specified in Section 14.04(c).
“Stated Interest Rate” means 5.00% per annum; provided, however, that (a) if the Requisite Stockholder Approvals are not obtained on or prior to the date of the First Stockholder
Approval Meeting (or, if earlier, the date that is three months after the Issue Date), the Stated Interest Rate shall increase to 10.00% per annum during the period from, and including, the date of the First Stockholder Approval Meeting (or, if
earlier, the date that is three months after the Issue Date) to, but excluding, the earlier of (i) the date of the Second Stockholder Approval Meeting (or, if earlier, the date that is six months after the Issue Date) and (ii) the Requisite
Stockholder Approval Date; and (b) if the Requisite Stockholder Approvals are not obtained on or prior to the date of the Second Stockholder Approval Meeting (or, if earlier, the date that is six months after the Issue Date), the Stated Interest
Rate shall increase to 12.00% per annum during the period from, and including, the date of the Second Stockholder Approval Meeting (or, if earlier, the date that is six months after the Issue Date) to, but excluding, the Requisite Stockholder
Approval Date. For the avoidance of doubt, upon receipt of the Requisite Stockholder Approvals, the Stated Interest Rate shall immediately return to 5.00% per annum at all times from, and including, the Requisite Stockholder Approval Date.
“Stock Price” shall have the meaning specified in Section 14.03(c).
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“Subsidiary” means, with respect to any Person, any corporation, association, partnership or other business entity of
which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, general
partners or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person.
“Successor Entity” shall have the meaning specified in Section 11.01(a).
“Successor Guarantor” shall have the meaning specified in Section 13.03(a).
“TCS Holder” means each “Securityholder” as such term is defined in the Acquisition Agreement and each “New Loan Creditor” as such term is
defined in the Acquisition Agreement.
“Trading Day” means, except for determining amounts due upon conversion as set forth below, a day on which (i) trading
in the Common Stock (or other security for which a closing sale price must be determined) generally occurs on the New York Stock Exchange or, if the Common Stock (or such other security) is not then listed on the New York Stock Exchange, on the
principal other U.S. national or regional securities exchange on which the Common Stock (or such other security) is then listed or, if the Common Stock (or such other security) is not then listed on a U.S. national or regional securities exchange,
on the principal other market on which the Common Stock (or such other security) is then traded and (ii) a Last Reported Sale Price for the Common Stock (or closing sale price for such other security) is available on such securities exchange or
market; provided that if the Common Stock (or such other security) is not so listed or traded, “Trading Day” means a Business Day; and provided, further, that for purposes of determining amounts due upon conversion only, “Trading Day” means a day on which (x) there is no Market
Disruption Event and (y) trading in the Common Stock generally occurs on the New York Stock Exchange or, if the Common Stock is not then listed on the New York Stock Exchange, on the principal other U.S. national or regional securities exchange on
which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then listed or admitted for trading, except that if the
Common Stock is not so listed or admitted for trading, “Trading Day” means a Business Day.
“transfer” shall have the meaning specified in Section 2.05(c).
“Trigger Event” shall have the meaning specified in Section 14.04(c).
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at the date of execution of
this Indenture; provided, however, that in the event the Trust Indenture Act of 1939 is amended after the date hereof, the term “Trust Indenture Act” shall mean, to
the extent required by such amendment, the Trust Indenture Act of 1939, as so amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of
this Indenture until a successor trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder.
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“unit of Reference Property” shall have the meaning specified in Section 14.07(a).
“Valuation Period” shall have the meaning specified in Section 14.04(c).
“Wholly Owned Subsidiary” means, with respect to any Person, any Subsidiary of such Person, except that, solely for
purposes of this definition, the reference to “more than 50%” in the definition of “Subsidiary” shall be deemed replaced by a reference to “100%,” the calculation of which shall exclude nominal amounts of the voting power of shares of Capital Stock
or other interests in the relevant Subsidiary not held by such Person to the extent required to satisfy local minority interest requirements outside of the United States.
Section 1.02 References to Interest. Unless the context otherwise requires, any
reference to interest on, or in respect of, any Note in this Indenture shall be deemed to include Additional Interest and Deferred Additional Interest (if, in such context, Additional Interest or Deferred Additional Interest is, was or would be
payable pursuant to any of Section 4.06(c), Section 4.06(d), Section 4.06(f) and Section 6.03) and Default Interest. Unless the context otherwise requires, any express mention of Additional Interest, Deferred
Additional Interest, Default Interest or interest in any provision hereof shall not be construed as excluding Additional Interest, Deferred Additional Interest, Default Interest or interest in those provisions hereof where such express mention is
not made.
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION,
REGISTRATION AND EXCHANGE OF NOTES
Section 2.01 Designation and Amount. The Notes shall be designated as the “5.00%
Convertible Senior Notes due 2033.” The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is initially limited to $112,553,000, subject to Section 2.10 and except for Notes authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu of other Notes to the extent expressly permitted hereunder.
Section 2.02 Form of Notes. The Notes and the Trustee’s certificate of
authentication to be borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, the terms and provisions of which shall constitute, and are hereby expressly
incorporated in and made a part of this Indenture. To the extent applicable, the Company, each Guarantor and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. In
the case of any conflict between this Indenture and a Note, the provisions of this Indenture shall control and govern to the extent of such conflict.
Any Global Note may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Indenture as may be
required by the Custodian or the Depositary, or as may be required to comply with any applicable law or any regulation thereunder or with the rules and regulations of any securities exchange or automated quotation system upon which the Notes may be
listed or traded or designated for issuance or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Notes are subject.
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Any of the Notes may have such letters, numbers or other marks of identification and such notations, legends or endorsements as the Officer executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, or to conform to usage or to indicate any special limitations or restrictions to which any particular Notes are
subject.
Each Global Note shall represent such principal amount of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be increased or reduced to reflect redemptions, repurchases, cancellations,
conversions, transfers or exchanges permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in such manner and upon instructions given by the Holder of such Notes in accordance with this Indenture. Payment of principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of,
and accrued and unpaid interest on, a Global Note shall be made to the Holder of such Note on the date of payment, unless a record date or other means of determining Holders eligible to receive payment is provided for herein.
Section 2.03 Date and Denomination of Notes; Payments of Interest and Defaulted Amounts. i)
The Notes shall be issuable in registered form without coupons in minimum denominations of $1,000 principal amount and integral multiples thereof. Each Note shall be dated the date of its authentication and shall bear interest from the date
specified on the face of such Note. Each Note shall bear interest on each day at the Stated Interest Rate applicable to such day. Accrued interest on the Notes shall be computed on the basis of a 360-day year composed of twelve 30-day months and,
for partial months, on the basis of the number of days actually elapsed in a 30-day month.
(b) The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register
at the close of business on any Regular Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date. The principal amount of any Note (x) in the case of any Physical Note,
shall be payable at the office or agency of the Company designated by the Company for such purposes in the contiguous United States of America, which shall initially be the Corporate Trust Office and (y) in the case of any Global Note, shall be
payable by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Company shall pay or cause the Paying Agent to pay interest (i) on any Physical Notes (A) to Holders holding Physical Notes having an
aggregate principal amount of $5,000,000 or less, by check mailed to the Holders of these Notes at their address as it appears in the Note Register and (B) to Holders holding Physical Notes having an aggregate principal amount of more than
$5,000,000, either by check mailed to each such Holder or, upon written application by such a Holder to the Note Registrar not later than the relevant Regular Record Date, by wire transfer in immediately available funds to that Holder’s account
within the United States if such Holder has provided the Company, the Trustee or the Paying Agent (if other than the Trustee) with the requisite information necessary to make such wire transfer, which application shall remain in effect until the
Holder notifies, in writing, the Note Registrar to the contrary or (ii) on any Global Note by wire transfer of immediately available funds to the account of the Depositary or its nominee.
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(c) Any Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant payment
date but shall accrue interest (“Default Interest”) per annum at the then-applicable Stated Interest Rate, subject to the enforceability thereof under applicable law, from, and including, such relevant
payment date, and such Defaulted Amounts together with such interest thereon shall be paid by the Company, at its election in each case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted Amounts (and any
Default Interest thereon) to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a special record date for the payment of such Defaulted Amounts (and any Default Interest
thereon), which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of the Defaulted Amounts (and any Default Interest thereon) proposed to be paid on each Note and the date of the proposed
payment (which shall be not less than 25 days after the receipt by the Trustee of such notice, unless the Trustee shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount to be paid in respect of such Defaulted Amounts (and any Default Interest thereon) or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such Defaulted Amounts (and any Default Interest thereon) as provided in this Section 2.03(c)(i). Thereupon the Company shall fix a special record date for the payment of such
Defaulted Amounts (and any Default Interest thereon) which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment, and not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment (unless the Trustee shall consent to an earlier date). The Company shall promptly notify the Trustee in writing of such special record date and the Trustee, in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Amounts (and any Default Interest thereon) and the special record date therefor to be delivered to each Holder not less than 10 days prior to such special record date. Notice of the proposed payment of such
Defaulted Amounts (and any Default Interest thereon) and the special record date therefor having been so delivered, such Defaulted Amounts (and any Default Interest thereon) shall be paid to the Persons in whose names the Notes (or their
respective Predecessor Notes) are registered at the close of business on such special record date and shall no longer be payable pursuant to Section 2.03(c)(ii).
(ii) The Company may make payment of any Defaulted Amounts in any other lawful
manner not inconsistent with the requirements of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, and upon such notice as may be required by such exchange or automated quotation
system, if, after written notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
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(iii) The Trustee shall not at any time be under any duty or responsibility to any
Holder to determine the Defaulted Amounts (and any Default Interest thereon).
Section 2.04 Execution, Authentication and Delivery of Notes. The Notes shall be
signed in the name and on behalf of the Company by the manual or facsimile signature of one of the Officers of the Company.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with such Company Order shall authenticate and deliver such Notes, without any further action by the Company hereunder; provided that, subject to Section 17.05, the Trustee shall be entitled to receive an Officer’s Certificate and an Opinion of Counsel of the Company with respect to the issuance, authentication and
delivery of such Notes.
Only such Notes as shall bear thereon a certificate of authentication substantially in the form set forth on the Form of Note, executed manually by an authorized signatory of the
Trustee (or an authenticating agent appointed by the Trustee as provided by Section 17.10), shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee (or such an
authenticating agent) upon any Note executed by the Company shall be conclusive evidence that the Note so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
In case any Officer of the Company who shall have signed any of the Notes shall cease to be such Officer before the Notes so signed shall have been authenticated and delivered by
the Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or disposed of as though the person who signed such Notes had not ceased to be such Officer of the Company; and any Note may be signed on behalf
of the Company by such persons as, at the actual date of the execution of such Note, shall be the Officers of the Company, although at the date of the execution of this Indenture any such person was not such an Officer.
Section 2.05 Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary. ii) The Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office or in any other office or agency of the Company designated
pursuant to Section 4.02, the “Note Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes.
Such register shall be in written form or in any form capable of being converted into written form within a reasonable period of time. The Trustee is hereby initially appointed the “Note Registrar” for the
purpose of registering Notes and transfers of Notes as herein provided. The Company may appoint one or more co-Note Registrars in accordance with Section 4.02.
Upon surrender for registration of transfer of any Note to the Note Registrar or any co-Note Registrar, and satisfaction of the requirements for such transfer set forth in this Section
2.05, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denominations and of a like aggregate principal amount and
bearing such restrictive legends as may be required by this Indenture.
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Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at any such office or
agency maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes that the Holder making the exchange is
entitled to receive, bearing registration numbers not contemporaneously outstanding.
All Notes presented or surrendered for registration of transfer or for exchange, redemption, repurchase or conversion shall (if so required by the Company, the Trustee, the Note
Registrar or any co-Note Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and duly executed, by the Holder thereof or its attorney-in-fact duly authorized in
writing.
No service charge shall be imposed by the Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent for any exchange or registration of transfer of Notes,
but the Company and Trustee may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a result of the name of the Holder of new Notes issued upon such exchange
or registration of transfer being different from the name of the Holder of the old Notes surrendered for exchange or registration of transfer.
None of the Company, the Trustee, the Note Registrar or any co-Note Registrar shall be required to exchange for other Notes or register a transfer of (i) any Notes surrendered for
conversion or, if a portion of any Note is surrendered for conversion, such portion thereof surrendered for conversion, (ii) any Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with Article 15
or (iii) any Notes selected for redemption in accordance with Article 16, except the unredeemed portion of any Note being redeemed in part.
All Notes issued upon any registration of transfer or exchange of Notes in accordance with this Indenture shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer or exchange.
The transferor shall also provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting obligations,
including without limitation any cost basis reporting obligations under Internal Revenue Code Section 6045. The Trustee may rely on the information provided to it and shall have no responsibility to verify or ensure the accuracy of such
information.
(b) So long as the Notes are eligible for book-entry settlement with the Depositary, unless
otherwise required by law, subject to the fourth paragraph from the end of Section 2.05(c) all Notes shall be represented by one or more Notes in global form (each, a “Global Note”) registered in
the name of the Depositary or the nominee of the Depositary. Each Global Note shall bear the legend required on a Global Note set forth in Exhibit A hereto. The transfer and exchange of beneficial
interests in a Global Note that does not involve the issuance of a Physical Note shall be effected through the Depositary (but not the Trustee or the Custodian) in accordance with this Indenture (including the restrictions on transfer set forth
herein) and the procedures of the Depositary therefor.
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(c) Every Note that bears or is required under this Section 2.05(c) to bear the Restrictive
Notes Legend (together with any Common Stock issued upon conversion of the Notes that is required to bear the legend set forth in Section 2.05(d), collectively, the “Restricted Securities”) shall be
subject to the restrictions on transfer set forth in this Section 2.05(c) (including the Restrictive Notes Legend), unless such restrictions on transfer shall be eliminated or otherwise waived by written consent of the Company, and the
Holder of each such Restricted Security, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in this Section 2.05(c) and Section 2.05(d), the term “transfer”
encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.
Until the date (the “Resale Restriction Termination Date”) that is the later of (1) the Free Trade Date of the Notes, or such shorter period
of time as permitted by Rule 144 or any successor provision thereto, and (2) such later date, if any, as may be required by applicable law, any certificate evidencing such Note (and all securities issued in exchange therefor or substitution
thereof, other than Common Stock, if any, issued upon conversion thereof, which shall bear the legend set forth in Section 2.05(d), if applicable) shall bear a legend in substantially the following form (the “Restrictive Notes Legend”) (unless such Notes have been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such
transfer, or sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise agreed by the Company in writing, with notice thereof to the Trustee):
THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED
INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES FOR THE BENEFIT OF BED BATH & BEYOND, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY, IF ANY OR ANY BENEFICIAL INTEREST HEREIN OR THEREIN
PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUANCE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
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(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE
SECURITIES ACT, OR
(C) TO A PERSON REASONABLY BELIEVED TO BE A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR
(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS,
CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE
AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
No transfer of any Note prior to the Resale Restriction Termination Date will be registered by the Note Registrar unless the applicable box on the Form of Assignment and Transfer
has been checked.
Any Note (or security issued in exchange or substitution therefor) (i) as to which such restrictions on transfer shall have expired in accordance with their terms, (ii) that has
been transferred pursuant to a registration statement that has become effective or been declared effective under the Securities Act and that continues to be effective at the time of such transfer or (iii) that has been sold pursuant to the
exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, may, upon surrender of such Note for exchange to the Note Registrar in accordance with the provisions of this Section 2.05, be
exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the Restrictive Notes Legend and shall not be assigned a restricted CUSIP number. The Company shall be entitled to instruct the Custodian in
writing to so surrender any Global Note as to which any of the conditions set forth in clause (i) through (iii) of the immediately preceding sentence have been satisfied, and, upon such instruction, the Custodian shall so surrender such Global Note
for exchange; and any new Global Note so exchanged therefor shall not bear the Restrictive Notes Legend and shall not be assigned a restricted CUSIP number. The Company shall promptly notify the Trustee upon the occurrence of the Resale Restriction
Termination Date and promptly after a registration statement, if any, with respect to the Notes or any Common Stock issued upon conversion of the Notes has been declared effective under the Securities Act. Upon notice of the Resale Restriction
Termination Date in accordance with the immediately preceding sentence, the Restrictive Notes Legend shall be deemed removed from the Note, with no further action required by the Company, the Trustee, or, if applicable, the Depositary; at such
time, such Note will be deemed to be identified by the “unrestricted” CUSIP and ISIN numbers provided in the certificate representing such Note; provided, however,
that if such Note is a Global Note and the Depositary 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 (x) the Company
will effect such exchange or procedure as soon as reasonably practicable; and (y) for purposes of Section 4.06 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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Notwithstanding any other provisions of this Indenture (other than the provisions set forth in this Section 2.05(c)), a Global Note may not be transferred as a whole or in
part except (i) by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary and (ii) for exchange of a Global Note or a portion thereof for one or more Physical Notes in accordance with the second immediately succeeding paragraph.
The Depositary shall be a clearing agency registered under the Exchange Act. The Company initially appoints The Depository Trust Company to act as Depositary with respect to each
Global Note. Initially, each Global Note shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the Depositary, and deposited with the Trustee as custodian for Cede & Co.
If (i) the Depositary notifies the Company at any time that the Depositary is unwilling or unable to continue as depositary for the Global Notes and a successor depositary is not
appointed within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange Act and a successor depositary is not appointed within 90 days or (iii) an Event of Default with respect to the Notes has occurred and is
continuing and, subject to the Depositary’s applicable procedures, a beneficial owner of any Note requests that its beneficial interest therein be issued as a Physical Note, the Company shall execute, and the Trustee, upon receipt of an Officer’s
Certificate, an Opinion of Counsel and a Company Order for the authentication and delivery of Notes, shall authenticate and deliver (x) in the case of clause (iii), a Physical Note to such beneficial owner in a principal amount equal to the
principal amount of such Note corresponding to such beneficial owner’s beneficial interest and (y) in the case of clause (i) or (ii), Physical Notes to each beneficial owner of the related Global Notes (or a portion thereof) in an aggregate
principal amount equal to the aggregate principal amount of such Global Notes in exchange for such Global Notes, and upon delivery of the Global Notes to the Trustee such Global Notes shall be canceled.
Physical Notes issued in exchange for all or a part of the Global Note pursuant to this Section 2.05(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, or, in the case of clause (iii) of the immediately preceding paragraph, the relevant beneficial owner, shall instruct the Trustee. Upon
execution and authentication, the Trustee shall deliver such Physical Notes to the Persons in whose names such Physical Notes are so registered.
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At such time as all interests in a Global Note have been converted, canceled, repurchased upon a Fundamental Change, redeemed or transferred, such Global Note shall be, upon
receipt thereof, canceled by the Trustee in accordance with standing procedures and existing instructions between the Depositary and the Custodian. At any time prior to such cancellation, if any interest in a Global Note is exchanged for Physical
Notes, converted, canceled, repurchased upon a Fundamental Change, redeemed or transferred to a transferee who receives Physical Notes therefor or any Physical Note is exchanged or transferred for part of such Global Note, the principal amount of
such Global Note shall, in accordance with the standing procedures and instructions existing between the Depositary and the Custodian, be appropriately reduced or increased, as the case may be, and an endorsement shall be made on such Global Note,
by the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.
None of the Company, the Trustee or any agent of the Company or the Trustee shall have any responsibility or liability for any act or omission of the Depositary or for the payment
of amounts to owners of beneficial interest in a Global Note, for any aspect of the records relating to or payments made on account of those interests by the Depositary, or for maintaining, supervising or reviewing any records of the Depositary
relating to those interests. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.
(d) Until the Resale Restriction Termination Date, any stock certificate representing Common Stock
issued upon conversion of a Note shall bear a legend in substantially the following form (unless such Common Stock has been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and
that continues to be effective at the time of such transfer, or pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or such Common Stock has been issued upon conversion
of a Note that has been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or pursuant to the exemption from
registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise agreed by the Company with written notice thereof to the Trustee and any transfer agent for the Common Stock):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED
INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES FOR THE BENEFIT OF BED BATH & BEYOND, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUANCE DATE OF
THE SERIES OF NOTES UPON THE CONVERSION OF WHICH THIS SECURITY WAS ISSUED OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY
APPLICABLE LAW, EXCEPT:
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(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE
SECURITIES ACT, OR
(C) TO A PERSON REASONABLY BELIEVED TO BE A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR
(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRANSFER AGENT FOR THE COMPANY’S COMMON STOCK RESERVE THE RIGHT TO REQUIRE THE
DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO
REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
Any such Common Stock (i) as to which such restrictions on transfer shall have expired in accordance with their terms, (ii) that has been transferred pursuant to a registration
statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer or (iii) that has been sold pursuant to the exemption from registration provided by Rule 144 or any
similar provision then in force under the Securities Act, may, upon surrender of the certificates representing such shares of Common Stock for exchange in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for a
new certificate or certificates for a like aggregate number of shares of Common Stock, which shall not bear the restrictive legend required by this Section 2.05(d).
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable
law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
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(e) Any Note or Common Stock issued upon the conversion or exchange of a Note that is repurchased
or owned by the Company or any Affiliate of the Company (or any Person who was an Affiliate of the Company at any time during the three months immediately preceding) may not be resold by the Company or such Affiliate (or such Person, as the case
may be) unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such Note or Common Stock, as the case may be, no longer being a
“restricted security” (as defined under Rule 144).
Section 2.06 Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become mutilated or be destroyed, lost or
stolen, the Company in its discretion may execute, and upon receipt of a Company Order the Trustee or an authenticating agent appointed by the Trustee shall authenticate and deliver, a new Note, bearing a registration number not contemporaneously
outstanding, in exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed, lost or stolen. In every case the applicant for a substituted Note shall furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent such security or indemnity as may be required by them to save each of them harmless from any loss, liability, cost, fee or expense caused by or connected with such substitution, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.
The Trustee or such authenticating agent may authenticate any such substituted Note and deliver the same upon the receipt of such security or indemnity as the Trustee, the Company
and, if applicable, such authenticating agent may require. No service charge shall be imposed by the Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent upon the issuance of any substitute Note, but the Company may
require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a result of the name of the Holder of the new substitute Note being different from the name of the Holder
of the old Note that became mutilated or was destroyed, lost or stolen. In case any Note that has matured or is about to mature or has been surrendered for required repurchase upon a Fundamental Change or is about to be converted in accordance with
Article 14 shall become mutilated or be destroyed, lost or stolen, the Company may, in its sole discretion, instead of issuing a substitute Note, pay or authorize the payment of or convert or authorize the conversion of the same (without
surrender thereof except in the case of a mutilated Note), as the case may be, if the applicant for such payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity
as may be required by them to save each of them harmless for any loss, liability, cost, fee or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, evidence satisfactory to the Company, the
Trustee and, if applicable, any Paying Agent or Conversion Agent evidence of their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of this Section 2.06 by virtue of the fact that any Note is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set forth in) this Indenture equally and
proportionately with any and all other Notes duly issued hereunder. To the extent permitted by law, all Notes shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement, payment,
redemption, conversion or repurchase of mutilated, destroyed, lost or stolen Notes and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the
replacement, payment, redemption, conversion or repurchase of negotiable instruments or other securities without their surrender.
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Section 2.07 Temporary Notes. Pending the preparation of Physical Notes, the
Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon receipt of a Company Order, authenticate and deliver temporary Notes (printed or lithographed). Temporary Notes shall be issuable in any authorized
denomination, and substantially in the form of the Physical Notes but with such omissions, insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Company. Every such temporary Note shall be executed by
the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially the same manner, and with the same effect, as the Physical Notes. Without unreasonable delay, the Company shall execute and
deliver to the Trustee or such authenticating agent Physical Notes (other than any Global Note) and thereupon any or all temporary Notes (other than any Global Note) may be surrendered in exchange therefor, at each office or agency maintained by
the Company pursuant to Section 4.02 and the Trustee or such authenticating agent shall authenticate and deliver in exchange for such temporary Notes an equal aggregate principal amount of Physical Notes. Such exchange shall be made by the
Company at its own expense and without any charge therefor. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Physical Notes authenticated and
delivered hereunder.
Section 2.08 Cancellation of Notes Paid, Converted, Etc. The Company shall cause all Notes surrendered for the purpose of
payment at maturity, repurchase upon a Fundamental Change, redemption, registration of transfer or exchange or conversion (other than any Notes exchanged pursuant to Section 14.12), if surrendered to any Person that the Company controls, to
be delivered to the Trustee for cancellation. All Notes delivered to the Trustee shall be canceled promptly by it. No Notes shall be authenticated in exchange therefor except as expressly permitted by any of the provisions of this Indenture. The
Trustee shall dispose of canceled Notes in accordance with its customary procedures and, after such disposition, shall deliver a certificate of such disposition to the Company, at the Company’s written request in a Company Order.
Section 2.09 CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if so,
the Trustee shall use “CUSIP” numbers in all notices issued to Holders as a convenience to such Holders; provided that the Trustee shall have no liability for any defect in the “CUSIP” numbers as they
appear on any Note, notice or elsewhere, and, provided, further, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or on
such notice and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
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Section 2.10 Additional Notes; Repurchases. The Company may, without the consent of, or notice to, the Holders and
notwithstanding Section 2.01, at any time on or after the Requisite Stockholder Approval Date, reopen this Indenture and issue additional Notes hereunder with the same terms as the Notes initially issued hereunder (other than differences in
the issue date, the issue price, interest accrued prior to the issue date of such additional Notes and, if applicable, restrictions on transfer in respect of such additional Notes) in an unlimited aggregate principal amount; provided that if any such additional Notes are not fungible with the Notes initially issued hereunder for U.S. federal income tax or securities law purposes, such additional Notes shall have one or more
separate CUSIP numbers. For the avoidance of doubt, notwithstanding any other provision of this Indenture to the contrary, for purposes of Section 4.06, in the event additional Notes are issued pursuant to this Section 2.10,
references to the “Last Original Issuance Date” of the Notes with respect to any Notes issued on the Issue Date shall refer only to such Notes issued on the Issue Date and not any additional Notes issued pursuant to this Section 2.10. Prior
to the issuance of any such additional Notes, the Company shall deliver to the Trustee a Company Order, an Officer’s Certificate and an Opinion of Counsel, such Officer’s Certificate and Opinion of Counsel to cover such matters, in addition to
those required by Section 17.05, as the Trustee shall reasonably request. In addition, subject to applicable law, the Company or its Subsidiaries may directly or indirectly repurchase Notes in the open market, in privately negotiated
transactions, through private or public tender or exchange offers, through cash-settled swaps or other cash-settled derivatives, or otherwise. The Company may, at its option and to the extent permitted by applicable law, reissue, resell or
surrender to the Trustee for cancellation any Notes that the Company may repurchase, in the case of a reissuance or resale, so long as such Notes do not constitute Restricted Securities upon such reissuance or resale. Any Notes that the Company or
its Subsidiaries may repurchase will be considered outstanding for all purposes herein (other than, at any time when such Notes are held by the Company, any of its Subsidiaries or Affiliates or any subsidiary of any of the Company’s Affiliates, for
the purpose of determining whether Holders of the requisite aggregate principal amount of the Notes have concurred in any direction, consent, waiver or other action under this Indenture) unless and until such time the Company surrenders the Notes
to the Trustee for cancellation and, upon receipt of a Company Order, the Trustee will cancel all the Notes so surrendered.
ARTICLE 3
SATISFACTION AND DISCHARGE
Section 3.01 Satisfaction and Discharge. (a) This Indenture and the Notes shall cease to be of further effect when (i) all
Notes theretofore authenticated and delivered (other than (x) Notes which have been destroyed, lost or stolen and which have been replaced, paid or converted as provided in Section 2.06 and (y) Notes for whose payment money has heretofore
been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 4.04(d)) have been delivered to the Trustee for cancellation; or (ii) the
Company has irrevocably deposited with the Trustee or delivered to Holders, as applicable, after the Notes have become due and payable, whether on the Maturity Date, any Redemption Date, any Fundamental Change Repurchase Date, upon conversion or
otherwise, cash or, solely to satisfy the Company’s Conversion Obligation, cash, shares of Common Stock or a combination thereof, as applicable, sufficient to pay all of the outstanding Notes and all other sums due and payable under this Indenture
or the Notes by the Company; and (b) the Trustee upon request of the Company contained in an Officer’s Certificate and at the expense of the Company, shall execute such instruments reasonably requested by the Company acknowledging satisfaction and
discharge of this Indenture and the Notes, when the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge
of this Indenture and the Notes have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.06 shall survive.
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ARTICLE 4
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01 Payment of Principal and Interest. The Company covenants and agrees
that it will cause to be paid the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, each of the Notes at the places, at the respective times and in the
manner provided herein and in the Notes.
Section 4.02 Maintenance of Office or Agency. The Company will maintain in the contiguous United States of America, an
office or agency where the Notes may be surrendered for registration of transfer or exchange or for presentation for payment or repurchase (“Paying Agent”) or for conversion (“Conversion
Agent”) and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office or the office or agency of the Trustee in the contiguous United States of America.
The Company may also from time to time designate as co-Note Registrars one or more other offices or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in
the contiguous United States of America, for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. The terms “Paying Agent” and “Conversion Agent” include any such additional or other offices or agencies, as applicable.
The Company hereby initially designates the Trustee as the Paying Agent, Note Registrar, Custodian and Conversion Agent and the Corporate Trust Office as the office or agency in
the contiguous United States of America, where Notes may be surrendered for registration of transfer or exchange or for presentation for payment or repurchase or for conversion and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served; provided that the Corporate Trust Office shall not be a place for service of legal process for the Company.
Section 4.03 Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever necessary to avoid or fill a vacancy
in the office of Trustee, will appoint, in the manner provided in Section 7.09, a Trustee, so that there shall at all times be a Trustee hereunder.
Section 4.04 Provisions as to Paying Agent. (a) If the Company shall appoint a
Paying Agent other than the Trustee, the Company will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.04:
(i) that it will hold all sums held by it as such agent for the payment of the
principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes in trust for the benefit of the Holders of the Notes;
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(ii) that it will give the Trustee prompt written notice of any failure by the
Company to make any payment of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes when the same shall be due and payable; and
(iii) that at any time during the continuance of an Event of Default, upon request
of the Trustee, it will forthwith pay to the Trustee all sums so held in trust.
The Company shall, on or before each due date of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid
interest on, the Notes, deposit with the Paying Agent a sum sufficient to pay such principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) or accrued and unpaid interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee in writing of any failure to take such action; provided that if such deposit is made on the due date, such deposit must be received by the
Paying Agent by 11:00 a.m., New York City time, on such date.
(b) If the Company shall act as its own Paying Agent, it will, on or before each due date of the
principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes, set aside, segregate and hold in trust for the benefit of the Holders of the Notes a sum
sufficient to pay such principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) and accrued and unpaid interest so becoming due and will promptly notify the Trustee in writing of any failure to take
such action and of any failure by the Company to make any payment of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Notes when the same shall
become due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay, cause to be paid or deliver to the Trustee all sums or amounts held in trust by the Company or any Paying Agent hereunder as required
by this Section 4.04, such sums or amounts to be held by the Trustee upon the trusts herein contained and upon such payment or delivery by the Company or any Paying Agent to the Trustee, the Company or such Paying Agent shall be released
from all further liability but only with respect to such sums or amounts. Upon the occurrence of any event specified in Section 6.01(h) or Section 6.01(i), the Trustee shall automatically become the Paying Agent.
(d) Subject to applicable escheatment laws, any money and shares of Common Stock deposited with the
Trustee, the Conversion Agent or any Paying Agent, or then held by the Company, in trust for the payment of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, accrued and unpaid interest
on and the consideration due upon conversion of any Note and remaining unclaimed for two years after such principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable), interest or consideration due upon
conversion has become due and payable shall be paid to the Company on request of the Company contained in an Officer’s Certificate, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee, the Conversion Agent or such Paying Agent with respect to such trust money and shares of Common Stock, and all liability
of the Company as trustee thereof, shall thereupon cease.
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Section 4.05 Existence. Subject to Article 11 and Section 13.03, the
Company and each Guarantor shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.
Section 4.06 Rule 144A Information Requirement and Annual Reports. (a) At any time the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall, so long as any of the Notes or any shares of Common Stock issuable upon conversion thereof shall, at
such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, promptly provide to the Trustee and, upon written request, any Holder, beneficial owner or prospective purchaser of such Notes or any
shares of Common Stock issuable upon conversion of such Notes, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Notes or shares of Common Stock pursuant to Rule 144A.
(b) The Company shall file with the Trustee, within 15 days after the same are required to be
filed with the Commission, copies of any annual or quarterly reports (on Form 10-K or Form 10-Q or any respective successor form) that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
(excluding any such information, documents or reports, or portions thereof, subject to confidential treatment and any correspondence with the Commission, and giving effect to any grace period provided by Rule 12b-25 under the Exchange Act (or any
successor thereto)). Any such document or report that the Company files with the Commission via the Commission’s EDGAR system (or any successor system) shall be deemed to be filed with the Trustee for purposes of this Section 4.06(b) at
the time such documents are filed via the EDGAR system (or such successor), it being understood that the Trustee shall have no responsibility or liability to determine if any documents have been filed. Delivery of the reports, information and
documents described in this Section 4.06(b) to the Trustee is for informational purposes only, and the information and the Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein
or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no liability
or responsibility for the filing, timeliness, or content of such reports.
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.
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(c) If, at any time during the six-month period beginning on, and including, the date that is six
months after the Last Original Issuance Date of the Notes, the Company fails to timely file any document or report that it is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, as applicable (after giving
effect to all applicable grace periods thereunder and other than reports on Form 8-K), or the Notes are not otherwise Freely Tradable, the Company shall pay Additional Interest on the Notes. 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 Company expects to or will file, such report before the expiration of such maximum period. Such Additional Interest shall accrue on the Notes at the rate of 0.50% per annum of the principal amount of the Notes outstanding for
each day during such period for which the Company’s failure to file has occurred and is continuing or the Notes are not otherwise Freely Tradable.
As used in this Section 4.06(c), documents or reports that the Company is required to “file” with the Commission pursuant to Section 13 or 15(d) of the Exchange Act does
not include documents or reports that the Company furnishes to the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
(d) If, and for so long as, the Restrictive Notes Legend on the Notes specified in Section
2.05(c) has not been removed, the Notes are assigned a restricted CUSIP number or the Notes are not otherwise Freely Tradable as of the 380th day after the Last Original Issuance Date of the Notes, the Company shall pay Additional Interest
on the Notes at a rate equal to 0.50% per annum of the principal amount of Notes outstanding until the Restrictive Notes Legend on the Notes has been removed in accordance with Section 2.05(c), the Notes are assigned an unrestricted CUSIP
number and the Notes are Freely Tradable.
(e) Additional Interest will be payable in arrears on each Interest Payment Date following accrual
in the same manner as regular interest on the Notes.
(f) (i) Notwithstanding anything in this Indenture or the Notes
to the contrary, but subject to Section 4.06(f)(iii), Additional Interest that accrues on the Notes pursuant to Section 4.06(d) will accrue, but will not be payable on any Interest Payment Date, unless (x) a Holder has delivered
to the Company (with a copy to the Trustee), before the Regular Record Date immediately before such Interest Payment Date, a written notice (a “Deferred Additional Interest Demand Request”) demanding
payment of Additional Interest or (y) 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
(with a copy to the Trustee) before such Regular Record Date, to pay such Additional Interest on such Interest Payment Date (any such accrued and unpaid Additional Interest that, in compliance with the foregoing, is not paid on such Interest
Payment Date, “Deferred Additional Interest”).
(ii) Without further action by the Company or any other Person, interest will
automatically accrue on any Deferred Additional Interest from, and including, the applicable Interest Payment Date at a rate per annum equal to the then-applicable Stated Interest Rate to, but excluding, the date on which such Deferred Additional
Interest, together with any interest thereon, is paid.
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(iii) Once any accrued and unpaid Additional Interest becomes payable on an
Interest Payment Date, whether as a result of the delivery of a Deferred Additional Interest Demand Request or, if earlier, the Company’s election to pay the same, Additional Interest will thereafter not be subject to deferral pursuant to Section
4.06(f)(i). Notwithstanding anything to the contrary in the Indenture or the Notes, all accrued and unpaid Additional Interest, if any, will be paid on the Interest Payment Date occurring on the Maturity Date, and no portion thereof may be
deferred pursuant to Section 4.06(f)(i). 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 4.06(f)(i). Otherwise, such a failure to pay will constitute a Default or an Event of Default, as applicable, subject to Section 6.01(a).
(g) The Additional Interest or Deferred Additional Interest that is payable in accordance with Section
4.06(c), Section 4.06(d) or Section 4.06(f) shall be in addition to, and not in lieu of, any Additional Interest that may be payable as a result of the Company’s election pursuant to Section 6.03. In no event shall
Additional Interest (excluding any interest that accrues on any Deferred Additional Interest) that may accrue as a result of the Company’s failure to comply with its obligations to timely file any document or report that the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods thereunder and other than reports on Form 8-K), as set forth in Section 4.06(c), together
with any Additional Interest that may accrue at the Company’s election as the remedy for a Reporting Event of Default, accrue at a rate in excess of 0.50% per annum pursuant to this Indenture, regardless of the number of events or circumstances
giving rise to the requirement to pay such Additional Interest.
(h) If Additional Interest or Deferred Additional Interest is payable in accordance with Section
4.06(c), Section 4.06(d) or Section 4.06(f), the Company shall deliver to the Trustee an Officer’s Certificate to that effect stating (i) the amount of such Additional Interest or Deferred Additional Interest that is payable
and (ii) the date on which such Additional Interest or Deferred Additional Interest is payable, except that no such Officer’s Certificate is required of any Additional Interest that is deferred in accordance with Section 4.06(f). Unless
and until a Responsible Officer of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no such Additional Interest or Deferred Additional Interest is payable. If the Company has paid
Additional Interest or Deferred Additional Interest directly to the Persons entitled to it, the Company shall deliver to the Trustee an Officer’s Certificate setting forth the particulars of such payment. The Trustee shall have no duty to verify
the Company’s determination as to whether Additional Interest or Deferred Additional Interest is due or to verify, calculate or confirm the Company’s calculations as to the amount of Additional Interest or Deferred Additional Interest, and may
assume without inquiry that no Additional Interest or Deferred Additional Interest is payable until written notice of such Additional Interest or Deferred Additional Interest being payable has been provided to a Responsible Officer of the Trustee
by the Company.
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Section 4.07 Stay, Extension and Usury Laws. The Company and each of the Guarantors covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law that would prohibit or forgive the Company or such Guarantor from
paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of this Indenture; and the Company and each
of the Guarantors (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any right, remedy and/or
power herein granted to the Trustee, but will suffer and permit the execution of every such right, remedy and/or power as though no such law had been enacted.
Section 4.08 Compliance Certificate; Statements as to Defaults. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year of the Company (beginning with the fiscal year ending on December 31, 2026) an Officer’s Certificate stating whether the signers thereof have knowledge of any Event of Default
or Default that occurred during the previous year and, if so, specifying each such Event of Default or Default and the nature thereof.
In addition, the Company shall deliver to the Trustee, within 30 days after the Company obtains knowledge of the occurrence of any Default or Event of Default, an Officer’s
Certificate setting forth the details of such Default or Event of Default, its status and the action that the Company is taking or proposing to take in respect thereof; provided that the Company is not
required to deliver such Officer’s Certificate if the event would constitute a Default or Event of Default has been cured or waived before the date the Company is required to deliver such Officer’s Certificate.
Section 4.09 Further Instruments and Acts. Upon request of the Trustee, Paying Agent or Conversion Agent, the Company or any
Guarantor will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.
Section 4.10 Requisite Stockholder Approval. (a) No later than three months after
the Issue Date, unless the Requisite Stockholder Approvals are obtained prior to such date, the Company shall duly notice, convene and hold the First Stockholder Approval Meeting and shall present the Requisite Stockholder Approvals to the
Company’s common stockholders for their approval at such meeting. No later than six months after the Issue Date, unless the Requisite Stockholder Approvals are obtained prior to such date, the Company shall duly notice, convene and hold the Second
Stockholder Approval Meeting and shall present the Requisite Stockholder Approvals to the Company’s common stockholders for their approval at such meeting. The Company shall present the Requisite Stockholder Approvals to the Company’s common
stockholders for approval at each annual meeting of the Company’s common stockholders held after the First Stockholder Approval Meeting until such Requisite Stockholder Approvals have been obtained.
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(b) The Company will use its reasonable best efforts to obtain the Requisite Stockholder Approvals
at each meeting at which the Requisite Stockholder Approvals are presented to the Company’s common stockholders for approval, including by (i) preparing a proxy statement for such meeting, (ii) recommending on behalf of the Company and its Board
of Directors the approval and adoption of the Requisite Stockholder Approvals, and any other actions necessary in connection therewith, in such proxy statement and any related proxy materials delivered to the Company’s common stockholders and
(iii) soliciting from common stockholder proxies in favor of all such actions. No later than one (1) Business Day after the receipt of the Authorized Share Amendment Approval, the Company shall cause to be duly adopted and filed with the
Secretary of State of the State of Delaware an amendment to the Company’s amended and restated certificate of incorporation, as amended, reflecting the increase in the Company’s authorized shares of Common Stock approved as part of the Requisite
Stockholder Approvals. Notwithstanding anything in this Indenture or in the Notes to the contrary, if, notwithstanding the Company having used its reasonable best efforts to obtain the Requisite Stockholder Approvals as and when required
pursuant to this Section 4.10, the Requisite Stockholder Approvals are not obtained, the sole remedy for the Company’s failure to so obtain the Requisite Stockholder Approvals shall be the increase in the Stated Interest Rate as provided
for in the proviso to the definition of Stated Interest Rate.
(c) No later than four (4) Business Days after the date that the Requisite Stockholder Approvals
or any portion of them have been obtained, the Company will file with the Commission via the Commission’s EDGAR system (or any successor system) a Current Report on Form 8-K or will issue a press release announcing the receipt of the Requisite
Stockholder Approvals and the applicable Requisite Stockholder Approval Date.
Section 4.11 Registration Rights. The Company agrees that each of the Holders shall be entitled to the rights and benefits
set forth in the Registration Rights Agreement upon delivery of an executed joinder to the Registration Rights Agreement (as provided for therein) to the Company. By its purchase or acceptance of any Notes and delivery to the Company of such
executed joinder to the Registration Rights Agreement, each Holder agrees to be bound by the terms of the Registration Rights Agreement as it relates to the Registrable Securities (as defined therein).
ARTICLE 5
LISTS OF HOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01 Lists of Holders. The Company covenants and agrees that it will furnish or cause to be furnished to the
Trustee, semi-annually, not more than 15 days before each March 15 and September 15 in each year beginning with March 15, 2027, and at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such
request (or such lesser time as the Trustee may reasonably request in order to enable it to timely provide any notice to be provided by it hereunder), a list in such form as the Trustee may reasonably require of the names and addresses of the
Holders as of a date not more than 15 days (or such other date as the Trustee may reasonably request in order to so provide any such notices) prior to the time such information is furnished, except that no such list need be furnished so long as the
Trustee is acting as Note Registrar.
Section 5.02 Preservation and Disclosure of Lists. The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders contained in the most recent list furnished to it as provided in Section 5.01 or maintained by the Trustee in its capacity as Note Registrar, if so acting. The
Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
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ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default. Each of the following events shall be an “Event of Default”
with respect to the Notes:
(a) default in any payment of interest on any Note when due and payable, and the default continues
for a period of 30 days;
(b) default in the payment of principal of any Note when due and payable on the Maturity Date, upon
Optional Redemption, upon any required repurchase, upon declaration of acceleration or otherwise;
(c) failure by the Company to comply with its obligation to convert the Notes in accordance with
this Indenture upon exercise of a Holder’s conversion right and such failure continues for three (3) Business Days;
(d) failure by the Company to issue a Fundamental Change Company Notice in accordance with Section
15.02(c), a notice of a Make-Whole Fundamental Change in accordance with Section 14.03(b) or notice of a specified corporate transaction in accordance with Section 14.01(b)(iii), in each case when due;
(e) failure by the Company to comply with its obligations under Article 11 or Article
13;
(f) failure by the Company for 60 days after written notice from the Trustee or the Holders of at
least 25% in principal amount of the Notes then outstanding has been received by the Company to comply with any of its other agreements contained in the Notes or this Indenture;
(g) default by the Company, any Guarantor or any Significant Subsidiary with respect to any
mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any principal amount of indebtedness for money borrowed in excess of $75,000,000 (or its foreign currency equivalent) in
the aggregate of the Company, any such Guarantor or any such Significant Subsidiary, whether such indebtedness now exists or shall hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable prior to its
stated maturity date or (ii) constituting a failure to pay the principal of any such debt when due and payable (after the expiration of all applicable grace periods) at its stated maturity, upon required repurchase, upon declaration of
acceleration or otherwise, and in the cases of clauses (i) and (ii), such acceleration shall not have been rescinded or annulled or such failure to pay or default shall not have been cured or waived, or such indebtedness is not paid or
discharged, as the case may be, within 30 days after written notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least 25% in aggregate principal amount of Notes then outstanding in accordance with this
Indenture;
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(h) the Company, any Guarantor or any Significant Subsidiary shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with respect to the Company, any such Guarantor or any such Significant Subsidiary or any of their respective debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company, any such Guarantor or any such Significant Subsidiary or any of their respective property, or shall consent to
any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it or them, or shall make a general assignment for the benefit of creditors;
(i) an involuntary case or other proceeding shall be commenced against the Company, any Guarantor
or any Significant Subsidiary seeking liquidation, reorganization or other relief with respect to the Company, any such Guarantor or any such Significant Subsidiary or any of their respective debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company, any such Guarantor or any such Significant Subsidiary or any substantial part of any of
their respective property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 consecutive days; or
(j) any Guarantee ceases to be in full force and effect (other than in accordance with the terms
of such Guarantee and this Indenture) or is declared null and void and unenforceable or found to be invalid or any Guarantor denies its liability under the Guarantee of such Guarantor (other than by reason of release of such Guarantor from its
Guarantee in accordance with the terms of this Indenture and the Guarantee).
Section 6.02 Acceleration; Rescission and Annulment. If one or more Events of
Default shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body), then, and in each and every such case (other than an Event of Default specified in Section 6.01(h) or Section 6.01(i) with respect to the Company or any Guarantor),
unless the principal of all of the Notes shall have already become due and payable, either the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding determined in accordance with Section 8.04, by
notice in writing to the Company (and to the Trustee if given by Holders), may declare 100% of the principal of, and accrued and unpaid interest on, all outstanding Notes to be due and payable immediately, and upon any such declaration the same
shall become and shall automatically be immediately due and payable, anything contained in this Indenture or in the Notes to the contrary notwithstanding. 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. If an Event of Default specified in Section
6.01(h) or Section 6.01(i) with respect to the Company or any Guarantor occurs and is continuing, 100% of the principal of, and accrued and unpaid interest, if any, on, all Notes shall become and shall automatically be immediately due
and payable.
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The immediately preceding paragraph, however, is subject to the conditions that if, at any time after the principal of the Notes shall have been so declared due and payable, and
before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, and if (1) rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (2) any and
all existing Events of Default (including, for the avoidance of doubt, the failure to pay interest, if any, due and payable on any Defaulted Amounts) under this Indenture, other than the nonpayment of the principal of and accrued and unpaid
interest, if any, on Notes that shall have become due solely by such acceleration, shall have been cured or waived pursuant to Section 6.09, then, and in every such case (except as provided in the immediately succeeding sentence), the
Holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Company and to the Trustee, may waive all Defaults or Events of Default with respect to the Notes and rescind and annul such declaration and
its consequences and such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver or rescission and annulment shall extend to or shall
affect any subsequent Default or Event of Default, or shall impair any right consequent thereon. Notwithstanding anything to the contrary herein, no such waiver or rescission and annulment shall extend to or shall affect any Default or Event of
Default resulting from (i) the nonpayment of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, any Notes, (ii) a failure to repurchase any Notes when
required, (iii) a failure to pay or deliver, as the case may be, the consideration due upon conversion of the Notes or (iv) a default in respect of a covenant or provision hereof which under Article 10 cannot be modified or amended without
the consent of each Holder of an outstanding Note affected.
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 Reporting Event of Default. In addition, for the avoidance of doubt, if (x) 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; and (y) if an Event of Default is cured or waived before any related notice of acceleration is delivered, such Event of Default shall be deemed cured and the Notes shall not be subject to acceleration on account of such
Default.
Section 6.03 Additional Interest. Notwithstanding anything in this Indenture or in
the Notes to the contrary, to the extent the Company elects, the sole remedy for an Event of Default relating to the Company’s failure to comply with its obligations as set forth in Section 4.06(b) (a “Reporting
Event of Default”) shall, for the first 365 days after the occurrence of such an Event of Default, consist exclusively of the right to receive Additional Interest on the Notes at a rate equal to (x) 0.25% per annum of the principal amount
of the Notes outstanding for each day that such Event of Default is continuing during the first 180 days after the occurrence of such Event of Default and (y) 0.50% per annum of the principal amount of the Notes outstanding for each day that such
Event of Default is continuing during the subsequent 185-day period. Subject to the last paragraph of this Section 6.03, Additional Interest payable pursuant to this Section 6.03 shall be in addition to, not in lieu of, any
Additional Interest payable pursuant to Section 4.06(c) or Section 4.06(d). If the Company so elects, such Additional Interest shall be payable in the same manner and on the same dates as the stated interest payable on the Notes. On
the 366th day after such Event of Default (if a Reporting Event of Default is not cured or waived prior to such 366th day), the Notes shall be immediately subject to acceleration as provided in Section 6.02. The provisions of this paragraph
will not affect the rights of Holders in the event of the occurrence of any Event of Default other than a Reporting Event of Default. In the event the Company does not elect to pay Additional Interest following an Event of Default in accordance
with this Section 6.03 or the Company elected to make such payment but does not pay the Additional Interest when due, the Notes shall be immediately subject to acceleration as provided in Section 6.02.
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In order to elect to pay Additional Interest as the sole remedy during the first 365 days after the occurrence of a Reporting Event of Default, the Company must notify all Holders
of the Notes, the Trustee and the Paying Agent in an Officer’s Certificate of such election prior to the beginning of such 365-day period. Upon the failure to timely give such notice, the Notes shall be immediately subject to acceleration as
provided in Section 6.02.
In no event shall Additional Interest payable at the Company’s election as the remedy for a Reporting Event of Default, together with any Additional Interest that may accrue as a
result of the Company’s failure to timely file any document or report that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods
under the Exchange Act and other than reports on Form 8-K), pursuant to Section 4.06(c), accrue at a rate in excess of 0.50% per annum pursuant to this Indenture, regardless of the number of events or circumstances giving rise to the
requirement to pay such Additional Interest.
Section 6.04 Payments of Notes on Default; Suit Therefor. If an Event of Default described in clause (a) or (b) of Section
6.01 shall have occurred and be continuing, the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of the Notes, the whole amount then due and payable on the Notes for principal and interest, if any,
with interest on any overdue principal and interest, if any, at the Stated Interest Rate at such time and, in addition thereto, such further amount as shall be sufficient to cover any amounts due to the Trustee under Section 7.06. If the
Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding
to judgment or final decree and may enforce the same against the Company or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other
obligor upon the Notes, wherever situated.
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In the event there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Notes under Title 11 of the United States
Code, or any other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Company or such other obligor, the
property of the Company or such other obligor, or in the event of any other judicial proceedings relative to the Company or such other obligor upon the Notes, or to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section
6.04, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and accrued and unpaid interest, if any, in respect of the Notes, and, in case of
any judicial proceedings, to file such proofs of claim and other papers or documents and to take such other actions as it may deem necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, fees, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceedings relative to the Company or any other obligor on the Notes, its or their creditors, or its or
their property, and to collect and receive any monies or other property payable or deliverable on any such claims, and to distribute the same after the deduction of any amounts due to the Trustee under Section 7.06; and any receiver,
assignee or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is hereby authorized by each of the Holders to make such payments to the Trustee, as administrative expenses, and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for reasonable compensation, expenses, advances and disbursements, including agents and counsel fees, and including any other amounts due to the
Trustee under Section 7.06, incurred by it up to the date of such distribution. To the extent that such payment of reasonable compensation, expenses, advances and disbursements out of the estate in any such proceedings shall be denied for
any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, monies, securities and other property that the Holders of the Notes may be entitled to receive in such proceedings,
whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting such Holder or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Trustee without the possession of any of the Notes, or the
production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for
the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes.
In any proceedings brought by the Trustee (and in any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee
shall be held to represent all the Holders of the Notes, and it shall not be necessary to make any Holders of the Notes parties to any such proceedings.
In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of any waiver pursuant to
Section 6.09 or any rescission and annulment pursuant to Section 6.02 or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Holders and the Trustee shall, subject
to any determination in such proceeding, be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the Holders and the Trustee shall continue as though no such proceeding had been
instituted.
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Section 6.05 Application of Monies Collected by Trustee. Any monies or property received or collected by the Trustee pursuant
to this Article 6 with respect to the Notes shall be applied in the following order, at the date or dates fixed by the Trustee for the distribution of such monies or property, upon presentation of the several Notes, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:
First, to the payment of all amounts due the Trustee (acting in any capacity hereunder),
including its agent and counsel hereunder, including under Section 7.06;
Second, in case the principal of the outstanding Notes shall not have become due and be
unpaid, to the payment of interest on, and any cash due upon conversion of, the Notes in default in the order of the date due of the payments of such interest and cash due upon conversion, as the case may be, with interest (to the extent that
such interest has been collected by the Trustee) upon such overdue payments at the Stated Interest Rate at such time, such payments to be made ratably to the Persons entitled thereto;
Third, in case the principal of the outstanding Notes shall have become due, by declaration
or otherwise, and be unpaid to the payment of the whole amount (including, if applicable, the payment of the Redemption Price and the Fundamental Change Repurchase Price and any cash due upon conversion) then owing and unpaid upon the Notes for
principal and interest, if any, with interest on the overdue principal and, to the extent that such interest has been collected by the Trustee, upon overdue installments of interest at the Stated Interest Rate at such time, and in case such
monies shall be insufficient to pay in full the whole amounts so due and unpaid upon the Notes, then to the payment of such principal (including, if applicable, the Redemption Price and the Fundamental Change Repurchase Price and any cash due
upon conversion) and interest without preference or priority of principal over interest, or of interest over principal or of any installment of interest over any other installment of interest, or of any Note over any other Note, ratably to the
aggregate of such principal (including, if applicable, the Redemption Price and the Fundamental Change Repurchase Price and any cash due upon conversion) and accrued and unpaid interest; and
Fourth, to the payment of the remainder, if any, to the Company.
Section 6.06 Proceedings by Holders. Except to enforce the right to receive payment
of principal (including, if applicable, the Redemption Price and the Fundamental Change Repurchase Price) or interest when due, or the right to receive payment or delivery of the consideration due upon conversion, no Holder of any Note shall have
any right by virtue of or by availing of any provision of this Indenture or the Notes to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture, or for the appointment of a receiver, trustee,
liquidator, custodian or other similar official, or for any other remedy hereunder, unless:
(a) such Holder previously shall have given to the Trustee written notice of an Event of Default
and of the continuance thereof, as herein provided;
(b) Holders of at least 25% in aggregate principal amount of the Notes then outstanding shall have
made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder;
(c) such Holders shall have offered to the Trustee such security or indemnity reasonably
satisfactory to it against any loss, cost, fee, damage, liability or expense to be incurred therein or thereby;
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(d) the Trustee for 60 days after its receipt of such notice, request and offer of such security or
indemnity, shall have neglected or refused to institute any such action, suit or proceeding; and
(e) no direction that, in the opinion of the Trustee, is inconsistent with such written request
shall have been given to the Trustee by the Holders of a majority of the aggregate principal amount of the Notes then outstanding within such 60-day period pursuant to Section 6.09, it being understood and intended, and being expressly
covenanted by the taker and Holder of every Note with every other taker and Holder and the Trustee that no one or more Holders shall have any right in any manner whatever by virtue of or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holder, or to obtain or seek to obtain priority over or preference to any other such Holder (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such
actions or forbearances are unduly prejudicial to any other Holder), or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders (except as otherwise provided
herein). For the protection and enforcement of this Section 6.06, each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision of this Indenture and any provision of any Note, the right of any Holder to receive payment or delivery, as the case may be, of (x) the
principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, (y) accrued and unpaid interest, if any, on, and (z) the consideration due upon conversion of, such Note, on or after the respective due dates
expressed or provided for in such Note or in this Indenture, or to institute suit for the enforcement of any such payment or delivery, as the case may be, on or after such respective dates against the Company shall not be impaired or affected
without the consent of such Holder.
Section 6.07 Proceedings by Trustee. In case of an Event of Default, the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Section 6.08 Remedies Cumulative and Continuing. Except as provided in the last paragraph of Section 2.06, all
powers and remedies given by this Article 6 to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the
Holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Notes to
exercise any right or power accruing upon any Default or Event of Default shall impair any such right or power, or shall be construed to be a waiver of any such Default or Event of Default or any acquiescence therein; and, subject to the provisions
of Section 6.06, every power and remedy given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.
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Section 6.09 Direction of Proceedings and Waiver of Defaults by Majority of Holders. The Holders of a majority of the
aggregate principal amount of the Notes at the time outstanding determined in accordance with Section 8.04 shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Notes; provided, however, that (a) such direction shall not be in conflict with any rule
of law or with this Indenture, and (b) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. The Trustee may refuse to follow any direction that it determines is in conflict with any rule
of law or with this Indenture or is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability. The Holders of a majority in aggregate principal amount of the Notes at the time outstanding
determined in accordance with Section 8.04 may on behalf of the Holders of all of the Notes waive any past Default or Event of Default hereunder and its consequences except any continuing defaults relating to (i) a default in the payment of
accrued and unpaid interest, if any, on, or the principal (including any Redemption Price and any Fundamental Change Repurchase Price) of, the Notes when due that has not been cured pursuant to the provisions of Section 6.01, (ii) a failure
by the Company to pay or deliver, as the case may be, the consideration due upon conversion of the Notes or (iii) a default in respect of a covenant or provision hereof which under Article 10 cannot be modified or amended without the
consent of each Holder of an outstanding Note affected. Upon any such waiver the Company, the Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder; but no such waiver shall extend to any subsequent
or other Default or Event of Default or impair any right consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as permitted by this Section 6.09, said Default or Event of Default shall for all
purposes of the Notes and this Indenture be deemed to have been cured and to be not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
Section 6.10 Notice of Defaults. The Trustee shall, within 90 days after the occurrence and continuance of a Default of
which a Responsible Officer has actual knowledge, deliver to all Holders notice of all Defaults known to a Responsible Officer, unless such Defaults shall have been cured or waived before the giving of such notice; provided that, except in the case of a Default in the payment of the principal of (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable), or accrued and unpaid interest on, any of the Notes or
a Default in the payment or delivery of the consideration due upon conversion, the Trustee shall be protected in withholding such notice if a Responsible Officer of the Trustee in good faith determines that the withholding of 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.
Section 6.11 Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Note by its acceptance
thereof shall be deemed to have agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant
in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided that the provisions of this Section 6.11 (to the extent permitted by
law) shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Notes at the time outstanding determined in accordance with Section
8.04, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or accrued and unpaid interest, if any, on any Note (including, but not limited to, the Redemption Price and the Fundamental Change
Repurchase Price, if applicable) on or after the due date expressed or provided for in such Note or to any suit for the enforcement of the right to convert any Note, or receive the consideration due upon conversion, in accordance with the
provisions of Article 14.
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ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.01 Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiver of all Events of Default that may have occurred for which a Responsible Officer has actual knowledge or written notice, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In
the event an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or
use under the circumstances in the conduct of such person’s own affairs; provided that if an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights
or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered, and, if requested, provided to the Trustee indemnity or security satisfactory to it against any loss, cost, fee, damage, liability or
expense that might be incurred by it in compliance with such request or direction.
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act or its own
willful misconduct, except that:
(a) prior to the occurrence of an Event of Default and after the curing or waiving of all Events
of Default that may have occurred:
(i) the duties and obligations of the Trustee shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of gross negligence or willful misconduct on the part of the
Trustee as finally adjudicated by a court of competent jursidiction, the Trustee may, as to the truth of the statements and the correctness of the opinions expressed therein, conclusively rely upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions that by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein);
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(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible
Officer or Officers of the Trustee, unless it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it
in good faith in accordance with the direction of the Holders of not less than a majority of the aggregate principal amount of the Notes at the time outstanding determined as provided in Section 8.04 relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(d) whether or not therein provided, every provision of this Indenture relating to the conduct or
affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section;
(e) the Trustee shall not be liable in respect of any payment (as to the correctness of amount,
entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent or any records maintained by any co-Note Registrar with respect to the Notes;
(f) if any party fails to deliver a notice relating to an event the fact of which, pursuant to this
Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred, unless a Responsible Officer of the Trustee had actual knowledge of such
event;
(g) in the absence of written investment direction from the Company, all cash received by the
Trustee shall be placed in a non-interest bearing trust account, and in no event shall the Trustee be liable for the selection of investments or for investment losses incurred thereon or for losses incurred as a result of the liquidation of any
such investment prior to its maturity date or the failure of the party directing such investments prior to its maturity date or the failure of the party directing such investment to provide timely written investment direction, and the Trustee
shall have no obligation to invest or reinvest any amounts held hereunder in the absence of such written investment direction from the Company; and
(h) in the event that the Trustee is also acting as Custodian, Note Registrar, Paying Agent,
Conversion Agent or transfer agent hereunder, the rights and protections afforded to the Trustee pursuant to this Article 7 shall also be afforded to such Custodian, Note Registrar, Paying Agent, Conversion Agent or transfer agent.
None of the provisions contained in this Indenture or the Notes shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or powers.
Section 7.02 Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section 7.01:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, note, coupon or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the
proper party or parties;
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(b) any request, direction, order or demand of the Company or any Guarantor mentioned herein shall
be sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
(c) whenever in the administration of this Indenture, the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of gross negligence or willful misconduct on its part as
finally adjudicated by a court of competent jursidiction, conclusively rely upon an Officer’s Certificate;
(d) the Trustee may consult with counsel of its selection, and require an Opinion of Counsel and
any advice of such counsel or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(e) the Trustee shall not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the
expense of the Company and shall incur no liability of any kind by reason of such inquiry or investigation;
(f) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, custodians, nominees or attorneys and the Trustee shall not be responsible or liable for any action, inaction, misconduct or negligence on the part of any agent, custodian, nominee or attorney appointed by
it with due care hereunder;
(g) the permissive rights of the Trustee enumerated herein shall not be construed as duties;
(h) the Trustee may request that the Company deliver an Officer’s Certificate setting forth the
names of the individuals or titles of officers authorized at such times to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person authorized to sign an Officer’s Certificate, including any
Person specified as so authorized in any such certificate previously delivered and not superseded;
(i) neither the Trustee nor any of its directors, officers, employees, agents, or affiliates shall
be responsible for nor have any duty to monitor the performance or any action of the Company, or any of their respective directors, members, officers, agents, affiliates, or employees, nor shall it have any liability in connection with the
malfeasance or nonfeasance by such party. The Trustee shall not be responsible or liable for any inaccuracy in the information obtained from the Company or for any inaccuracy or omission in the records which may result from such information or
any failure by the Trustee to perform its duties as set forth herein as a result of any inaccuracy or incompleteness;
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(j) the Trustee shall have no obligation to pursue any action that is not in accordance with
applicable law;
(k) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it
by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered (and if requested, provided) to the Trustee security or indemnity satisfactory to the Trustee against the
costs, fees, damages, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(l) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it
in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; and
(m) the Trustee shall not be obligated to take possession of any Common Stock, whether upon
conversion or in connection with any discharge of this Indenture pursuant to Article 3 hereof, but shall satisfy its obligation as Conversion Agent by working through the stock transfer agent of the Company from time to time as directed
by the Company.
In no event shall the Trustee be liable for any special, indirect, punitive, or consequential loss or damage of any kind whatsoever (including but not limited to lost profits),
even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action. The Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes, unless either (1) a
Responsible Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default or Event of Default shall have been actually received by a Responsible Officer of the Trustee, as sent by the Company or by
any Holder of the Notes.
Section 7.03 No Responsibility for Recitals, Etc. The recitals contained herein and in the Notes (except in the Trustee’s
certificate of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to and shall not be responsible or liable for the
validity or sufficiency of this Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the Company of any Notes or the proceeds of any Notes authenticated and delivered by the Trustee in conformity with the
provisions of this Indenture.
Section 7.04 Trustee, Paying Agents, Conversion Agents or Note Registrar May Own Notes. The Trustee, any Paying Agent, any
Conversion Agent or Note Registrar, in its individual or any other capacity, may become the owner or pledgee of Notes with the same rights it would have if it were not the Trustee, Paying Agent, Conversion Agent or Note Registrar.
Section 7.05 Monies and Shares of Common Stock to Be Held in Trust. All monies and shares of Common Stock received by the
Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received. Money and shares of Common Stock held by the Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability for interest on any money or shares of Common Stock received by it hereunder except as may be agreed from time to time by the Company and the Trustee.
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Section 7.06 Compensation and Expenses of Trustee . The Company covenants and agrees to pay to the Trustee, in each capacity
under this Indenture, from time to time and the Trustee shall receive such compensation for all services rendered by it hereunder in any capacity (which shall not be limited by any provision of law in regard to the compensation of a trustee of an
express trust) as mutually agreed to in writing between the Trustee and the Company, and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances reasonably incurred or made by the
Trustee in accordance with any of the provisions of this Indenture in any capacity thereunder (including the reasonable compensation and the expenses, fees, disbursements and advances of its agents and counsel and of all Persons not regularly in
its employ) except any such expense, disbursement or advance as shall have been caused by its gross negligence or willful misconduct as finally adjudicated by a court of competent jurisdiction. The Company and each Person that becomes a Guarantor
by execution of a supplemental indenture to this Indenture, jointly and severally, covenants to indemnify the Trustee or any predecessor Trustee in any capacity under this Indenture and any other document or transaction entered into in connection
herewith and its officers, directors, attorneys, employees and agents and any authenticating agent for, and to hold them harmless against, any loss, claim, damage, liability, cost, fee or expense (including reasonable attorneys’ fees and expenses
an court costs) incurred without gross negligence or willful misconduct, as finally adjudicated by a court of competent jurisdiction on the part of the Trustee, its officers, directors, agents or employees, or such agent or authenticating agent, as
the case may be, and arising out of or in connection with the acceptance or administration of this Indenture or in any other capacity hereunder, including the costs and expenses (including reasonable attorneys’ fees and expenses and court costs) of
defending themselves against any claim of liability in the premises and enforcement of this Section 7.06. The obligations of the Company and the Guarantors under this Section 7.06 to compensate or indemnify the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and advances shall be secured by a senior lien to which the Notes are hereby made subordinate on all money or property held or collected by the Trustee, except, subject to the effect of Section
6.05, funds held in trust herewith for the benefit of the Holders of particular Notes, and, for the avoidance of doubt, such lien shall not be extended in a manner that would conflict with the Company’s obligations to its other creditors. The
Trustee’s right to receive payment of any amounts due under this Section 7.06 shall not be subordinate to any other liability or indebtedness of the Company. The obligation of the Company under this Section 7.06 shall survive the
satisfaction and discharge of this Indenture, termination or assignment of this Indenture, and the earlier resignation or removal of the Trustee. The Company need not pay for any settlement made without its consent, which consent shall not be
unreasonably withheld. The indemnification provided in this Section 7.06 shall extend to the officers, directors, agents and employees of the Trustee.
Without prejudice to any other rights available to the Trustee under applicable law, when the Trustee and its agents and any authenticating agent incur expenses or render services
after an Event of Default specified in Section 6.01(h) or Section 6.01(i) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any bankruptcy, insolvency or similar
laws.
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Section 7.07 Officer’s Certificate and Opinion of Counsel as Evidence. Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of gross negligence or willful misconduct on the part of the Trustee as finally adjudicated by a court of competent jurisdiction, be deemed to be conclusively proved and
established by an Officer’s Certificate and Opinion of Counsel delivered to the Trustee, and such Officer’s Certificate and Opinion of Counsel, in the absence of gross negligence or willful misconduct on the part of the Trustee as finally
adjudicated by a court of competent jurisdiction, shall be full warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith thereof.
Section 7.08 Eligibility of Trustee. There shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act (as if the Trust Indenture Act were applicable hereto) to act as such and has a combined capital and surplus of at least $50,000,000. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of any supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article
7.
Section 7.09 Resignation or Removal of Trustee. (a) The Trustee may at any time
resign by giving written notice of such resignation to the Company. Upon receiving such notice of resignation, the Company shall promptly notify all Holders and appoint a successor trustee by written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 45 days after the
giving of such notice of resignation to the Holders, the resigning Trustee may, upon ten Business Days’ notice to the Company and the Holders, petition any court of competent jurisdiction, at the expense of the Company, for the appointment of a
successor trustee, or any Holder who has been a bona fide holder of a Note or Notes for at least six months (or since the date of this Indenture) may, subject to the provisions of Section 6.11, on behalf of himself or herself and all others
similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall cease to be eligible in accordance with the provisions of
Section 7.08 and shall fail to resign after written request therefor by the Company or by any such Holder, or
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(ii) the Trustee shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in either case, the Company may by a Board Resolution remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.11, any Holder who has been a bona fide holder of a Note or Notes for at least six months (or since the date of this
Indenture) may, on behalf of himself or herself and all others similarly situated, petition any court of competent jurisdiction at the expense of the Company for the removal of the Trustee and the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the Notes at the time outstanding,
as determined in accordance with Section 8.04, may at any time remove the Trustee upon 30 days’ advance written notice and nominate a successor trustee that shall be deemed appointed as successor trustee unless within ten days after
notice to the Company of such nomination the Company objects thereto, in which case the Trustee so removed or any Holder, upon the terms and conditions and otherwise as in Section 7.09(a) provided, may petition any court of competent
jurisdiction for an appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to
any of the provisions of this Section 7.09 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.10.
Section 7.10 Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 7.09 shall
execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee herein; but, nevertheless, on the written
request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it hereunder (including the retiring Trustee’s fees, costs, expenses (including attorneys’ fees and expenses) pursuant to the
provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company shall execute any and
all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a senior lien to which the Notes are hereby made
subordinate on all money or property held or collected by such trustee as such, except for funds held in trust for the benefit of Holders of particular Notes, to secure any amounts then due it pursuant to the provisions of Section 7.06.
No successor trustee shall accept appointment as provided in this Section 7.10 unless at the time of such acceptance such successor trustee shall be eligible under the
provisions of Section 7.08.
Upon acceptance of appointment by a successor trustee as provided in this Section 7.10, each of the Company and the successor trustee, at the written direction and at the
expense of the Company shall deliver or cause to be delivered notice of the succession of such trustee hereunder to the Holders. If the Company fails to deliver such notice within ten days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be delivered at the expense of the Company.
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Section 7.11 Succession by Merger, Etc. Any corporation or other entity into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion, sale or consolidation to which the Trustee shall be a party, or any corporation or other entity succeeding to all or substantially all of
the corporate trust business or assets of the Trustee (including the administration of this Indenture), shall be the successor to the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the
parties hereto; provided that in the case of any corporation or other entity succeeding to all or substantially all of the corporate trust business or assets of the Trustee such corporation or other entity
shall be eligible under the provisions of Section 7.08.
In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of authentication of any predecessor trustee or authenticating agent appointed by such predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall
not have been authenticated, any successor to the Trustee or an authenticating agent appointed by such successor trustee may authenticate such Notes either in the name of any predecessor trustee hereunder or in the name of the successor trustee;
and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor trustee or to authenticate Notes in the name of any predecessor trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
Section 7.12 Trustee’s Application for Instructions from the Company. Any application by the Trustee for written
instructions from the Company (other than with regard to any action proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders of the Notes under this Indenture) may, at the option of the Trustee, set forth in
writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on or after which such action shall be taken or such omission shall be effective. The Trustee shall not be liable to the Company for any action
taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date notice to the Company is
deemed to be received pursuant to Section 17.03, unless any such officer shall have consented in writing to any earlier date), unless, prior to taking any such action (or the effective date in the case of any omission), the Trustee shall
have received written instructions in accordance with this Indenture in response to such application specifying the action to be taken or omitted.
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ARTICLE 8
CONCERNING THE HOLDERS
Section 8.01 Action by Holders. Whenever in this Indenture it is provided that the Holders of a specified percentage of the
aggregate principal amount of the Notes may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action, the
Holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing, or (b) by the record of the
Holders voting in favor thereof at any meeting of Holders duly called and held in accordance with the provisions of Article 9, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Holders.
Whenever the Company or the Trustee solicits the taking of any action by the Holders of the Notes, the Company or the Trustee may, but shall not be required to, fix in advance of such solicitation, a date as the record date for determining Holders
entitled to take such action. The record date if one is selected shall be not more than fifteen days prior to the date of commencement of solicitation of such action.
Section 8.02 Proof of Execution by Holders. Subject to the provisions of Section 7.01, Section 7.02 and Section
9.05, proof of the execution of any instrument or writing by a Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar. The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.
Section 8.03 Who Are Deemed Absolute Owners. The Company, the Trustee, any authenticating agent, any Paying Agent, any
Conversion Agent and any Note Registrar may deem the Person in whose name a Note shall be registered upon the Note Register to be, and may treat it as, the absolute owner of such Note (whether or not such Note shall be overdue and notwithstanding
any notation of ownership or other writing thereon made by any Person other than the Company or any Note Registrar) for the purpose of receiving payment of or on account of the principal (including any Redemption Price and any Fundamental Change
Repurchase Price) of and (subject to Section 2.03) accrued and unpaid interest on such Note, for conversion of such Note and for all other purposes under this Indenture; and neither the Company nor the Trustee nor any Paying Agent nor any
Conversion Agent nor any Note Registrar shall be affected by any notice to the contrary. The sole registered holder of a Global Note shall be the Depositary or its nominee. All such payments or deliveries so made to any Holder for the time being,
or upon its order, shall be valid, and, to the extent of the sums or shares of Common Stock so paid or delivered, effectual to satisfy and discharge the liability for monies payable or shares deliverable upon any such Note. Notwithstanding anything
to the contrary in this Indenture or the Notes following an Event of Default, any holder of a beneficial interest in a Global Note may directly enforce against the Company, without the consent, solicitation, proxy, authorization or any other action
of the Depositary or any other Person, such holder’s right to exchange such beneficial interest for a Note in certificated form in accordance with the provisions of this Indenture.
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Section 8.04 Company-Owned Notes Disregarded. In determining whether the Holders of the requisite aggregate principal amount
of Notes have concurred in any direction, consent, waiver or other action under this Indenture, Notes that are owned by the Company, by any Subsidiary thereof or by any Affiliate of the Company or any Subsidiary thereof shall be disregarded and
deemed not to be outstanding for the purpose of any such determination; provided that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent,
waiver or other action only Notes that a Responsible Officer actually knows are so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as outstanding for the purposes of this Section 8.04 if
the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to so act with respect to such Notes and that the pledgee is not the Company, a Subsidiary thereof or an Affiliate of the Company or a Subsidiary thereof. In the
case of a dispute as to such right, any decision or indecision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officer’s
Certificate listing and identifying all Notes, if any, known by the Company to be owned or held by or for the account of any of the above described Persons; and, subject to Section 7.01, the Trustee shall be entitled to accept such
Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all Notes not listed therein are outstanding for the purpose of any such determination.
Section 8.05 Revocation of Consents; Future Holders Bound. At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 8.01, of the taking of any action by the Holders of the percentage of the aggregate principal amount of the Notes specified in this Indenture in connection with such action, any Holder of a Note that is shown
by the evidence to be included in the Notes the Holders of which have consented to such action may, by filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in Section 8.02, revoke such
action so far as concerns such Note. Except as aforesaid, any such action taken by the Holder of any Note shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Note and of any Notes issued in exchange or
substitution therefor or upon registration of transfer thereof, irrespective of whether any notation in regard thereto is made upon such Note or any Note issued in exchange or substitution therefor or upon registration of transfer thereof.
ARTICLE 9
HOLDERS’ MEETINGS
Section 9.01 Purpose of Meetings. A meeting of Holders may be called at any time and from time to time pursuant to the
provisions of this Article 9 for any of the following purposes:
(a) to give any notice to the Company or to the Trustee or to give any directions to the Trustee
permitted under this Indenture, or to consent to the waiving of any Default or Event of Default hereunder (in each case, as permitted under this Indenture) and its consequences, or to take any other action authorized to be taken by Holders
pursuant to any of the provisions of Article 6;
(b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article
7;
(c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the
provisions of Section 10.02; or
(d) to take any other action authorized to be taken by or on behalf of the Holders of any
specified aggregate principal amount of the Notes under any other provision of this Indenture or under applicable law.
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Section 9.02 Call of Meetings by Trustee. The Trustee may at any time call a meeting of Holders to take any action
specified in Section 9.01, to be held at such time and at such place as the Trustee shall determine. Notice of every meeting of the Holders, setting forth the time and the place of such meeting and in general terms the action proposed to be
taken at such meeting and the establishment of any record date pursuant to Section 8.01, shall be delivered to Holders of such Notes. Such notice shall also be delivered to the Company. Such notices shall be delivered not less than 20 nor
more than 90 days prior to the date fixed for the meeting.
Any meeting of Holders shall be valid without notice if the Holders of all Notes then outstanding are present in person or by proxy or if notice is waived before or after the
meeting by the Holders of all Notes then outstanding, and if the Company and the Trustee are either present by duly authorized representatives or have, before or after the meeting, waived notice.
Section 9.03 Call of Meetings by Company or Holders. In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% of the aggregate principal amount of the Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by written request setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have delivered the notice of such meeting within 20 days after receipt of such request, then the Company or such Holders may determine the time and the place for such meeting and may call such meeting to take any
action authorized in Section 9.01, by delivering notice thereof as provided in Section 9.02.
Section 9.04 Qualifications for Voting. To be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of
one or more Notes on the record date pertaining to such meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Notes on the record date pertaining to such meeting. The only Persons who shall be entitled
to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
Section 9.05 Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders, in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders as provided in Section
9.03, in which case the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Holders
of a majority in aggregate principal amount of the outstanding Notes represented at the meeting and entitled to vote at the meeting.
Subject to the provisions of Section 8.04, at any meeting of Holders each Holder or proxyholder shall be entitled to one vote for each $1,000 principal amount of Notes held
or represented by him or her; provided, however, that no vote shall be cast or counted at any meeting in respect of any Note challenged as not outstanding and ruled
by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Notes held by it or instruments in writing as aforesaid duly designating it as the proxy to vote on behalf of
other Holders. Any meeting of Holders duly called pursuant to the provisions of Section 9.02 or Section 9.03 may be adjourned from time to time by the Holders of a majority of the aggregate principal amount of Notes represented at
the meeting, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice.
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Section 9.06 Voting. The vote upon any resolution submitted to any meeting of Holders shall be by written ballot on which
shall be subscribed the signatures of the Holders or of their representatives by proxy and the outstanding aggregate principal amount of the Notes held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was delivered as provided in Section 9.02. The record shall show the aggregate principal amount of the Notes voting in
favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
Section 9.07 No Delay of Rights by Meeting. Nothing contained in this Article
9 shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Holders under any of the provisions of this Indenture or of the Notes. Nothing contained in this Article 9 shall be deemed or construed to limit any Holder’s actions pursuant to the
applicable procedures of the Depositary so long as the Notes are Global Notes.
ARTICLE 10
SUPPLEMENTAL INDENTURES
Section 10.01 Supplemental Indentures Without Consent of Holders. The Company, the
Guarantors and the Trustee, at the Company’s expense, may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes:
(a) to cure any ambiguity, omission, defect or inconsistency that does not adversely affect the
rights of any Holder in any material respect;
(b) to provide for the assumption by a Successor Entity of the obligations of the Company under this
Indenture pursuant to Article 11 or for the assumption by a Successor Guarantor of the obligations of any Guarantor under this Indenture pursuant to Section 13.03;
(c) to add additional guarantees with respect to the Notes;
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(d) to secure the Notes or the Guarantees;
(e) to add to the covenants in this Indenture or Events of Default for the benefit of the Holders or
surrender any right or power conferred upon the Company or any Guarantor;
(f) to make any change that does not adversely affect the rights of any Holder in any material
respect;
(g) in connection with any Share Exchange Event, to provide that the Notes are convertible into
Reference Property, subject to the provisions of Section 14.02, and make such related changes to the terms of the Notes to the extent expressly required by Section 14.07;
(h) [intentionally omitted];
(i) to comply with the rules of any applicable Depositary, including The Depository Trust Company,
so long as such amendment does not adversely affect the rights of any Holder;
(j) to appoint a successor trustee with respect to the Notes;
(k) to increase the Conversion Rate as provided in this Indenture;
(l) to provide for the acceptance of appointment by a successor Trustee, Note Registrar, Paying
Agent or Conversion Agent to facilitate the administration of the trusts under this Indenture by more than one trustee; or
(m) to irrevocably elect a Settlement Method or a Specified Dollar Amount, or eliminate the Company’s
right to elect a Settlement Method; provided, however, that no such election or elimination will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to Article 14.
Upon the written request of the Company, the Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to, but may in its discretion, enter into any supplemental indenture that affects the Trustee’s own rights, privileges, protections,
indemnities, limitations of liability, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 10.01 may be executed by the Company, the Guarantors and the Trustee without the consent of the
Holders of any of the Notes at the time outstanding, notwithstanding any of the provisions of Section 10.02.
Section 10.02 Supplemental Indentures with Consent of Holders. With the consent
(evidenced as provided in Article 8) of the Holders of at least a majority of the aggregate principal amount of the Notes then outstanding (determined in accordance with Article 8 and including, without limitation, consents obtained
in connection with a repurchase of, or tender or exchange offer for, Notes), the Company, each Guarantor and the Trustee, at the Company’s expense, may from time to time and at any time enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, the Notes or any supplemental indenture or of modifying in any manner the rights of the Holders; provided, however, that, without the consent of each Holder of an outstanding Note affected, no such supplemental indenture shall:
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(a) reduce the principal amount of Notes whose Holders must consent to an amendment;
(b) reduce the rate of or extend the stated time for payment of interest on any Note;
(c) reduce the principal of or extend the Maturity Date of any Note;
(d) except as required by this Indenture, make any change that adversely affects the conversion
rights of any Notes;
(e) reduce the Redemption Price or the Fundamental Change Repurchase Price of any Note or amend or
modify in any manner adverse to the Holders the Company’s obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise;
(f) make any Note payable in a currency, in any manner other than cash, or at a place of payment,
other than as explicitly stated in the Note;
(g) change the ranking of the Notes or the Guarantees;
(h) make any change in this Article 10 that requires each Holder’s consent or in the
waiver provisions in Section 6.02 or Section 6.09;
(i) make any change in the Guarantees that would adversely affect the Holders in any material
respect (except to the extent explicitly permitted by, and in accordance with the terms of, this Indenture); or
(j) except to the extent explicitly permitted by, and in accordance with the terms of, this
Indenture, eliminate any Guarantee.
Upon the written request of the Company, and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid and subject to Section 10.05, the Trustee
shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, privileges, protections, indemnities, limitations of liability, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
Holders do not need under this Section 10.02 to approve the particular form of any proposed supplemental indenture. It shall be sufficient if such Holders approve the
substance thereof. After any such supplemental indenture becomes effective, the Company shall deliver to the Holders (with a copy to the Trustee) a notice briefly describing such supplemental indenture. However, the failure to give such notice to
all the Holders (with a copy to the Trustee), or any defect in the notice, will not impair or affect the validity of the supplemental indenture.
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Section 10.03 Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article 10, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and the Holders shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 10.04 Notation on Notes. Notes authenticated and delivered after the execution
of any supplemental indenture pursuant to the provisions of this Article 10 may, at the Company’s expense, bear a notation as to any matter provided for in such supplemental indenture. If the Company or the Trustee shall so determine, new
Notes so modified as to conform, in the opinion of the Trustee and the Company, to any modification of this Indenture contained in any such supplemental indenture may, at the Company’s expense, be prepared and executed by the Company,
authenticated, upon receipt of a Company Order, by the Trustee (or an authenticating agent duly appointed by the Trustee pursuant to Section 17.10) and delivered in exchange for the Notes then outstanding, upon surrender of such Notes then
outstanding.
Section 10.05 Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee. In
addition to the documents required by Section 17.05, the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the requirements
of this Article 10 and is permitted or authorized by this Indenture; such Opinion of Counsel to include a customary legal opinion stating that such supplemental indenture is the valid and binding obligation of the Company, subject to
customary exceptions and qualifications. The Trustee shall have no responsibility or liability for determining whether any amendment or supplemental indenture will or may have an adverse effect on any Holder.
ARTICLE 11
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 11.01 Company May Consolidate, Etc. on Certain Terms. Subject to the provisions of Section 11.02, the Company
shall not consolidate with, merge with or into, or sell, convey, transfer or lease all or substantially all of the properties and assets of the Company to another Person (each, a “Business Combination Event”)
(other than any such sale, conveyance, transfer or lease to one or more of the Company’s Wholly Owned Subsidiaries but, for the avoidance of doubt, in the case of any such sale, conveyance, transfer or lease, the transferee will not succeed to the
transferor, and the transferor will not be discharged from its obligations, under this Indenture and the Notes) unless:
(a) the resulting, surviving or transferee Person, if not the Company, shall be a Qualified
Successor Entity (such Qualified Successor Entity, the “Successor Entity”) organized and existing under the laws of the United States of America, any State thereof or the District of Columbia, and the
Successor Entity (if not the Company) shall expressly assume, by supplemental indenture all of the obligations of the Company under the Notes and this Indenture;
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(b) immediately after giving effect to such Business Combination Event, no Default or Event of
Default shall have occurred and be continuing under this Indenture; and
(c) if the Company is not the Successor Entity, the Successor Entity shall have delivered to the
Trustee and Officer’s Certificate and Opinion of Counsel, each stating that such Business Combination Event complies with this Indenture and that such supplemental indenture is authorized or permitted by this Indenture, and an Opinion of Counsel
stating that the supplemental indenture is the valid and binding obligation of the Successor Entity, subject to customary exceptions and qualifications.
For purposes of this Section 11.01, the sale, conveyance, transfer or lease of all or substantially all of the properties and assets of one or more Subsidiaries of the
Company to another Person, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the
sale, conveyance, transfer or lease of all or substantially all of the properties and assets of the Company to another Person. In addition to complying with this Section 11.01, if applicable, any sale, conveyance, transfer or lease of all
or substantially all of the properties and assets of one or more Guarantors must also comply with Section 13.03.
Section 11.02 Successor Entity to Be Substituted. In case of any Business Combination
Event and upon the assumption by the Successor Entity, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal of and accrued and unpaid interest on
all of the Notes, the due and punctual delivery or payment, as the case may be, of any consideration due upon conversion of the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by
the Company, such Successor Entity (if not the Company) shall succeed to and, except in the case of a lease of all or substantially all of the Company’s properties and assets, shall be substituted for the Company, with the same effect as if it had
been named herein as the party of the first part, and may thereafter exercise every right and power of the Company under this Indenture. Such Successor Entity thereupon may cause to be signed, and may issue either in its own name or in the name of
the Company any or all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such Successor Entity instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered, any Notes that previously shall have been signed and delivered by the Officers of the Company to
the Trustee for authentication, and any Notes that such Successor Entity thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Notes so issued shall in all respects have the same legal rank and benefit under
this Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Notes had been issued at the date of the execution hereof. In the event of any such Business Combination Event (but
not in the case of a lease), upon compliance with this Article 11 the Person named as the “Company” in the first paragraph of this Indenture (or any successor that shall thereafter have become such in the manner prescribed in this Article
11) may be dissolved, wound up and liquidated at any time thereafter and, except in the case of a lease, such Person shall be released from its liabilities as obligor and maker of the Notes and from its obligations under this Indenture and
the Notes.
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In case of any such Business Combination Event, such changes in phraseology and form (but not in substance) may be made in the Notes thereafter to be issued as may be appropriate.
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 Indenture and Notes Solely Corporate Obligations. No recourse for the
payment of the principal of or accrued and unpaid interest on any Note, nor for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company or any Guarantor in this
Indenture or in any supplemental indenture or in any Note, nor because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent, Officer or director or Subsidiary (other than the
Guarantors, solely in respect of their obligations as such under this Indenture), as such, past, present or future, of the Company or of any successor corporation, or of any Guarantor or of any successor corporation, either directly or through the
Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Notes.
ARTICLE 13
GUARANTEE
Section 13.01 Guarantee. (a) Subject to this Article 13, each Person that
is or becomes a Guarantor by execution of this Indenture or in accordance with Section 13.07 jointly and severally, as a primary obligor and not merely as a surety, guarantees to each Holder and the Trustee and their successors and assigns
the performance and punctual payment or delivery, as applicable, when due, whether at maturity, by acceleration or otherwise, of all Obligations and the Notes, including principal (including the Redemption Price and Fundamental Change Repurchase
Price, if applicable), premium, if any, interest (including interest on overdue amounts), consideration due upon conversion of the Notes and all other Obligations of the Company or any Guarantor, all in accordance with the terms hereof (all of the
foregoing, collectively, the “Guaranteed Obligations”). In furtherance of the foregoing and not in limitation of any other right which any Holder of the Notes or the Trustee has at law or in equity against
any Guarantor by virtue of this Article 13, failing payment or, if applicable, delivery when due (at maturity, by acceleration or otherwise) of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors
will be jointly and severally obligated to pay and, if applicable, perform and deliver the Guaranteed Obligations immediately. Each Guarantor agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or
further assent from any Guarantor, and that each shall remain bound under this Article 13 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Guarantor agrees that this is a guarantee of payment and performance when
due (and not a guarantee of collection). The Guarantees shall not be convertible and shall automatically terminate with respect to a given Note when such Note is converted.
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(b) The Guarantors agree that their obligations hereunder are unconditional and absolute,
irrespective of (i) the validity, regularity or enforceability of the Notes or this Indenture, (ii) the absence of any action to enforce the same or to exercise any right or remedy against the Company or any other Guarantor, (iii) any extension
or renewal of this Indenture or the Notes, (iv) any rescission, settlement, compromise, waiver, modification, amendment, consent or release in respect of this Indenture or the Notes or any of the Guaranteed Obligations, (v) any change in the
corporate existence, structure or ownership of the Company, any Guarantor or any of their respective Subsidiaries, (vi) any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Company, any Guarantor, any of their
respective Subsidiaries or any of their respective assets or any resulting release or discharge of any obligation of the Company, any Guarantor or any of their respective Subsidiaries contained in this Indenture or the Notes, (vii) the existence
of any claim, set-off or other rights which any Guarantor may have at any time against the Company, the Trustee or any other Person, whether in connection with this Indenture, the Notes or any unrelated transactions (provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim), (viii) any invalidity or unenforceability relating to or against the Company or any Guarantor for any reason of
this Indenture or the Notes, (ix) any provision of applicable law or regulation purporting to prohibit the payment by the Company or any of the Guarantors of the principal of or interest on the Notes or any other amount payable or deliverable by
the Company under this Indenture or the Notes, (x) the recovery of any judgment against the Company or any Guarantor, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor, or (xi) any other act or omission to act or delay of any kind by the Company, the Trustee or any other Person or any other circumstance whatsoever which might, but for the provisions of this Section 13.01(b),
constitute a legal or equitable discharge of or defense to such Guarantor’s obligations hereunder. Each Guarantor hereby waives diligence, presentment, demand of payment and protest to the Company, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes and this Indenture. Each Guarantor waives any right to which it may be entitled to have its Guarantee hereunder divided among the Guarantors, such that such Guarantor’s Guarantee would be less than the full
amount claimed. Each Guarantor waives any right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Company’s obligations under this Indenture and the Notes and such Guarantor’s Guarantee
hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Guarantor.
(c) Except as expressly set forth in Section 13.02, the Guarantee of each Guarantor
hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim,
recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantee of each Guarantor herein shall not be
discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof,
by any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the
risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity.
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(d) Except as expressly set forth in Section 13.06, each Guarantor agrees that its Guarantee
shall remain in full force and effect until payment, performance and delivery in full of all the Guaranteed Obligations of such Guarantor. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as
the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder of the Notes or the Trustee upon the bankruptcy or reorganization of
Company or any Guarantor or otherwise.
(e) If any Holder or the Trustee is required by any court or otherwise to return to the Company,
the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.
(f) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to
the Holders in respect of any obligations guaranteed hereby until payment, performance and delivery in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such obligations as provided in Article 6, such obligations (whether or not due and payable) will forthwith
become due and payable by the Guarantors for the purpose of this Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders
under the Guarantee.
Section 13.02 Limitation on Guarantor Liability. Each Guarantor, the Trustee and, by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to any Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and each of the Guarantors hereby irrevocably agree that the obligations of such Guarantor
will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights
to receive contribution from or payments and, if applicable, deliveries made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 13, result in the obligations of such Guarantor
under its Guarantee not constituting a fraudulent transfer or conveyance.
Section 13.03 Guarantors May Consolidate, etc., on Certain Terms. No Guarantor may consolidate with or merge into any other
Person other than the Company or another Guarantor, or convey, transfer or lease its properties and assets substantially as an entirety to any Person, other than to the Company or another Guarantor, unless, in each case:
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(a) either (i) in the case of a consolidation or merger, the Guarantor is the surviving entity, or
(ii) the Person formed by or surviving such consolidation or merger (if other than the Guarantor) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made (such Person, the “Successor Guarantor”) shall expressly assume by supplemental indenture all of the obligations of the Guarantor under this Indenture and the Notes;
(b) the Successor Guarantor, if any, is an entity organized and existing under the laws of the
United States of America, any state thereof or the District of Columbia; and
(c) immediately after giving effect to such transactions, no Default or Event of Default shall
have occurred and be continuing; and
(d) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel,
each stating that such transaction complies with this Article 13 and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
In case of any such consolidation, merger, conveyance, transfer or lease and upon the assumption by the Successor Guarantor of the Guarantee and the due and punctual performance of
all of the obligations under this Indenture and the Notes to be performed by the Guarantor, such Successor Guarantor shall succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. Such
Successor Guarantor thereupon may cause to be signed any or all of this Indenture and the Notes to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All
the Guarantees so issued will in all respects have the same legal rank and benefit under this Indenture as the Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Guarantees had been
issued on the date of the execution hereof.
Section 13.04 Stay of Acceleration. If acceleration of the time for payment of any amount payable or, if applicable,
deliverable by the Company under this Indenture or the Notes is stayed upon the insolvency, bankruptcy or reorganization of the Company, all such amounts otherwise subject to acceleration under the terms of this Indenture are nonetheless payable
or, if applicable, deliverable by the Guarantors hereunder forthwith on demand by the Trustee or the Holders.
Section 13.05 Execution and Delivery. The execution by each Guarantor of this Indenture or of a supplemental indenture, as
applicable, evidences the Guarantee of such Guarantor, whether or not the person signing as an officer of such Guarantor still holds that office at the time of authentication of any Note. The delivery of Notes by the Trustee after authentication
constitutes due delivery of the Guarantee on behalf of each Guarantor.
Section 13.06 Release of Guarantees. (a) A Guarantor’s Guarantee with respect to the
Notes will be released automatically and immediately (without the necessity of any action by the Trustee) upon the occurrence of both of the following:
(i) the occurrence of any of the following:
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(A) upon the conveyance, sale, transfer, assignment or other disposition of all of
the Capital Stock of such Guarantor to a Person that is a non-affiliated third party of the Company or any of its Subsidiaries so long as (1) no Default or Event of Default shall have occurred and be continuing under this Indenture at the time of
such conveyance, sale, transfer, assignment or other disposition, (2) such conveyance, sale, transfer, assignment or other disposition shall be completed in a transaction permitted (or not prohibited) by the terms of this Indenture with a
legitimate business purpose and not for the purpose of releasing such Guarantee or for the incurrence of indebtedness or liability management and (3) the consideration received by the Company and its Subsidiaries in such conveyance, sale,
transfer, assignment or other disposition shall be at least equal to the Fair Market Value of the Capital Stock of such Guarantor sold, transferred, assigned or disposed of; provided that such Guarantor
will continue to be and will not be deemed to be an Excluded Subsidiary as a result of any conveyance, sale, transfer, assignment or other disposition of all of the Capital Stock of such Guarantor not complying with this Section
13.06(a)(i)(A);
(B) concurrently with any such Guarantor becoming an Excluded Subsidiary, provided, however, that a Guarantee by such Guarantor will not be released upon (and such Guarantor will not be deemed to be an Excluded Subsidiary as a result of)
such Guarantor becoming a non-Wholly-Owned Subsidiary unless (1) a Default or Event of Default shall have occurred and be continuing at such time, (2) such Guarantor became a non-Wholly-Owned Subsidiary pursuant to a transaction with a
non-affiliated third party of the Company or any of its Subsidiaries for a legitimate business purpose and not for the purpose of releasing the guarantee or for the incurrence of indebtedness or liability management and (3) the consideration
received by the Company and its Subsidiaries in connection with such transaction is at least equal to the Fair Market Value of that portion of such Guarantor that is transferred to such non-affiliated third party; or
(C) upon satisfaction and discharge of this Indenture pursuant to Article 3;
and
(ii) the delivery by the Company to the Trustee of an Officer’s Certificate and
an Opinion of Counsel each stating that all conditions precedent for such release under this Indenture relating to such transaction have been complied with.
(b) Any Guarantor not released from its obligations under its Guarantee as provided in this Section
13.06 will remain liable for the full amount of principal of and interest on the Notes and for the other Obligations of the Company and any Guarantor under this Indenture as provided in this Article 13.
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Section 13.07 Future Guarantors. The Company shall (i) cause each of its direct or indirect Subsidiaries (other than Excluded
Subsidiaries) (which is not dissolved within thirty (30) days after its formation or acquisition if formed or acquired after the Issue Date), within thirty (30) days after the formation or acquisition of such Subsidiary, or the date such Subsidiary
becomes a Subsidiary of the Company or ceases to be an Excluded Subsidiary, to execute and deliver to the Trustee a supplemental indenture substantially in the form attached hereto as Exhibit B pursuant to which such Subsidiary shall
unconditionally guarantee all of the Guaranteed Obligations on the terms set forth in this Article 13 and (ii) deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel that such supplemental indenture has been duly
authorized, executed and delivered by such Subsidiary and constitute legal, valid, binding and enforceable obligations of such Subsidiary. Thereafter, such Subsidiary shall be a Guarantor for all purposes of this Indenture and the Notes.
ARTICLE 14
CONVERSION OF NOTES
Section 14.01 Conversion Privilege. (a) Subject to and upon compliance with the
provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note (i)
subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding the Free Conversion Date under the circumstances and during the periods set forth
in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after the Free Conversion Date and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity
Date, in each case, at an initial conversion rate of 109.8901 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes
(subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(b) (i) [Intentionally Omitted]
(ii) [Intentionally Omitted]
(iii) If a transaction or event that constitutes a Fundamental Change or a
Make-Whole Fundamental Change occurs, regardless of whether a Holder has the right to require the Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share
Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization within the United States that (x) does not otherwise constitute a Fundamental Change or a Make-Whole Fundamental Change and (y) results in a
reclassification, conversion or exchange of outstanding shares of the Common Stock solely into shares of common stock of the surviving entity and such common stock becomes the sole Reference Property for the Notes) (each such Fundamental Change,
Make-Whole Fundamental Change or Share Exchange Event, a “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of such
Corporate Event until the earlier of (x) 35 Trading Days after the effective date of such transaction (or, if the Company gives notice after the effective date of such Corporate Event, until 35 Trading Days after the date the Company gives notice
of such Corporate Event) or, if such transaction also constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change Repurchase
Date and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of any Corporate Event
and the corresponding right to convert the Notes as promptly as practicable following the effective date of such Corporate Event, but in no event later than two (2) Business Days after the effective date of such Corporate Event. Such notice to
the Holders shall be given by issuing a press release, providing a notice on the Company’s website or disclosing the same in a Current Report on Form 8-K (or any successor form) that is filed with, or furnished to, the Commission and, in respect
of Global Notes, through the Depositary in accordance with the procedures thereof.
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(iv) [Intentionally Omitted]
(v) [Intentionally Omitted]
Section 14.02 Conversion Procedure; Settlement Upon Conversion.
(a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a),
upon conversion of any Note, the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with Section 14.02(j) (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with Section 14.02(j) (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i) All conversions of Called Notes for which the relevant Conversion Date occurs
on or after the date of the Company’s issuance of the applicable Notice of Redemption and prior to the close of business on the second Business Day before the related Redemption Date in respect of such Notice of Redemption shall be settled using
the same Settlement Method, and all conversions for which the relevant Conversion Date occurs on or after April 8, 2033, shall be settled using the same Settlement Method.
(ii) Except for any conversions of Called Notes for which the relevant Conversion
Date occurs after the date of the Company’s issuance of the appliable Notice of Redemption but prior to the close of business on the second Business Day before the related Redemption Date in respect of such Notice of Redemption, and any
conversions for which the relevant Conversion Date occurs on or after April 8, 2033, and except to the extent the Company has previously made an irrevocable election with respect to all subsequent conversions of Notes in accordance with Section
14.02(a)(iii), the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different
Conversion Dates.
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(iii) (i) If, in respect of any Conversion Date
(or any conversions of Called Notes for which the relevant Conversion Date occurs after the Company’s issuance of the applicable Notice of Redemption but prior to the close of business on the second Business Day before the related Redemption
Date in respect of such Notice of Redemption, or for which the relevant Conversion Date occurs on or after April 8, 2033), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement
Notice to converting Holders, the Trustee and the Conversion Agent no later than the close of business on the Trading Day immediately following the relevant Conversion Date (or (1) in the case of any conversions of Called Notes for which the
relevant Conversion Date occurs after the date of issuance of the applicable Notice of Redemption and prior to the close of business on the second Business Day before the related Redemption Date in respect of such Notice of Redemption, in such
Notice of Redemption (and, in the case of a partial redemption, in a notice sent on the relevant Redemption Notice Date to all Holders of Notes not called for redemption) or (2) in the case of any conversions of Notes for which the Conversion
Date occurs on or after April 8, 2033, no later than April 8, 2033) (in each case, the “Settlement
Method Election Deadline”). If the Company does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence with respect to any conversion, the Company shall be
deemed to have elected the Default Settlement Method with respect to such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice
shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount
per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be the Capped Combination Settlement Cash Amount or, after the Requisite
Stockholder Approval Date, $1,000.
(B) If the Company changes the Default Settlement Method or elects to irrevocably
fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specified amount, the Company shall, after the date of such
change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount in respect of the relevant conversion or conversions no
later than the relevant Settlement Method Election Deadline for such conversion or conversions, or, if the Company does not timely inform the Holders, the Trustee and the Conversion Agent of the Specified Dollar Amount, such Specified Dollar
Amount shall be the specific amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified Dollar Amount shall be deemed to be $1,000 per $1,000 principal amount of
Notes. If the Company changes the Default Settlement Method or irrevocably fixes the Settlement Method, then the Company shall concurrently either post the Default Settlement Method or fixed Settlement Method, as applicable, on the Company’s
website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission. Notwithstanding the foregoing, no such change in the Default Settlement Method or irrevocable election will affect any
Settlement Method theretofore elected (or deemed to be elected) with respect to any Conversion Date pursuant to this Section 14.02.
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(iv) The cash, shares of Common Stock or combination of cash and shares of Common
Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows:
(A) if the Company elects to satisfy its Conversion Obligation in respect of such
conversion by Physical Settlement, the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion
Date;
(B) if the Company elects to satisfy its Conversion Obligation in respect of such
conversion by Cash Settlement, the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the 20 consecutive
Trading Days during the related Observation Period; and
(C) if the Company elects (or is deemed to have elected) to satisfy its Conversion
Obligation in respect of such conversion by Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount equal to
the sum of the Daily Settlement Amounts for each of the 20 consecutive Trading Days during the related Observation Period.
(v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values
(if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of
cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be,
and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
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(b) Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a
Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to
which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of
Conversion (or a facsimile, PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set forth in the Form of Notice of Conversion, a “Notice of
Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any
shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the
office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth
in Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for
conversion by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section
15.03.
If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c) A Note shall be deemed to have been converted immediately prior to the close of business on the
date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company
shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided that, with respect to any Conversion Date on or after the Regular Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related conversion, the Company will
settle any such conversion on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the relevant Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a
converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Stock to which such Holder shall be
entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d) In case any Note shall be surrendered for partial conversion, the Company shall execute and the
Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered
Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge
required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e) If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or
similar issue or transfer tax due on the issue or delivery of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other than the Holder’s name, in which case the Holder
shall pay that tax. The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by
such Holder in accordance with the immediately preceding sentence.
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(f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any
shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the
direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent
other than the Trustee.
(h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid
interest, if any, except as set forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not
including, the relevant Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion
of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of
business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the
conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of
interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following the close of business on the Regular Record Date immediately preceding the
Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has specified a
Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts
exists at the time of conversion with respect to such Note.
(i) The Person in whose name the shares of Common Stock shall be issuable upon conversion shall
become the stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period
(if the Company elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.
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(j) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes
and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date or if such Conversion Date is not a Trading Day, the immediately preceding
Trading Day (in the case of Physical Settlement), or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected
(or is deemed to have elected) Combination Settlement, the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation Period and any
fractional shares remaining after such computation shall be paid in cash.
(k) Notwithstanding anything in this Indenture to the contrary, prior to receipt of the NYSE
Stockholder Approval, the Company shall not issue any shares of Common Stock pursuant to the transactions contemplated by this Indenture (including any shares issued pursuant to conversions of the Notes) if such issuance would exceed 6,826 shares
of Common Stock (which number of shares represents 19.99% of the aggregate number of shares of Common Stock issued and outstanding as of the date of the Acquisition Agreement, less that number of shares of Common Stock issued in connection with
the transactions contemplated by the Acquisition Agreement) (the “Exchange Cap”), except that such limitation shall not apply in the event that the Company obtains the NYSE Stockholder Approval for
issuances of shares of Common Stock in excess of such amount. The Exchange Cap shall be appropriately adjusted for any stock dividend, stock split, reverse stock split or similar transaction occurring on or after the Issue Date.
Section 14.03 Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes
or a Notice of Redemption. (a) If (i) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date and a Holder elects to convert its Notes in connection with such
Make-Whole Fundamental Change or (ii) the Company delivers a Notice of Redemption with respect to any or all of the Notes as provided for under Section 16.03 and a Holder elects to convert its Notes in connection with such Notice of
Redemption, then, in each case, the Company shall, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”), as described below. A conversion of Notes shall be deemed for these purposes to be “in connection with” a Make-Whole Fundamental Change if the relevant Conversion Date occurs during the period beginning on, and
including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of an Exempted Fundamental Change or Make-Whole
Fundamental Change that would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof, the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change) (such period, the “Make-Whole Fundamental Change Period”). A conversion of Notes shall be deemed for these purposes to be “in connection with” a Notice of Redemption if such Notes are Called Notes with respect to such Notice of
Redemption and the relevant Conversion Date occurs during the period from, and including, the applicable Redemption Notice Date to, and including, the close of business on the second Business Day immediately preceding the related Redemption Date.
For the avoidance of doubt, the Company shall increase the Conversion Rate in connection with a Notice of Redemption only with respect to conversions of Called Notes with respect to such Notice of Redemption, and not with respect to any other
Notes. Accordingly, if the Company elects to redeem less than all of the outstanding Notes as described under Article 16, Holders of the Notes that are not Called Notes with respect to such Notice of Redemption shall not be entitled to an increased
Conversion Rate for conversions of such Notes.
75
(b) Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change or
Notice of Redemption, the Company shall, at its option, satisfy the related Conversion Obligation by any Settlement Method the Company is then permitted (or is deemed) to elect in accordance with Section 14.02 based on the Conversion Rate
as increased to reflect the Additional Shares; provided, however, that if, at the effective time of a Make-Whole Fundamental Change described in clause (b) of the
definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash, for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion
Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount of converted Notes equal to the Conversion Rate (including any increase to reflect the
Additional Shares), multiplied by such Stock Price. In such event, the Conversion Obligation shall be determined and paid to Holders in cash on the second Business Day following the Conversion Date. The
Company shall notify the Holders, the Trustee and the Conversion Agent of the Effective Date of any Make-Whole Fundamental Change no later than five Business Days after such Effective Date.
(c) The number of Additional Shares, if any, by which the Conversion Rate shall be increased for
conversions in connection with a Make-Whole Fundamental Change or a Notice of Redemption shall be determined by reference to the table below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective or the
Redemption Notice Date, as the case may be (the “Effective Date”), and the price paid (or deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental Change or with respect to the
redemption, as the case may be (the “Stock Price”). If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the
definition of Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock over the five consecutive Trading Day period ending
on, and including, the Trading Day immediately preceding the applicable Effective Date. In the event that a conversion in connection with a Notice of Redemption would also be deemed to be in connection with a Make-Whole Fundamental Change, a
Holder of the Notes to be converted will be entitled to a single increase to the Conversion Rate with respect to the first to occur of the applicable Redemption Notice Date or the Effective Date of the applicable Make-Whole Fundamental Change,
and the later event will be deemed not to have occurred for purposes of such conversion.
(d) The Stock Prices set forth in the column headings of the table below shall be adjusted as of any
date on which the Conversion Rate of the Notes is otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the
numerator of which is the Conversion Rate immediately prior to such adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares set forth in the table
below shall be adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section 14.04.
The following table sets forth the number of Additional Shares by which the Conversion Rate shall be increased per $1,000 principal amount of Notes pursuant to this Section
14.03 for each Stock Price and Effective Date set forth below:
76
|
Stock Price
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Effective Date
|
$
|
4.37
|
$
|
6.37
|
$
|
7.74
|
$
|
9.10
|
$
|
10.47
|
$
|
11.83
|
$
|
13.20
|
$
|
18.20
|
$
|
22.75
|
$
|
27.30
|
$
|
31.85
|
$
|
36.40
|
$
|
40.95
|
$
|
45.50
|
||||||||||||||||||||||||||||
|
July 8, 2026
|
118.9428
|
74.5881
|
55.9044
|
43.7668
|
35.2991
|
29.2324
|
24.6704
|
15.0570
|
10.8010
|
8.3142
|
6.7255
|
5.6390
|
4.8515
|
4.2600
|
||||||||||||||||||||||||||||||||||||||||||
|
July 8, 2027
|
118.9428
|
70.4652
|
51.6615
|
39.5824
|
31.2701
|
25.3999
|
21.0528
|
12.2015
|
8.4934
|
6.4220
|
5.1401
|
4.2897
|
3.6855
|
3.2375
|
||||||||||||||||||||||||||||||||||||||||||
|
July 8, 2028
|
118.9428
|
65.7775
|
46.6828
|
34.5719
|
26.3897
|
20.7355
|
16.6572
|
8.8130
|
5.8363
|
4.3079
|
3.4218
|
2.8533
|
2.4606
|
2.1704
|
||||||||||||||||||||||||||||||||||||||||||
|
July 8, 2029
|
118.9428
|
61.0304
|
41.1309
|
28.6073
|
20.3384
|
14.8400
|
11.0595
|
4.7046
|
2.8400
|
2.0608
|
1.6593
|
1.4114
|
1.2391
|
1.1091
|
||||||||||||||||||||||||||||||||||||||||||
|
July 8, 2030
|
118.9428
|
57.8956
|
36.9280
|
22.8996
|
12.9086
|
6.1253
|
2.2671
|
0.1669
|
0.1319
|
0.1097
|
0.0939
|
0.0822
|
0.0730
|
0.0657
|
||||||||||||||||||||||||||||||||||||||||||
|
July 8, 2031
|
118.9428
|
54.8373
|
34.3600
|
21.0537
|
11.7862
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||||||||||||||||||||||||||||||||||||
|
July 8, 2032
|
118.9428
|
49.5361
|
29.2182
|
17.0559
|
9.2450
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||||||||||||||||||||||||||||||||||||
|
July 8, 2033
|
118.9428
|
47.0958
|
19.3089
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||||||||||||||||||||||||||||||||||||
(e) The exact Stock Price and Effective Date may not be set forth in the table above, in which
case:
(i) if the Stock Price is between two Stock Prices in the table above or the
Effective Date is between two Effective Dates in the table, the number of Additional Shares by which the Conversion Rate shall be increased shall be determined by a straight-line interpolation between the number of Additional Shares set forth for
the higher and lower Stock Prices and the earlier and later Effective Dates, as applicable, based on a 365-day or 366-day year, as applicable;
(ii) if the Stock Price is greater than $45.50 per share (subject to adjustment in
the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate; and
(iii) if the Stock Price is less than $4.37 per share (subject to adjustment in
the same manner as the Stock Prices set forth in the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate.
Notwithstanding the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of Notes exceed 228.8329 shares of Common Stock, subject to adjustment in the same
manner as the Conversion Rate pursuant to Section 14.04.
(f) Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate that
would otherwise be required pursuant to Section 14.04 in respect of a Make-Whole Fundamental Change.
Section 14.04 Adjustment of Conversion Rate. The Conversion Rate shall be adjusted
from time to time by the Company if any of the following events occurs, except that the Company shall not make any adjustments to the Conversion Rate if Holders of the Notes participate (other than in the case of (x) a share split or share
combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 14.04, without having
to convert their Notes, as if they held a number of shares of Common Stock equal to the Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder.
(a) If the Company issues shares of Common Stock as a dividend or distribution on shares of the
Common Stock, or if the Company effects a share split or share combination, the Conversion Rate shall be adjusted based on the following formula:
77
where,
| CR0 | = | the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable; |
| CR1 | = | the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or Effective Date, as applicable; |
| OS0 | = | the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date, as applicable (before giving effect to any such dividend, distribution, split or combination); and |
| OS1 | = | the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, split or combination. |
Any adjustment made under this Section 14.04(a) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or
immediately after the open of business on the Effective Date for such share split or share combination, as applicable. If any dividend or distribution of the type described in this Section 14.04(a) is declared but not so paid or made, the
Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been
declared.
(b) If the Company distributes to all or substantially all holders of the Common Stock any rights,
options or warrants (other than pursuant to a stockholder rights plan) entitling them, for a period of not more than 60 days after the announcement date of such distribution, to subscribe for or purchase shares of the Common Stock at a price per
share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such distribution, the
Conversion Rate shall be increased based on the following formula:
where,
| CR0 | = |
the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution; |
| CR1 | = | the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; |
78
| OS0 | = | the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date; |
| X | = | the total number of shares of Common Stock distributable pursuant to such rights, options or warrants; and |
| Y | = | the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the distribution of such rights, options or warrants. |
Any increase made under this Section 14.04(b) shall be made successively whenever any such rights, options or warrants are distributed and shall become effective
immediately after the open of business on the Ex-Dividend Date for such distribution. To the extent that shares of the Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased
to the Conversion Rate that would then be in effect had the increase with respect to the distribution of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such
rights, options or warrants are not so distributed, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would then be in
effect if such Ex-Dividend Date for such distribution had not occurred.
For purposes of this Section 14.04(b), in determining whether any rights, options or warrants entitle the holders of Common Stock to subscribe for or purchase shares of the
Common Stock at less than such average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such distribution, and
in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof,
the value of such consideration, if other than cash, to be determined by the Company in good faith.
(c) If the Company distributes shares of its Capital Stock, evidences of its indebtedness, other
assets or property of the Company or rights, options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of the Common Stock, excluding (i) dividends, distributions or issuances (including share
splits) as to which an adjustment was effected pursuant to Section 14.04(a) or Section 14.04(b), (ii) except as otherwise provided in Section 14.11, rights issued pursuant to any stockholder rights plan of the Company then
in effect, (iii) distributions of Reference Property in exchange for, or upon conversion of, Common Stock in a Share Exchange Event, (iv) dividends or distributions paid exclusively in cash as to which the provisions set forth in Section
14.04(d) shall apply, and (v) Spin-Offs as to which the provisions set forth below in this Section 14.04(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or
warrants to acquire Capital Stock or other securities, the “Distributed Property”), then the Conversion Rate shall be increased based on the following formula:
79
where,
| CR0 | = | the Conversion Rate in effect immediately prior to 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; |
| SP0 | = | the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and |
| FMV | = | the fair market value (as determined by the Company in good faith) of the Distributed Property with respect to each outstanding share of the Common Stock on the Ex-Dividend Date for such distribution. |
Any increase made under the portion of this Section 14.04(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such
distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to pay or make such distribution, to the Conversion Rate that would then be in effect
if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each
$1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Stock receive the Distributed Property, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of
shares of Common Stock equal to the Conversion Rate in effect on the Ex-Dividend Date for the distribution.
With respect to an adjustment pursuant to this Section 14.04(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital
Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula:
where,
| CR0 | = | the Conversion Rate in effect immediately prior to the end of the Valuation Period; |
| CR1 | = | the Conversion Rate in effect immediately after the end of the Valuation Period; |
80
| FMV0 | = |
the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of the Common Stock (determined by reference to the definition of Last Reported Sale Price as set forth in Section 1.01 as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and |
| MP0 | = | the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period. |
The increase to the Conversion Rate under the preceding paragraph shall occur at the close of business on the last Trading Day of the Valuation Period; provided that (x) in respect of any conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the Valuation Period, the reference to “10” in the preceding paragraph shall be
deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date of such Spin-Off to, and including, the Conversion Date in determining the Conversion Rate and (y) in respect of any conversion
of Notes for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation Period, the reference to “10” in the preceding paragraph
shall be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date of such Spin-Off to, and including, such Trading Day in determining the Conversion Rate as of such Trading Day of such
Observation Period. If any dividend or distribution that constitutes a Spin-Off is declared but not so paid or made, the Conversion Rate shall be immediately decreased, effective as of the date the Board of Directors determines not to pay or make
such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared or announced.
For purposes of this Section 14.04(c) (and subject in all respect to Section 14.11), rights, options or warrants distributed by the Company to all holders of the
Common Stock entitling them to subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event
or events (“Trigger Event”): (i) are deemed to be transferred with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock,
shall be deemed not to have been distributed for purposes of this Section 14.04(c) (and no adjustment to the Conversion Rate under this Section 14.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon
such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 14.04(c). If any such right, option or warrant, including
any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the
existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any
Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section
14.04(c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be
readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all
holders of Common Stock as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be
readjusted as if such rights, options and warrants had not been issued.
81
For purposes of Section 14.04(a), Section 14.04(b) and this Section 14.04(c), if any dividend or distribution to which this Section 14.04(c) is
applicable also includes one or both of
(A) a dividend or distribution of shares of Common Stock to which Section
14.04(a) is applicable (the “Clause A Distribution”) or
(B) a dividend or distribution of rights, options or warrants to which Section
14.04(b) is applicable (the “Clause B Distribution”),
then, in either case, (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section
14.04(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 14.04(c) with respect to such Clause C Distribution shall then be made, and (2)
the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 14.04(a) and Section 14.04(b) with respect thereto shall then
be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common Stock
included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex‑Dividend Date or Effective Date” within the meaning of Section 14.04(a) or
“outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 14.04(b).
(d) If any cash dividend or distribution is made to all or substantially all holders of the Common
Stock, the Conversion Rate shall be adjusted based on the following formula:
where,
82
| CR0 | = |
the Conversion Rate in effect immediately prior to 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 the Ex-Dividend Date for such dividend or distribution; |
| SP0 | = | the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and |
| C | = | the amount in cash per share the Company distributes to all or substantially all holders of the Common Stock. |
Any increase pursuant to this Section 14.04(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If
such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in
effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive,
for each $1,000 principal amount of Notes it holds, at the same time and upon the same terms as holders of shares of the Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Common Stock
equal to the Conversion Rate on the Ex-Dividend Date for such cash dividend or distribution.
(e) If the Company or any of its Subsidiaries make a payment in respect of a tender or exchange
offer for the Common Stock that is subject to the then-applicable tender offer rules under the Exchange Act (other than any odd-lot tender offer), to the extent that the cash and value of any other consideration included in the payment per share
of the Common Stock exceeds the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may
be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula:
where,
| CR0 | = |
the Conversion Rate in effect immediately prior to the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; |
| CR1 | = | the Conversion Rate in effect immediately after the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; |
83
| AC |
= |
the aggregate value of all cash and any other consideration (as determined by the Company in good faith) paid or payable for shares of Common Stock purchased in such tender or exchange offer; |
| OS0 | = | the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); |
| OS1 | = |
the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and |
| SP1 | = | the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the date such tender or exchange offer expires. |
The increase to the Conversion Rate under this Section 14.04(e) shall occur at the close of business on the 10th Trading Day immediately following, and including, the
Trading Day next succeeding the date such tender or exchange offer expires; provided that (x) in respect of any conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion
Date occurs during the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references to “10” or “10th” in the preceding paragraph shall be deemed replaced with
such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the date that such tender or exchange offer expires to, and including, the Conversion Date in determining the Conversion Rate and (y) in respect
of any conversion of Notes for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the 10 Trading Days immediately following, and
including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references to “10” or “10th” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and
including, the Trading Day next succeeding the expiration date of such tender or exchange offer to, and including, such Trading Day in determining the Conversion Rate as of such Trading Day of such Observation Period.
If the Company or one of its Subsidiaries is obligated to purchase shares of Common Stock pursuant to any such tender or exchange offer described in this Section 14.04(e)
but the Company or such Subsidiary is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if
such tender or exchange offer had not been made or had been made only in respect of the purchases that have been made.
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(f) Notwithstanding this Section 14.04 or any other provision of this Indenture or the
Notes, if a Conversion Rate adjustment becomes effective on any Ex-Dividend Date, and a Holder that has converted its Notes on or after such Ex-Dividend Date and on or prior to the related Record Date would be treated as the record holder of the
shares of Common Stock as of the related Conversion Date as described under Section 14.02(i) based on an adjusted Conversion Rate for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment provisions in this Section
14.04, the Conversion Rate adjustment relating to such Ex-Dividend Date shall not be made for such converting Holder. Instead, such Holder shall be treated as if such Holder were the record owner of the shares of Common Stock on an
unadjusted basis and participate in the related dividend, distribution or other event giving rise to such adjustment.
(g) Except as stated herein, the Company shall not adjust the Conversion Rate for the issuance of
shares of the Common Stock or any securities convertible into or exchangeable for shares of the Common Stock or the right to purchase shares of the Common Stock or such convertible or exchangeable securities.
(h) In addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this Section
14.04, and subject to applicable exchange listing rules, the Company from time to time may increase the Conversion Rate by any amount for a period of at least 20 Business Days if the Company determines that such increase would be in the
Company’s best interest. In addition, subject to applicable exchange listing rules, the Company may (but is not required to) increase the Conversion Rate to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common
Stock in connection with a dividend or distribution of shares of Common Stock (or rights to acquire shares of Common Stock) or similar event. Whenever the Conversion Rate is increased pursuant to either of the preceding two sentences, the Company
shall deliver to the Holder of each Note, the Trustee and the Conversion Agent a notice of the increase at least 15 days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and
the period during which it will be in effect.
(i) Notwithstanding anything to the contrary in this Article 14, the Conversion Rate shall
not be adjusted:
(i) upon the issuance of any shares of Common Stock at a price below the
Conversion Price or otherwise, other than any such issuance described in clause (a), (b) or (c) of this Section 14.04;
(ii) upon the issuance of any shares of Common Stock pursuant to any present or
future plan providing for the reinvestment of dividends or interest payable on the Company’s securities and the investment of additional optional amounts in shares of Common Stock under any plan;
(iii) upon the issuance of any shares of Common Stock or options or rights to
purchase those shares pursuant to any present or future employee, director or consultant benefit or incentive plan or program (including pursuant to any evergreen plan) of or assumed by the Company or any of the Company’s Subsidiaries;
(iv) upon the issuance of any shares of the Common Stock pursuant to any option,
warrant, right or exercisable, exchangeable or convertible security not described in clause (iii) of this subsection and outstanding as of the date the Notes were first issued;
(v) for a third-party tender offer by any party other than a tender offer by one
or more of the Company’s Subsidiaries as described in clause (e) of this Section 14.04;
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(vi) upon the repurchase of any shares of Common Stock pursuant to an open market
share purchase program or other buy-back transaction, including structured or derivative transactions such as accelerated share repurchase transactions or similar forward derivatives, or other buy-back transaction, that is not a tender offer or
exchange offer of the kind described under clause (e) of this Section 14.04; or
(vii) solely for a change in the par value (or lack of par value) of the Common
Stock; or (viii) for accrued and unpaid interest, if any.
(j) All calculations and other determinations under this Article 14 shall be made by the
Company and shall be made to the nearest one-ten thousandth (1/10,000th) of a share.
(k) If an adjustment to the Conversion Rate otherwise required by this Section 14.04 would
result in a change of less than 1% to the Conversion Rate, then, notwithstanding the foregoing, the Company may, at its election, defer and carry forward such adjustment, except that all such deferred adjustments must be given effect immediately
upon the earliest to occur of the following: (i) when all such deferred adjustments would result in an aggregate change of at least 1% to the Conversion Rate, (ii) on the Conversion Date for any Notes (in the case of Physical Settlement), (iii)
on each Trading Day of any Observation Period related to any conversion of Notes (in the case of Cash Settlement or Combination Settlement), (iv) on any date on which the Company delivers a Notice of Redemption, (v) on the effective date of any
Fundamental Change or Make-Whole Fundamental Change, and (vi) April 8, 2033, in each case, unless the adjustment has already been made.
(l) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file
with the Trustee (and the Conversion Agent if not the Trustee) an Officer’s Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a
Responsible Officer of the Trustee and the Conversion Agent shall have received such Officer’s Certificate, the Trustee and the Conversion Agent shall not be deemed to have actual or constructive knowledge of any adjustment of the Conversion Rate
and may assume without inquiry that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the
adjusted Conversion Rate and the date on which each adjustment becomes effective and shall deliver such notice of such adjustment of the Conversion Rate to each Holder. Failure to deliver such notice shall not affect the legality or validity of
any such adjustment.
(m) For purposes of this Section 14.04, the number of shares of Common Stock at any time
outstanding shall not include shares of Common Stock held in the treasury of the Company so long as the Company does not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company, but shall include
shares of Common Stock issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
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Section 14.05 Adjustments of Prices. Whenever any provision of this Indenture
requires the Company to calculate the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts over a span of multiple days (including, without limitation, an Observation Period and the period for
determining the Stock Price for purposes of a Make-Whole Fundamental Change or a Notice of Redemption), the Company shall make appropriate adjustments (without duplication in respect of any adjustment made pursuant to Section 14.04) in good
faith to each to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective Date or expiration date, as the case may be, of the event
occurs at any time during the period when the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts are to be calculated.
Section 14.06 Shares to Be Fully Paid. On the Requisite Shareholder Approval Date and
at all times thereafter when any Notes are outstanding, the Company shall provide, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock to provide for conversion of the
Notes from time to time as such Notes are presented for conversion (assuming delivery of the maximum number of Additional Shares pursuant to Section 14.03 and that at the time of computation of such number of shares, all such Notes would be
converted by a single Holder (without regarding to any application of the Beneficial Ownership Limitations) and that Physical Settlement were applicable).
Section 14.07 Effect of Recapitalizations, Reclassifications and Changes of the Common Stock.
(a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other
than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination),
(ii) any consolidation, merger, combination or similar transaction involving the
Company,
(iii) any sale, lease or other transfer to a third party of the consolidated
assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange,
in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such
event, a “Share Exchange Event”), then, at and after the effective time of such Share Exchange Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such
principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate
immediately prior to such Share Exchange Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning
the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive on account of such Share Exchange Event) upon such Share Exchange Event and, prior to or at the effective time of such Share Exchange Event,
the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount
of Notes; provided, however, that at and after the effective time of the Share Exchange Event (A) the Company or the successor or acquiring Person, as the case may
be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 14.02 and (B) (I) any amount payable in cash upon conversion of the
Notes in accordance with Section 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 14.02 shall
instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Share Exchange Event, (III) for purposes of the provisions of Article 16, each reference
to any number of shares of Common Stock in such provisions (or in any related definitions) will instead be deemed to be a reference to the same number of units of Reference Property and (IV) the Daily VWAP shall be calculated based on the value of
a unit of Reference Property.
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If the Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part
upon any form of stockholder election), then the Reference Property into which the Notes will be convertible will be deemed to be (i) the weighted average of the types and amounts of consideration received by the holders of Common Stock that
affirmatively make such an election or (ii) if no holders of Common Stock make such an election, the weighted average of the types and amounts of consideration actually received by the holders of Common Stock. The Company shall notify Holders, the
Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Share Exchange Event, then for all
conversions for which the relevant Conversion Date occurs after the effective date of such Share Exchange Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the
Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the price paid per share of Common Stock in such Share
Exchange Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date.
If the Reference Property in respect of any Share Exchange Event includes, in whole or in part, common equity, the supplemental indenture described in the second immediately
preceding paragraph providing that the Notes will convertible into Reference Property shall also provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article
14 with respect to the portion of Reference Property constituting such common equity. If, in the case of any Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including any
combination thereof) of a Person other than the Company or the successor or purchasing Person, as the case may be, in such Share Exchange Event, then such supplemental indenture shall also be executed by such other Person, and shall contain such
additional provisions to protect the interests of the Holders as the Company shall in good faith reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
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If the Notes become convertible into Reference Property, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) in the form of an Officer’s
Certificate, and will issue a press release containing the relevant information, disclose the relevant information in a Current Report on Form 8-K or post such information on the Company’s website.
(b) When the Company executes a supplemental indenture pursuant to subsection (a) of this Section
14.07, the Company shall promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any
such Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice
of the execution of such supplemental indenture to be delivered to each Holder within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Share Exchange Event unless its terms are
consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as
set forth in Section 14.01 and Section 14.02 prior to the effective date of such Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Share Exchange
Events.
Section 14.08 Certain Covenants. (a) The Company covenants that all shares of Common
Stock issued upon conversion of Notes will be fully paid and non-assessable by the Company and free from all taxes, liens and charges with respect to the issue thereof.
(b) The Company covenants that, if any shares of Common Stock to be provided for the purpose of
conversion of Notes hereunder require registration with or approval of any governmental authority under any federal or state law before such shares of Common Stock may be validly issued upon conversion, the Company will, to the extent then
permitted by the rules and interpretations of the Commission, secure such registration or approval, as the case may be.
(c) The Company further covenants that if at any time the Common Stock shall be listed on any
national securities exchange or automated quotation system the Company will list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, any Common Stock issuable upon conversion of the
Notes.
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Section 14.09 Responsibility of Trustee. The Trustee and any other Conversion Agent shall not at any time be under any duty
or responsibility to any Holder to determine the Conversion Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment (including any increase) of the Conversion Rate, or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent shall not be accountable with
respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities, property or cash that may at any time be issued or delivered upon the conversion of any Note; and the Trustee and any other Conversion
Agent make no representations with respect thereto. Neither the Trustee nor any Conversion Agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities
or property or cash upon the surrender of any Note for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article 14. Without limiting the generality of the
foregoing, neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section 14.07 relating either to the
kind or amount of shares of stock or securities or property (including cash) receivable by Holders upon the conversion of their Notes after any event referred to in such Section 14.07 or to any adjustment to be made with respect thereto,
but, subject to the provisions of Section 7.01, may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officer’s Certificate (which
the Company shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto. Neither the Trustee nor the Conversion Agent shall be responsible for determining whether any event
contemplated by Section 14.01(b) has occurred that makes the Notes eligible for conversion or no longer eligible therefor until the Company has delivered to the Trustee and the Conversion Agent the notices referred to in Section
14.01(b) with respect to the commencement or termination of such conversion rights, on which notices the Trustee and the Conversion Agent may conclusively rely, and the Company agrees to deliver such notices to the Trustee and the Conversion
Agent immediately after the occurrence of any such event or at such other times as shall be provided for in Section 14.01(b). Neither the Trustee (in any capacity) nor the Conversion Agent shall have any obligation to make any calculation
or to determine whether the Notes may be surrendered for conversion pursuant to this Indenture, or to notify the Company or the Depositary or any of the Holders if the Notes have become convertible pursuant to the terms of this Indenture, or to
otherwise independently determine or verify if any Fundamental Change, Make-Whole Fundamental Change, Share Exchange Event, Trigger Event, or any other event has occurred or notify the Holders of any such event. Neither the Trustee nor Conversion
Agent shall have the responsibility for any act or omission of any Designated Financial Institution.
Section 14.10 Notice to Holders Prior to Certain Actions. In case of any:
(a) action by the Company or one of its Subsidiaries that would require an adjustment in the
Conversion Rate pursuant to Section 14.04 or Section 14.11; or
(b) voluntary or involuntary dissolution, liquidation or winding-up of the Company; then, in each
case (unless notice of such event is otherwise required pursuant to another provision of this Indenture), the Company shall cause to be filed with the Trustee and the Conversion Agent (if other than the Trustee) and to be delivered to each
Holder, as promptly as possible but in any event at least 10 days prior to the applicable date hereinafter specified, a notice stating (i) the date on which a record is to be taken for the purpose of such action by the Company or one of its
Subsidiaries or, if a record is not to be taken, the date as of which the holders of Common Stock of record are to be determined for the purposes of such action by the Company or one of its Subsidiaries, or (ii) the date on which such
dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property
deliverable upon such dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such action by the Company or one of its Subsidiaries, dissolution, liquidation or
winding-up.
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Section 14.11 Stockholder Rights Plans. If the Company has a stockholder rights plan
in effect upon conversion of the Notes, each share of Common Stock, if any, issued upon such conversion shall be entitled to receive the appropriate number of rights, if any, and the certificates representing the Common Stock issued upon such
conversion shall bear such legends, if any, in each case as may be provided by the terms of any such stockholder rights plan, as the same may be amended from time to time. However, if, prior to any conversion of Notes, the rights have separated
from the shares of Common Stock in accordance with the provisions of the applicable stockholder rights plan, the Conversion Rate shall be adjusted at the time of separation as if the Company distributed to all or substantially all holders of the
Common Stock Distributed Property as provided in Section 14.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights.
Section 14.12 Exchange in Lieu of Conversion.
(a) When a Holder surrenders its Notes for conversion, the Company may, at its election (an “Exchange Election”), direct the Conversion Agent to surrender, on or prior to the Trading Day immediately following the Conversion Date, such Notes to one or more financial institutions designated by the
Company (each, a “Designated Financial Institution”) for exchange in lieu of conversion. In order to accept any Notes surrendered for conversion, the Designated Financial Institution(s) must agree to timely
pay or deliver, as the case may be, in exchange for such Notes, the cash, shares of Common Stock or combination thereof that would otherwise be due upon conversion pursuant to Section 14.02 or such other amount agreed to by the Holder and
the Designated Financial Institution(s) (the “Conversion Consideration”). If the Company makes an Exchange Election, the Company shall, by the close of business on the Trading Day following the relevant
Conversion Date, notify in writing the Trustee, the Conversion Agent (if other than the Trustee) and the Holder surrendering Notes for conversion that the Company has made the Exchange Election, and the Company shall promptly notify the
Designated Financial Institution(s) of the relevant deadline for delivery of the Conversion Consideration and the type of Conversion Consideration to be paid or delivered, as the case may be.
(b) Any Notes delivered to the Designated Financial Institution(s) shall remain outstanding,
subject to the applicable procedures of the Depositary. If the Designated Financial Institution(s) agree(s) to accept any Notes for exchange but do(es) not timely pay or deliver, as the case may be, the related Conversion Consideration, or if
such Designated Financial Institution(s) do(es) not accept the Notes for exchange, the Company shall pay or deliver, as the case may be, the relevant Conversion Consideration, as, and at the time, required pursuant to this Indenture as if the
Company had not made the Exchange Election.
(c) The Company’s designation of any Designated Financial Institution(s) to which the Notes may be
submitted for exchange does not require such Designated Financial Institution(s) to accept any Notes.
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Section 14.13 Beneficial Ownership Limitations. (a) Notwithstanding anything to
the contrary in this Indenture or the Notes, for so long as shares of Common Stock are registered under the Exchange Act, the Company will not effect any conversion of a Note (or any portion of such Note) by a Holder, and such Holder shall not have
the right to convert such Note (or any portion of such Note), to the extent (but only to the extent) that, after giving effect to such conversion, such Holder together with such Holder’s Attribution Parties collectively would beneficially own
shares of Common Stock in excess of such Holder’s Beneficial Ownership Limitation.
(b) For purposes of calculating a Holder’s Beneficial Ownership Limitation, the number of shares of
Common Stock beneficially owned by such Holder and its Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of the Notes (or any portion of such Notes) with respect to which such determination is being
made, but shall exclude the number of shares of Common Stock issuable upon (i) conversion of the remaining, unconverted Notes (and any remaining, unconverted portions thereof) beneficially owned by such Holder or any of its Attribution Parties
and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Holder or any of its Attribution Parties and which securities are subject to a limitation on conversion or
exercise analogous to the limitation described in this Section 14.13. Except as set forth in the preceding sentence, for purposes of this Section 14.13, all beneficial ownership calculations shall be made in accordance with
Section 13(d) of the Exchange Act.
(c) The determination of whether a Note (or any portion of such Note) is convertible in relation to
any other securities beneficially owned by the Holder or any of its Attribution Parties shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be such submitting Holder’s determination that
the applicable Notes (or portions of such Notes) may be converted in relation to other securities beneficially owned by the Holder and its Attribution Parties in compliance with this Section 14.13. To ensure compliance with this Section
14.13, any Holder submitting a Notice of Conversion shall be deemed to represent to the Company as of the submission of such Notice of Conversion that, to such Holder’s knowledge, such Notice of Conversion and the conversion of the Notes
(or portions of such Notes) as stated therein does not violate the restrictions set forth in this Section 14.13 with regard to such Holder. For purposes of determining the number of outstanding shares of Common Stock a Holder may acquire
upon the conversion of any Note (or any portion of any Note) without exceeding the applicable Beneficial Ownership Limitation, such Holder may rely on the number of shares of Common Stock outstanding as reflected in (i) the Company’s most recent
Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the Commission, as the case may be, (ii) a more recent public announcement by the Company or (iii) any other written notice by the
Company or the Company’s transfer agent setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Notice of Conversion from a Holder
at a time when the actual number of shares of Common Stock outstanding is less than the Reported Outstanding Share Number, the Company shall notify such Holder in writing no later than one Business Day following the date the Company received such
Notice of Conversion of the number of shares of Common Stock then outstanding and, to the extent that such Notice of Conversion would otherwise cause such Holder’s beneficial ownership (together with such Holder’s Attribution Parties
collectively), as determined pursuant to this Section 14.13, to exceed the Beneficial Ownership Limitation, such Holder must notify the Company of a reduced number of Notes to be converted pursuant to such Notice of Conversion. For any
reason at any time, upon the written or oral request of any Holder, the Company shall within one Business Day confirm orally and in writing to such Holder the number of shares of Common Stock then outstanding. In any case, the number of
outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including the Notes, by the Holder or any of its Attribution Parties since the date as of which the Reported
Outstanding Share Number was reported.
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(d) The Company shall not issue to any Holder any shares of Common Stock in connection with the
conversion of any Note (or any portion of such Note) that would result in such Holder together with its Attribution Parties being deemed to beneficially own, in the aggregate, more than such Holder’s Beneficial Ownership Limitation. If the
issuance of shares of Common Stock to a Holder upon any conversion would result in such Holder together with its Attribution Parties being deemed to beneficially own, in the aggregate, more than such Holder’s Beneficial Ownership Limitation, the
number of shares of Common Stock so issued by which the relevant Holder’s and its Attribution Parties’ aggregate beneficial ownership exceeds the Beneficial Ownership Limitation (the “Excess Shares”) shall
be deemed null and void and shall be cancelled ab initio, and such Holder shall not have power to vote or transfer the Excess Shares; provided that both the
conversion into Excess Shares and issuance of Excess Shares will be deemed null and void and the corresponding Notes (or portion of such Notes) will remain outstanding and will be deemed not to have been converted.
(e) For purposes of clarity, any shares of Common Stock issuable to any Holder or its Attribution
Parties pursuant to the terms of this Indenture or the Notes in excess of such Person’s Beneficial Ownership Limitation shall not be deemed to be beneficially owned by such Holder or any of its Attribution Parties for any purpose including for
purposes of Section 13(d) of the Exchange Act or Rule 16a-1(a)(1) under the Exchange Act. No prior inability to convert any Notes (or any portion of any Notes) pursuant to this Section 14.13 shall have any effect on the applicability of
the provisions of this Section 14.13 with respect to any subsequent determination of convertibility. This Section 14.13 (and all related definitions) shall be construed and implemented in a manner otherwise than in strict
conformity with their terms to correct such terms (or any portion hereof) which may be defective or inconsistent with the intended limitation on beneficial ownership contained herein or to make changes or supplements necessary or desirable to
properly give effect to such limitation. The limitation contained in this Section 14.13 may not be waived and shall apply to each successor Holder of any Notes (or any portion of any Notes).
(f) Neither the Trustee nor the Conversion Agent shall have any responsibility to determine any
Holder’s Beneficial Ownership Limitation or whether the issuance of any shares of Common Stock complies with this Section 14.13 or to otherwise determine or monitor compliance with the terms of this Section 14.13.
ARTICLE 15
REPURCHASE OF NOTES AT OPTION OF HOLDERS
Section 15.01 [Intentionally Omitted]
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Section 15.02 Repurchase at Option of Holders Upon a Fundamental Change. (a) If a
Fundamental Change (other than an Exempted Fundamental Change pursuant to Section 15.02(f)) occurs at any time, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s
Notes, or any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to $1,000 or an integral multiple of $1,000, on the date (the “Fundamental
Change Repurchase Date”) specified by the Company that is not less than 20 Business Days or more than 35 Business Days following the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount
thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the
Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest
to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant to this Article 15.
(b) Repurchases of Notes under this Section 15.02 shall be made, at the option of the
Holder thereof, upon:
(i) delivery to the Paying Agent by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes,
or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case, on or before the close of business on the Business Day immediately preceding the Fundamental Change
Repurchase Date; and
(ii) delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent
at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the Notes, if the Notes are Global Notes,
in compliance with the procedures of the Depositary, in each case, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor.
The Fundamental Change Repurchase Notice in respect of any Physical Notes to be repurchased shall state:
(i) the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of Notes to be repurchased, which must
be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the
applicable provisions of the Notes and this Indenture.
If the Notes are Global Notes, to exercise the Fundamental Change repurchase right, Holders must surrender their Notes in accordance with applicable Depositary procedures.
Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall
have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice
of withdrawal to the Paying Agent in accordance with Section 15.03.
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The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c) On or before the 20th Business Day after the occurrence of the effective date of a Fundamental
Change, subject to Section 15.02(f), the Company shall provide to all Holders and the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change
Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class
mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant
to this Article 15;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent, if
applicable;
(vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate
as a result of the Fundamental Change (or related Make-Whole Fundamental Change);
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice
has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase
their Notes.
No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the
repurchase of the Notes pursuant to this Section 15.02.
At the Company’s request, given at least two Business Days prior to the date the Fundamental Change Company Notice is to be sent (or such shorter period as may be agreed to by the
Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Fundamental
Change Company Notice shall be prepared by the Company.
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(d) Notwithstanding anything to the contrary in this Article 15, the Company shall not be
required to repurchase or make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the
Company as set forth in this Article 15 and such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an
offer made by the Company as set forth above.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the
option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by
the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except
in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the
applicable procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(f) Notwithstanding anything to the contrary in this Section 15.02, the Company shall not
be required to send a Fundamental Change Company Notice, or offer to repurchase or repurchase any Notes, as set forth in this Article 15, in connection with a Fundamental Change occurring pursuant to clause (b)(A) or (B) (or pursuant to
clause (a) that also constitutes a Fundamental Change occurring pursuant to clause (b)(A) or (B)) of the definition thereof, if: (i) such Fundamental Change constitutes a Share Exchange Event pursuant to Section 14.07 whose Reference
Property consists entirely of cash in U.S. dollars; (ii) immediately after such Fundamental Change, the Notes become convertible (pursuant to Section 14.07 and, if applicable, Section 14.03) into consideration that consists solely
of U.S. dollars in an amount per $1,000 principal amount of Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of Notes (calculated assuming that the same includes the maximum amount of accrued but
unpaid interest payable as part of the Fundamental Change Repurchase Price for such Fundamental Change); and (iii) the Company timely sends the notice relating to such Fundamental Change required pursuant to Section 14.01(b)(iii). Any
Fundamental Change with respect to which, in accordance with the provisions described in this Section 15.02(f), the Company is not required to offer to repurchase any Notes is referred to as herein as an “Exempted
Fundamental Change.”
Section 15.03 Withdrawal of Fundamental Change Repurchase Notice. A Fundamental
Change Repurchase Notice may be withdrawn (in whole or in part) in respect of Physical Notes by means of a written notice of withdrawal delivered to the Corporate Trust Office of the Paying Agent in accordance with this Section 15.03 at any
time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:
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(i) the principal amount of the Notes with respect to which such notice of
withdrawal is being submitted, which must be $1,000 or an integral multiple thereof,
(ii) the certificate number of the Note in respect of which such notice of
withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the
original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
provided, however, that if the Notes are Global Notes, Holders may
withdraw their Notes subject to repurchase at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date in accordance with applicable procedures of the Depositary.
Section 15.04 Deposit of Fundamental Change Repurchase Price. (a) The Company will
deposit with the Trustee (or other Paying Agent appointed by the Company, or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 4.04) on or prior to 11:00 a.m., New York City
time, on the Fundamental Change Repurchase Date an amount of money sufficient to repurchase all of the Notes to be repurchased at the appropriate Fundamental Change Repurchase Price. Subject to receipt of funds by the Trustee (or other Paying Agent
appointed by the Company), payment for Notes surrendered for repurchase (and not validly withdrawn prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date) will be made on the later of (i) the
Fundamental Change Repurchase Date (provided the Holder has satisfied the conditions in Section 15.02) and (ii) the time of book-entry transfer or the delivery of such Note to the Trustee (or other
Paying Agent appointed by the Company) by the Holder thereof in the manner required by Section 15.02 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register; provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The
Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.
(b) If by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the Trustee (or
other Paying Agent appointed by the Company) holds money sufficient to pay the Fundamental Change Repurchase Price (and, to the extent not included in the Fundamental Change Repurchase Price, accrued and unpaid interest, if applicable) of the
Notes to be repurchased on such Fundamental Change Repurchase Date, then, with respect to the Notes that have been properly surrendered for repurchase and have not been validly withdrawn, (i) such Notes will cease to be outstanding, (ii) interest
will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or whether or not the Notes have been delivered to the Trustee or Paying Agent) and (iii) all other rights of the Holders of such Notes will
terminate (other than the right to receive the Fundamental Change Repurchase Price and, to the extent not included in the Fundamental Change Repurchase Price, accrued and unpaid interest, if applicable).
(c) Upon surrender of a Note that is to be repurchased in part pursuant to Section 15.02,
the Company shall execute and the Trustee shall authenticate and deliver to the Holder a new Note in an authorized denomination equal in principal amount to the unrepurchased portion of the Note surrendered.
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Section 15.05 Covenant to Comply with Applicable Laws Upon Repurchase of Notes. In connection with any repurchase offer upon
a Fundamental Change pursuant to this Article 15, the Company will, if required:
(a) comply with the tender offer rules under the Exchange Act that may then be applicable;
(b) file a Schedule TO or any other required schedule under the Exchange Act; and
(c) otherwise comply in all material respects with all federal and state securities laws in
connection with any offer by the Company to repurchase the Notes;
in each case, so as to permit the rights and obligations under this Article 15 to be exercised in the time and in the manner specified in this Article 15.
To the extent that, as a result of a change in law occurring after the first date on which the Notes are issued, the provisions of any securities laws or regulations conflict with
the provisions of this Indenture relating to the Company’s obligations to repurchase the Notes upon a Fundamental Change, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its
obligations under such provisions of this Indenture by virtue of such conflict.
ARTICLE 16
OPTIONAL REDEMPTION
Section 16.01 [Intentionally Omitted]
Section 16.02 Optional Redemption. No sinking fund is provided for the Notes. The Notes shall not be redeemable by the
Company prior to July 8, 2030. On or after July 8, 2030, the Company may redeem (an “Optional Redemption”) for cash all or any portion of the Notes, at the Redemption Price, at the Company’s option, if (a)
the Notes are Freely Tradable as of the date the Company sends the related Notice of Redemption, unless a Redemption Cash Settlement Election applies, 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 the date the Company sends such Notice of Redemption; and (b) the Last Reported Sale Price of the Common Stock has been at least 130% of the Conversion Price then in effect for at least 20 Trading Days
(whether or not consecutive), including the Trading Day immediately preceding the date on which the Company provides the Notice of Redemption in accordance with Section 16.03, during any 30 consecutive Trading Day period ending on, and
including, the Trading Day immediately preceding the date on which the Company provides the Notice of Redemption in accordance with Section 16.03 (a “Redemption Notice Date”). For purposes of the
immediately preceding sentence, a “Redemption Cash Settlement Election” will apply if the Company elects, in accordance with Section 14.02(a), to settle all conversions of Called Notes for such
Optional Redemption on or after the date the Company sends the related Notice of Redemption and on or before the close of business on the second Business Day prior to the related Redemption Date by Cash Settlement.
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Section 16.03 Notice of Optional Redemption; Selection of Notes. (a) In case the
Company exercises its Optional Redemption right to redeem all or, as the case may be, any part of the Notes pursuant to Section 16.02, it shall fix a date for redemption (each, a “Redemption Date”)
and it or, at its written request set forth in an Officer’s Certificate received by the Trustee not less than five (5) days prior to the date the Notice of Redemption is to be sent to Holders (or such shorter period of time as may be acceptable to
the Trustee), the Trustee, in the name of and at the expense of the Company, shall deliver or cause to be delivered a notice of such Optional Redemption (a “Notice of Redemption”) not less than 25 nor more
than 45 Scheduled Trading Days prior to the Redemption Date to the Trustee, the Paying Agent (if other than the Trustee) and each Holder of Notes to be redeemed as a whole or in part; provided, however, that, if the Company shall give such notice, it shall also give written notice of the Redemption Date to the Trustee and the Paying Agent (if other than the Trustee); provided
further that if, in accordance with the provisions described in Section 14.02(a)(iii), the Company elects to settle all conversions of Notes with a Conversion Date that occurs on or after the date the Company sends a Notice of
Redemption and before the related Redemption Date by Physical Settlement, then the Company may instead elect to choose a Redemption Date not less than 20 calendar days nor more than 50 Scheduled Trading Days after the date the Company sends such
Notice of Redemption. In all cases, the Redemption Date must be a Business Day, and the Company may not specify a Redemption Date that falls after the 21st Scheduled Trading Day immediately preceding the Maturity Date.
(b) The Notice of Redemption, if delivered in the manner herein provided, shall be conclusively
presumed to have been duly given, whether or not the Holder receives such notice. In any case, failure to give such Notice of Redemption or any defect in the Notice of Redemption to the Holder of any Note designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of any other Note.
(c) Each Notice of Redemption shall specify:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) that on the Redemption Date, the Redemption Price will become due and
payable upon each Note to be redeemed, and that interest thereon, if any, shall cease to accrue on and after the Redemption Date;
(iv) the place or places where such Notes are to be surrendered for payment of
the Redemption Price;
(v) that Holders of Called Notes may surrender their Notes for conversion at any
time prior to the close of business on the second Business Day immediately preceding the Redemption Date;
(vi) the procedures a converting Holder must follow to convert its Called Notes and
the Settlement Method and Specified Dollar Amount, if applicable;
(vii) the Conversion Rate and, if applicable, the number of Additional Shares
added to the Conversion Rate in accordance with Section 14.03;
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(viii) the CUSIP, ISIN or other similar numbers, if any, assigned to such Notes;
and
(ix) in case any Note is to be redeemed in part only, the portion of the
principal amount thereof to be redeemed and on and after the Redemption Date, upon surrender of such Note, a new Note in principal amount equal to the unredeemed portion thereof shall be issued.
A Notice of Redemption shall be irrevocable.
(d) If fewer than all of the outstanding Notes are to be redeemed and the Notes to be redeemed are
Global Notes, the Notes to be redeemed shall be selected by the Depositary in accordance with the applicable procedures of the Depositary. If fewer than all of the outstanding Notes are to be redeemed and the Notes to be redeemed are not Global
Notes, the Notes to be redeemed will be selected by the Trustee by a method that is similar to the selection procedures the Depositary would have applied if the Notes had been Global Notes, or by such other method as the Trustee shall deem fair
and appropriate. If any Note selected for partial redemption is submitted for conversion in part after such selection, the portion of the Note submitted for conversion shall be deemed (so far as may be possible) to be the portion selected for
redemption, subject, in the case of Notes represented by a Global Note, to the Depositary’s applicable procedures.
Section 16.04 Payment of Notes Called for Redemption. (a) If any Notice of
Redemption has been given in respect of the Notes in accordance with Section 16.03, the Notes shall become due and payable on the Redemption Date at the place or places stated in the Notice of Redemption and at the applicable Redemption
Price. On presentation and surrender of the Notes at the place or places stated in the Notice of Redemption, the Notes shall be paid and redeemed by the Company at the applicable Redemption Price.
(b) Prior to 11:00 a.m. New York City time on the Redemption Date, the Company shall deposit with
the Paying Agent or, if the Company or a Subsidiary of the Company is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 7.05 an amount of cash (in immediately available funds if deposited on the
Redemption Date), sufficient to pay the Redemption Price of all of the Notes to be redeemed on such Redemption Date. Subject to receipt of funds by the Paying Agent, payment for the Notes to be redeemed shall be made on the Redemption Date for
such Notes. The Paying Agent shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Redemption Price.
Section 16.05 Restrictions on Redemption. The Company may not redeem any Notes on any date if the principal amount of the
Notes has been accelerated in accordance with the terms of this Indenture, and such acceleration has not been rescinded, on or prior to the Redemption Date (except in the case of an acceleration resulting from a Default by the Company in the
payment of the Redemption Price with respect to such Notes).
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ARTICLE 17
MISCELLANEOUS PROVISIONS
Section 17.01 Provisions Binding on Successors. All the covenants, stipulations, promises and agreements of the Company
contained in this Indenture shall bind its successors and assigns whether so expressed or not. All the covenants, stipulations, promises and agreements of each of the Guarantors contained in this Indenture shall bind its successors and assigns
whether so expressed or not.
Section 17.02 Official Acts by Successor. Any act or proceeding by any provision of this Indenture authorized or required to
be done or performed by any board, committee or Officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation or other entity that shall at the time be the lawful
sole successor of the Company. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or Officer of a Guarantor shall and may be done and performed with like force and effect
by the like board, committee or officer of any corporation or other entity that shall at the time be the lawful sole successor of such Guarantor.
Section 17.03 Addresses for Notices, Etc. Any notice or demand that by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders on the Company or on any Guarantor shall be deemed to have been sufficiently given or made, for all purposes if given or served by overnight courier or by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed (until another address is filed by the Company with the Trustee) to Bed Bath & Beyond, Inc., 433 W. Ascension Way, 3rd Floor Murray, Utah 84123, Attention: General
Counsel. Any notice, direction, request or demand hereunder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or served by being deposited postage prepaid by registered or certified mail in a
post office letter box addressed to the Corporate Trust Office upon actual receipt. All notices, approvals, consents, requests and any communications hereunder must be in writing.
The Trustee, by notice to the Company, may designate additional or different addresses for subsequent notices or communications.
Any notice or communication delivered or to be delivered to a Holder of Physical Notes shall be mailed to it by first class mail, postage prepaid, at its address as it appears on
the Note Register and shall be sufficiently given to it if so mailed within the time prescribed. Any notice or communication delivered or to be delivered to a Holder of Global Notes shall be delivered in accordance with the applicable procedures of
the Depositary and shall be sufficiently given to it if so delivered within the time prescribed. Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any
Fundamental Change Company Notice) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its
designee, including by electronic mail in accordance with the Depositary’s applicable procedures.
Failure to mail or deliver a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is
mailed or delivered, as the case may be, in the manner provided above, it is duly given, whether or not the addressee receives it.
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In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders by mail, then such notification
as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 17.04 Governing Law; Jurisdiction. THIS INDENTURE AND EACH NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER
OR RELATED TO THIS INDENTURE AND EACH NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Each of the Company and each Guarantor irrevocably consents and agrees, for the benefit of the Holders from time to time of the Notes and the Trustee, that any legal action, suit
or proceeding against it with respect to obligations, liabilities or any other matter arising out of or in connection with this Indenture or the Notes may be brought in the courts of the State of New York or the courts of the United States located
in the Borough of Manhattan, New York City, New York and, until amounts due and to become due in respect of the Notes have been paid, hereby irrevocably consents and submits to the non-exclusive jurisdiction of each such court in personam, generally and unconditionally with respect to any action, suit or proceeding for itself in respect of its properties, assets and revenues.
Each of the Company and each Guarantor irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the
laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Indenture brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New
York City, New York and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
Section 17.05 Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee. Upon any
application or demand by the Company or any Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the Company or such Guarantor, as the case may be, shall, if requested by the Trustee, furnish to the Trustee an
Officer’s Certificate and Opinion of Counsel stating that such action is permitted by the terms of this Indenture and that all conditions precedent to such action have been complied with.
Each Officer’s Certificate and Opinion of Counsel provided for, by or on behalf of the Company in this Indenture and delivered to the Trustee with respect to compliance with this
Indenture (other than the Officer’s Certificates provided for in Section 4.08) shall include (a) a statement that the person signing such certificate is familiar with the requested action and this Indenture; (b) a brief statement as to the
nature and scope of the examination or investigation upon which the statement contained in such certificate is based; (c) a statement that, in the judgment of such person, he or she has made such examination or investigation as is necessary to
enable him or her to express an informed judgment as to whether or not such action is permitted by this Indenture; and (d) a statement as to whether or not, in the judgment of such person, such action is permitted by this Indenture and that all
conditions precedent to such action have been complied with; provided that no Opinion of Counsel shall be required to be delivered in connection with (1) the original issuance of Notes on the date hereof
under this Indenture, (2) the mandatory exchange of the restricted CUSIP of the Restricted Securities to an unrestricted CUSIP pursuant to the applicable procedures of the Depositary upon the Notes becoming Freely Tradable, or (3) a request by the
Company that the Trustee deliver a notice to Holders under the Indenture where the Trustee receives an Officer’s Certificate with respect to such notice. With respect to matters of fact, an Opinion of Counsel may rely on an Officer’s Certificate or
certificates of public officials.
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Notwithstanding anything to the contrary in this Section 17.05, if any provision in this Indenture specifically provides that the Trustee shall or may receive an Opinion of
Counsel in connection with any action to be taken by the Trustee or the Company hereunder, the Trustee shall be entitled to such Opinion of Counsel.
Section 17.06 Legal Holidays. In any case where any Interest Payment Date, any
Fundamental Change Repurchase Date, any Redemption Date or the Maturity Date is not a Business Day, then any action to be taken on such date need not be taken on such date, but may be taken on the next succeeding Business Day with the same force
and effect as if taken on such date, and no interest shall accrue in respect of the delay; provided, however, for purposes of this Section 17.06, 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.
Section 17.07 No Security Interest Created. Nothing in this Indenture or in the
Notes, expressed or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.
Section 17.08 Benefits of Indenture. Nothing in this Indenture or in the Notes,
expressed or implied, shall give to any Person, other than the Holders, the parties hereto, any Paying Agent, any Conversion Agent, any authenticating agent, any Note Registrar and their successors hereunder, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 17.09 Table of Contents, Headings, Etc. The table of contents
and the titles and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 17.10 Authenticating Agent. The Trustee may appoint an authenticating agent
that shall be authorized to act on its behalf and subject to its direction in the authentication and delivery of Notes in connection with the original issuance thereof and transfers and exchanges of Notes hereunder, including under Section 2.04,
Section 2.05, Section 2.06, Section 2.07, Section 10.04 and Section 15.04 as fully to all intents and purposes as though the authenticating agent had been expressly authorized by this Indenture and those
Sections to authenticate and deliver Notes. For all purposes of this Indenture, the authentication and delivery of Notes by the authenticating agent shall be deemed to be authentication and delivery of such Notes “by the Trustee” and a certificate
of authentication executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any requirement hereunder or in the Notes for the Trustee’s certificate of authentication. Such authenticating agent shall at all times be a
Person eligible to serve as trustee hereunder pursuant to Section 7.08.
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Any corporation or other entity into which any authenticating agent may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting
from any merger, consolidation or conversion to which any authenticating agent shall be a party, or any corporation or other entity succeeding to all or substantially all the corporate trust business or assets of any authenticating agent, shall be
the successor of the authenticating agent hereunder, if such successor corporation or other entity is otherwise eligible under this Section 17.10, without the execution or filing of any paper or any further act on the part of the parties
hereto or the authenticating agent or such successor corporation or other entity.
Any authenticating agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any
authenticating agent by giving written notice of termination to such authenticating agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any authenticating agent shall cease to be
eligible under this Section, the Trustee may appoint a successor authenticating agent (which may be the Trustee), shall give written notice of such appointment to the Company and shall deliver notice of such appointment to all Holders.
The Company agrees to pay to the authenticating agent from time to time reasonable compensation for its services although the Company may terminate the authenticating agent, if it
determines such agent’s fees to be unreasonable.
The provisions of Section 7.02, Section 7.03, Section 7.04, Section 8.03 and this Section 17.10 shall be applicable to any authenticating
agent.
If an authenticating agent is appointed pursuant to this Section 17.10, the Notes may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an
alternative certificate of authentication in the following form:
as Authenticating Agent, certifies that this is one of the Notes described in the within-named Indenture.
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Authorized Officer
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Section 17.11 Execution in Counterparts; Electronic Signatures. This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute
effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original
signatures for all purposes. This Indenture (and any document delivered in connection with this Indenture) shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party
by means of (i) any electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including
relevant provisions of the Uniform Commercial Code (collectively, “Signature Law”); (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual
signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any
faxed, scanned, or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. For avoidance of doubt, original manual signatures
shall be used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings. The Company agrees to assume all risks arising out of the use of using digital
signatures and electronic methods to submit communications to Trustee, including without limitation the risk of Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
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Section 17.12 Severability. In the event any provision of this Indenture or in the
Notes shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.
Section 17.13 Waiver of Jury Trial. EACH OF THE COMPANY, EACH GUARANTOR AND THE
TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 17.14 Force Majeure. In no event shall the Trustee be responsible or liable
for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, any provision of any present or future law or regulation or act
of any governmental authority, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, war, disease, pandemics, epidemics, recognized public emergencies, quarantine restrictions, nuclear or natural catastrophes
or acts of God, interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, and hacking, cyber-attacks, unavailability of the Federal Reserve Bank wire or telex system or other applicable wire or
funds transfer system, unavailability of any securities clearing system, or other use or infiltration of the Trustee’s technological infrastructure exceeding authorized access; it being understood that the Trustee shall use reasonable efforts that
are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 17.15 Calculations. Except as otherwise provided herein, the Company shall be responsible for making all calculations
called for under the Notes. These calculations include, but are not limited to, determinations of the Last Reported Sale Prices of the Common Stock, the Daily VWAPs, the Daily Conversion Values, the Daily Settlement Amounts, the Exchange Cap,
accrued interest payable on the Notes (including Additional Interest or Deferred Additional Interest), the Redemption Price and the Conversion Rate of the Notes. The Company shall make all these calculations in good faith and, absent manifest
error, the Company’s calculations shall be final and binding on Holders of Notes. The Company shall provide a schedule of its calculations to each of the Trustee and the Conversion Agent, and each of the Trustee and Conversion Agent is entitled to
rely conclusively upon the accuracy of the Company’s calculations without independent verification. The Trustee will forward the Company’s calculations to any Holder of Notes upon the written request of that Holder at the sole cost and expense of
the Company.
105
Section 17.16 USA PATRIOT Act. The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the
Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or
opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
Section 17.17 Tax Matters. The Company and the Holders of the Notes by acceptance of their Notes intend, for U.S. federal
(and applicable state and local) income tax purposes: (i) to treat the Notes as indebtedness that are not "contingent payment debt instruments" within the meaning of Treasury Regulations Section 1.1275-4, (ii) to treat any adjustment to the
Conversion Rate of the Notes pursuant to Section 14.04 (other than clause (e) thereof), Section 14.07 or Section 14.11 as being made pursuant to a "bona fide, adjustment formula" within the meaning of Treasury Regulations
Section 1.305-7 (except to the extent otherwise required pursuant to the last sentence of Treasury Regulations Section 1.305-7(b)(1)), and (iii) to treat any adjustment to the Conversion Rate occurring pursuant to Section 14.03 or Section
14.04(e) as not giving rise to a constructive distribution pursuant to Section 305 of the Code. The Company and the Holders of the Notes by acceptance of their Notes agree that they shall not take any position for U.S. federal (and applicable
state and local) income tax purposes inconsistent with the foregoing clauses (i) through (iii), in each case, except to the extent otherwise required by a change in applicable law or a “determination” within the meaning of Section 1313(a) of the
Code.
Section 17.18 Withholding Taxes. Any applicable withholding taxes (including backup withholding) required by applicable tax
law to be withheld may be withheld from interest and payments upon conversion, repurchase or maturity of the Notes, or if any applicable withholding taxes (including backup withholding) required by applicable tax law to be withheld are paid by the
Company on behalf of a Holder or beneficial owner of Notes, those withholding taxes may be set off against payments of cash or Common Stock, if any, payable on the Notes (or, in some circumstances, any payments on the Common Stock) or sales
proceeds received by or other funds or assets of the applicable Holder or beneficial owner of Notes.
[Remainder of page intentionally left blank]
106
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first written above.
|
BED BATH & BEYOND, INC.
|
||
|
By:
|
/s/ Brian LaRose
|
|
|
Name: Brian LaRose
|
||
|
Title: Chief Financial Officer
|
||
[Signature Page to Indenture]
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first written above.
|
BED BATH & BEYOND FRANCHISING, INC.,
|
||
|
as Guarantor
|
||
|
By:
|
/s/ Amy Sullivan
|
|
|
Name: Amy Sullivan
|
||
|
Title: President
|
||
|
BEYOND HOME SERVICES, LLC,
|
||
|
as Guarantor
|
||
|
By:
|
/s/ Amy Sullivan
|
|
|
Name: Amy Sullivan
|
||
|
Title: President
|
||
|
COMMERCIAL STRATEGIES, INC.,
|
||
|
as Guarantor
|
||
|
By:
|
/s/ Brian LaRose
|
|
|
Name: Brian LaRose
|
||
|
Title: President
|
||
|
KIRKLAND’S FRANCHISING INC.,
|
||
|
as Guarantor
|
||
|
By:
|
/s/ Marcus Lemonis
|
|
|
Name: Marcus Lemonis
|
||
|
Title: President
|
||
|
O.COM GIFT CARDS, INC.,
|
||
|
as Guarantor
|
||
|
By:
|
/s/ Marcus Lemonis
|
|
|
Name: Marcus Lemonis
|
||
|
Title: President
|
||
[Signature Page to Indenture]
|
OVERSTOCK.COM SERVICES, INC.,
|
||
|
as Guarantor
|
||
|
By:
|
/s/ Amy Sullivan
|
|
|
Name: Amy Sullivan
|
||
|
Title: President
|
||
|
SFV-LLGC, LLC,
|
||
|
as Guarantor
|
||
|
By:
|
/s/ Amy Sullivan
|
|
|
Name: Amy Sullivan
|
||
|
Title: President
|
||
|
SUPPLIER OASIS FULFILLMENT SERVICES, INC.,
|
||
|
as Guarantor
|
||
|
By:
|
/s/ Amy Sullivan
|
|
|
Name: Amy Sullivan
|
||
|
Title: President
|
||
|
TOKENS.COM INC.,
|
||
|
as Guarantor
|
||
|
By:
|
/s/ Amy Sullivan
|
|
|
Name: Amy Sullivan
|
||
|
Title: President
|
||
|
TWOPONDS, INC.,
|
||
|
as Guarantor
|
||
|
By:
|
/s/ Amy Sullivan
|
|
|
Name: Amy Sullivan
|
||
|
Title: President
|
||
|
ZION PEAKS, INC.,
|
||
|
as Guarantor
|
||
|
By:
|
/s/ Brian LaRose
|
|
|
Name: Brian LaRose
|
||
|
Title: President
|
||
[Signature Page to Indenture]
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first written above.
|
COMPUTERSHARE TRUST COMPANY,
|
||
|
NATIONAL ASSOCIATION,
|
||
|
as Trustee
|
||
|
By:
|
/s/ Corey J. Dahlstrand
|
|
|
Name: Corey J. Dahlstrand
|
||
|
Title: Vice President
|
||
[Signature Page to Indenture]
[FORM OF FACE OF NOTE]
[INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREUNDER IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[INCLUDE FOLLOWING LEGEND IF A RESTRICTED SECURITY]
[THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS THAT
IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES FOR THE
BENEFIT OF BED BATH & BEYOND, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY, IF ANY OR ANY BENEFICIAL INTEREST
HEREIN OR THEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUANCE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y)
SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
(A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR
(C) TO A PERSON
REASONABLY BELIEVED TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR
A-1
(D) PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE
DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO
REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER
THE SECURITIES ACT) OF THE COMPANY DURING THE PRECEDING THREE MONTHS MAY PURCHASE, OTHERWISE ACQUIRE OR HOLD THIS SECURITY OR A BENEFICIAL INTEREST HEREIN.]
A-2
Bed Bath & Beyond, Inc.
5.00% Convertible Senior Note due 2033
[Initially]1 $[
]
No. [__]
CUSIP No. [__________]2
Bed Bath & Beyond, Inc., a corporation duly organized and validly existing under the laws of the State of Delaware (the “Company,” which term includes any successor corporation or other entity under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to
[CEDE & CO.]3 [__________]4, or registered assigns, the principal sum [as set
forth in the “Schedule of Exchanges of Notes” attached hereto]5 [of $[__________]]6,
which amount, taken together with the principal amounts of all other outstanding Notes, shall not, unless permitted by the Indenture, exceed $[ ] in aggregate at any time, in accordance with the rules and applicable procedures of
the Depositary, on July [8], 2033, and interest thereon as set forth below. Capitalized terms used in this Note but not defined in this Note shall have the respective meanings ascribed to such terms in the Indenture.
This Note shall bear interest at the Stated Interest Rate from the Issue Date or from the most recent date to which interest has been paid or
provided for to, but excluding, the next scheduled Interest Payment Date until the Maturity Date. Interest is payable semi-annually in arrears on each April 1 and October 1, commencing on April 1, 2027, and on the Maturity Date, to Holders of
record at the close of business on the preceding March 15 and September 15 (whether or not such day is a Business Day), respectively, or the June 22 (whether or not such day is a Business Day) immediately preceding the Interest Payment Date on
the Maturity Date. Additional Interest and Default Interest will be payable as set forth in the Indenture, and any reference to interest on, or in respect of, any Note therein shall be deemed to include Additional Interest and Deferred
Additional Interest (if, in such context, Additional Interest or Deferred Additional Interest is, was or would be payable pursuant to any of such Section 4.06(c), Section 4.06(d), Section 4.06(f) or Section 6.03), and Default
Interest, and any express mention of the payment of Additional Interest, Deferred Additional Interest or Default Interest in any provision therein shall not be construed as excluding Additional Interest, Deferred Additional Interest or Default
Interest in those provisions thereof where such express mention is not made. Accrued interest on the Notes shall be computed on the basis of a 360-day year composed of twelve 30-day months and, for partial months, on the basis of the number of
days actually elapsed in a 30-day month.
| 1 |
Include if a global note.
|
| 2 |
This Note will be deemed to be identified by CUSIP No. [__________] from and after such time when (i) the Company delivers,
pursuant to Section 2.05(c) of the within-mentioned Indenture, written notice to the Trustee of the occurrence of the Resale Restriction Termination Date and the removal of the restrictive legend affixed to this Note and
(ii) this Note is identified by such CUSIP number in accordance with the applicable procedures of the Depositary.
|
| 3 |
Include if a global note.
|
| 4 |
Include if a physical note.
|
| 5 |
Include if a global note.
|
| 6 |
Include if a physical note.
|
A-3
Any Defaulted Amounts shall accrue interest per annum at the Stated Interest Rate, subject to the enforceability thereof under applicable law,
from, and including, the relevant payment date to, but excluding, the date on which such Defaulted Amounts shall have been paid by the Company, at its election, in accordance with Section
2.03(c) of the Indenture.
The Company shall pay or cause the Paying Agent to pay the principal of and interest on this Note, if and so long as such Note is a Global Note,
in immediately available funds in U.S. dollars to the Depositary or its nominee, as the case may be, as the registered Holder of such Note. As provided in and subject to the provisions of the Indenture, the Company shall pay or cause the Paying
Agent to pay the principal of any Notes (other than Notes that are Global Notes) at the office or agency designated by the Company for that purpose. The Company has initially designated the Trustee as its Paying Agent and Note Registrar in
respect of the Notes and its agency in the contiguous United States of America, as a place where Notes may be presented for payment or for registration of transfer and exchange.
All amounts payable in cash pursuant to the Notes and the Indenture shall be paid in U.S. dollars.
The Notes, including this Note, are unconditionally guaranteed, jointly and severally, by each of the Guarantors pursuant to the terms and
conditions set forth in Article 13 of the Indenture.
Reference is made to the further provisions of this Note set forth on the reverse hereof, including, without limitation, provisions giving the
Holder of this Note the right to convert this Note into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, on the terms and subject to the limitations set forth in the Indenture. Such further
provisions shall for all purposes have the same effect as though fully set forth at this place.
This Note, and any claim, controversy or dispute arising under or related to this Note, shall be construed in accordance with
and governed by the laws of the State of New York (without regard to the conflicts of laws provisions thereof).
In the case of any conflict between this Note and the Indenture, the provisions of the Indenture shall control and govern.
This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed manually
by the Trustee or a duly authorized authenticating agent under the Indenture.
[Remainder of page intentionally left blank]
A-4
IN WITNESS WHEREOF, the
Company has caused this Note to be duly executed.
|
BED BATH & BEYOND, INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Dated:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Computershare Trust Company, National Association, as Trustee, certifies that this is one of the Notes described in the within-named Indenture.
|
By:
|
||
|
Authorized Signatory
|
A-5
[FORM OF REVERSE OF NOTE]
Bed Bath & Beyond, Inc.
5.00% Convertible Senior Note due 2033
This Note is one of a duly authorized issue of Notes of the Company, designated as its 5.00% Convertible Senior Notes due 2033 (the “Notes”), limited to the aggregate principal amount of $[112,553,000] all issued or to be issued under and pursuant to an Indenture, dated as of July [8], 2026 (the “Indenture”), among the Company, the Guarantors from time to time party thereto and Computershare Trust Company, National Association, as trustee (the “Trustee”), to which the Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company, the Guarantors and the Holders of the Notes. Additional Notes may be issued in an unlimited aggregate principal amount, subject to certain conditions specified in the Indenture. Capitalized terms used in
this Note but not defined in this Note shall have the respective meanings ascribed to such terms in the Indenture.
In case certain Events of Default shall have occurred and be continuing, the principal of, and interest on, all Notes may be declared, by either
the Trustee or Holders of at least 25% in aggregate principal amount of Notes then outstanding, and upon said declaration shall become, due and payable, in the manner, with the effect and subject to the conditions and certain exceptions set
forth in the Indenture. In case certain Events of Default relating to a bankruptcy (or similar proceeding) shall have occurred, the principal of, and interest on, all Notes shall automatically become immediately due and payable, in the manner
and with the effect set forth in the Indenture.
Subject to the terms and conditions of the Indenture, the Company will make all payments and deliveries in respect of the Fundamental Change
Repurchase Price on the Fundamental Change Repurchase Date, the Redemption Price on any Redemption Date and the principal amount on the Maturity Date, as the case may be, to the Holder who surrenders a Note to a Paying Agent (or for Global
Notes, in accordance with DTC’s applicable procedures) to collect such payments in respect of the Note. The Company will pay cash amounts in money of the United States that at the time of payment is legal tender for payment of public and
private debts.
The Indenture contains provisions permitting the Company and the Trustee in certain circumstances, without the consent of the Holders of the
Notes, and in certain other circumstances, with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding, evidenced as in the Indenture provided, to execute supplemental
indentures modifying the terms of the Indenture and the Notes as described therein. It is also provided in the Indenture that, subject to certain exceptions, the Holders of a majority in aggregate principal amount of the Notes at the time
outstanding may on behalf of the Holders of all of the Notes waive any past Default or Event of Default under the Indenture and its consequences.
Each Holder shall have the right to receive payment or
delivery, as the case may be, of (x) the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if
applicable) of, (y) accrued and unpaid interest, if any, on, and (z) the consideration due upon conversion of, this Note at the place, at the respective times, at the rate and in the lawful money or shares of Common Stock, as the case may
be, herein prescribed.
A-6
The Notes are issuable in registered form without coupons in minimum denominations of $1,000 principal amount and integral multiples thereof. At
the office or agency of the Company referred to on the face hereof, and in the manner and subject to the limitations provided in the Indenture, Notes may be exchanged for a like aggregate principal amount of Notes of other authorized
denominations, without payment of any service charge, but, if required by the Company or Trustee, with payment of a sum sufficient to cover any transfer or similar tax that may be imposed in connection therewith as a result of the name of the
Holder of the new Notes issued upon such exchange of Notes being different from the name of the Holder of the old Notes surrendered for such exchange.
The Notes shall be redeemable at the Company’s option on or after July [8], 2030 and on or before the 26th Scheduled Trading Date immediately
preceding the Maturity Date in accordance with the terms and subject to the conditions specified in the Indenture. No sinking fund is provided for the Notes.
Upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s option and subject to the limitations set forth in the
Indenture, to require the Company to repurchase for cash all of such Holder’s Notes or any portion thereof (in principal amounts of $1,000 or integral multiples thereof) on the Fundamental Change Repurchase Date at a price equal to the
Fundamental Change Repurchase Price.
Subject to the provisions of the Indenture, the Holder hereof has the right, at its option, during certain periods and upon the occurrence of
certain conditions specified in the Indenture, prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, to convert any Notes or portion thereof that is $1,000 or an integral multiple thereof,
into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable and subject to the limitations set forth in the Indenture, in each case, at the Conversion Rate specified in the Indenture, as adjusted from
time to time as provided in the Indenture.
A-7
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM = as tenants in common
UNIF GIFT MIN ACT = Uniform Gifts to Minors Act
CUST = Custodian
TEN ENT = as tenants by the entireties
JT TEN = joint tenants with right of survivorship and not as tenants in common
Additional abbreviations may also be used though not in the above list.
A-8
SCHEDULE OF EXCHANGES OF NOTES
Bed Bath & Beyond, Inc.
5.00% Convertible Senior Notes due 2033
The initial principal amount of this Global Note is [ ] DOLLARS ($[ ]). The following increases or decreases in this
Global Note have been made:
|
Date of exchange
|
Amount of
decrease in
principal
amount of this
Global Note
|
Amount of
increase in
principal
amount of this
Global Note
|
Principal
amount of this
Global Note
following such
decrease or
increase
|
Signature of
authorized
signatory of
Trustee or
Custodian
|
||||
| 7 |
Include if a global note.
|
Schedule A-1
ATTACHMENT 1
[FORM OF NOTICE OF CONVERSION]
| To: |
Computershare Trust Company, National Association, as Conversion Agent
|
1505 Energy Park Drive
St. Paul, MN 55108
Attention: Corporate Trust Services / Bed Bath & Beyond, Inc. Administrator
E-mail: #[email protected]
The undersigned registered owner of this Note hereby exercises the option to convert this Note, or the portion hereof (that is $1,000 principal
amount or an integral multiple thereof) below designated, into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, in accordance with the terms of the Indenture referred to in this Note, and directs
that any cash payable and any shares of Common Stock issuable and deliverable upon such conversion, together with any cash for any fractional share, and any Notes representing any unconverted principal amount hereof, be issued and delivered to
the registered Holder hereof unless a different name has been indicated below. If any shares of Common Stock or any portion of this Note not converted are to be issued in the name of a Person other than the undersigned, the undersigned will pay
all documentary, stamp or similar issue or transfer taxes, if any in accordance with Section 14.02(d) and Section 14.02(e)
of the Indenture. Any amount required to be paid to the undersigned on account of interest accompanies this Note. Further, the undersigned represents and warrants that compliance by the Company with this notice will not be deemed to result in a
violation of the Beneficial Ownership Limitation applicable to the undersigned as specified in Section 14.13 of the Indenture being exceeded. Capitalized terms used herein but not
defined herein shall have the respective meanings ascribed to such terms in the Indenture.
|
Dated:
|
|
Signature(s)
|
|
Signature Guarantee
|
|
|
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to be issued, or Notes are to be delivered, other than to and in the name of the
registered holder.
|
Attachment 1-1
Fill in for registration of shares if to be issued, and Notes if to be delivered, other than to and in the name of the registered holder:
|
(Name)
|
|
|
(Street Address)
|
|
|
(City, State and Zip Code)
|
|
|
Please print name and address
|
|
Principal amount to be converted (if less than all): $_____________,000
|
|
|
NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without
alteration or enlargement or any change whatever.
|
|
|
Social Security or Other Taxpayer Identification Number
|
Attachment 1-2
[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]
| To: |
Computershare Trust Company, National Association, as Trustee
|
1505 Energy Park Drive
St. Paul, MN 55108
Attention: Corporate Trust Services / Bed Bath & Beyond, Inc. Administrator
Email: [email protected]
The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Bed Bath & Beyond, Inc. (the “Company”) as to the occurrence of a Fundamental Change with respect to the Company and specifying the Fundamental Change Repurchase Date and requests and instructs the Company
to pay to the registered holder hereof in accordance with Section 15.02 of the Indenture referred to in this Note (1) the entire principal amount of this Note, or the portion thereof
(that is $1,000 principal amount or an integral multiple thereof) below designated, and (2) if such Fundamental Change Repurchase Date does not fall during the period after a Regular Record Date and on or prior to the corresponding Interest
Payment Date, accrued and unpaid interest, if any, thereon to, but excluding, such Fundamental Change Repurchase Date. Capitalized terms used herein but not defined herein shall have the respective meanings ascribed to such terms in the
Indenture.
In the case of Physical Notes, the certificate numbers of the Notes to be repurchased are as set forth below:
|
Dated:
|
|
Signature(s)
|
|
|
Social Security or Other Taxpayer Identification Number
|
|
|
Principal amount to be converted (if less than all): $_____________,000
|
|
|
NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without
alteration or enlargement or any change whatever.
|
Attachment 2-1
[FORM OF ASSIGNMENT AND TRANSFER]
For value received, ________________________ hereby sell(s), assign(s) and transfer(s) unto ________________________ (Please insert social
security or Taxpayer Identification Number of assignee) the within Note, and hereby irrevocably constitutes and appoints ________________________ attorney to transfer the said Note on the books of the Company, with full power of substitution in
the premises.
In connection with any transfer of the within Note occurring prior to the Resale Restriction Termination Date, as defined in the Indenture
governing such Note, the undersigned confirms that such Note is being transferred:
| ☐ |
To Bed Bath & Beyond, Inc. or a subsidiary thereof;
|
| ☐ |
Pursuant to a registration statement that has become or been declared effective under the Securities Act of 1933, as amended;
|
| ☐ |
Pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended; or
|
| ☐ |
Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended, or any other available exemption from the registration requirements of the
Securities Act of 1933, as amended.
|
|
Dated:
|
|
Signature(s)
|
|
|
Signature Guarantee
|
|
|
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if Notes are to be delivered, other than to and in the name of the registered holder.
|
|
|
NOTICE: The signature on the assignment must correspond with the name as written upon the face of the Note in every particular without alteration or
enlargement or any change whatever.
|
Attachment 3-1
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY GUARANTORS
[________] SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated
as of ________________, 20__, among BED BATH & BEYOND, INC., a Delaware corporation, as issuer (the “Company,”), Computershare Trust Company, National Association, as
trustee (the “Trustee,”) and __________________ (the “Guarantor”), a subsidiary of the Company.
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of July [8], 2026 providing for the issuance of 5.00% Convertible Senior Notes due 2033 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guarantor shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guarantor shall unconditionally guarantee all of the Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Guarantee”);
and
WHEREAS, pursuant to Section 10.01 of the Indenture, the Guarantor and the Trustee are authorized to enter into this Supplemental Indenture
without the consent of the Holders of the Notes.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged,
the Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Guarantee. The Guarantor hereby provides an unconditional Guarantee on the terms and subject to the conditions set forth in the Indenture, including but not limited to Article 13 thereof.
3. Governing Law; Jurisdiction. THIS SUPPLEMENTAL INDENTURE AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY, THE GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
B-1
The Guarantor irrevocably consents and agrees, for the benefit of the Holders from time to time of the Notes and the Trustee, that any legal
action, suit or proceeding against it with respect to obligations, liabilities or any other matter arising out of or in connection with this Supplemental Indenture may be brought in the courts of the State of New York or the courts of the
United States located in the Borough of Manhattan, New York City, New York and, until amounts due and to become due in respect of the Guarantee have been paid, hereby irrevocably consents and submits to the non-exclusive jurisdiction of each
such court in personam, generally and unconditionally with respect to any action, suit or proceeding for itself in respect of its properties, assets and revenues.
4. Counterparts; Electronic Signatures. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the
same instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may
be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. This Supplemental Indenture (and any document
delivered in connection with this Supplemental Indenture) shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means of (i) any electronic signature
permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including relevant provisions of the
Uniform Commercial Code (collectively, “Signature Law”); (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for
all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed,
scanned, or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. For avoidance of doubt, original manual
signatures shall be used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings. All notices, approvals, consents, requests and any
communications hereunder must be in writing (provided that any such communication sent to Trustee hereunder must be in the form of a document that is signed manually or by way of a digital signature provided by DocuSign or other electronic
signature provider that the Guarantor plans to use or such other digital signature provider as specified in writing to Trustee by the authorized representative), in English. Guarantor agrees to assume all risks arising out of the use of
using digital signatures and electronic methods to submit communications to Trustee, including the risk of Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
5. Effect of Headings. The Section headings herein are for convenience or reference only and are not intended to be considered a part hereof and shall not affect the construction hereof.
6. The Trustee. The Trustee shall not be responsible or liable in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals and
statements contained herein, all of which recitals are made solely by the Guarantor.
[Signatures follow on next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
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BED BATH & BEYOND, INC.
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By:
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Name:
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Title:
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[GUARANTOR]
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By:
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Name:
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Title:
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COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION,
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as Trustee
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By:
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Name:
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Title:
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B-3
Exhibit 10.1
Execution Version
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
This Registration Rights and Lock-Up Agreement (this “Agreement”) is made and entered into effective as of July 8, 2026 (the “Effective Date”), by and among Bed Bath & Beyond, Inc., a Delaware corporation (the “Corporation”), each Person (as defined herein) listed under the header “Initial Holders” on the signature pages hereto (each, an “Initial
Holder” and, collectively, the “Initial Holders”) and each Person who becomes a party to this Agreement by entering into a joinder agreement in the
form attached hereto as Exhibit A.
RECITALS
WHEREAS, the Corporation has entered into that certain Agreement and Plan of Merger, dated as of April 2, 2026 (the “Merger Agreement”), with TCS Merger Sub, LLC, a Delaware limited liability company and direct wholly-owned subsidiary of the Corporation (“Merger Sub”), and The Container Store Holdings, LLC, a Delaware limited liability company (“TCS”), pursuant
to which the parties have agreed to effect a merger of Merger Sub with and into TCS, with TCS surviving such merger as a direct wholly-owned subsidiary of the Corporation (the “Merger”);
WHEREAS, upon the terms and subject to the conditions of the Merger Agreement, the Initial Holders are entitled to receive, in the aggregate: (i)
13,427,624 shares (the “Closing Shares”) of common stock, $0.0001 par value per share, of the Corporation (the “Common Stock”) and (ii) $112,553,000 in aggregate principal amount of the Corporation’s 5.00% Convertible Senior Notes due 2033 (the “Convertible Notes”), which shall be convertible into shares of Common Stock (the “Note Shares”) upon the terms and subject to
the conditions set forth in that certain Indenture, dated as of the Effective Date (the “Indenture”), by and among the Corporation, each subsidiary of the
Corporation from time to time party thereto as a guarantor, and Computershare Trust Company, National Association, as trustee;
WHEREAS, in connection with the transactions contemplated by the Merger Agreement, Spruce Advisory Group, LLC is entitled to receive an aggregate of
142,857 shares of Common Stock (the “Spruce Shares”);
WHEREAS, to induce the Initial Holders to approve and consent to the Merger Agreement and the transactions contemplated thereby (including the Merger
and the issuance of the Closing Shares and Convertible Notes to the Initial Holders pursuant to the terms of the Merger Agreement), the Corporation has agreed to provide certain registration rights under the Securities Act (as defined below) and the
rules and regulations promulgated by the SEC (as defined below) thereunder, and applicable state securities laws; and
WHEREAS, to induce the Corporation to enter into the Merger Agreement and consummate the transactions contemplated thereby, each of the Initial
Holders has agreed to subject two-thirds (2/3) of the Closing Shares that such Initial Holder receives (the “Lock-Up Shares”) to certain transfer restrictions
until the expiration of the Lock-Up Period (as defined below).
NOW, THEREFORE, in consideration of and reliance upon the mutual covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions. For purposes of this Agreement, the following terms shall have the meanings specified in this Section 1:
“Adverse Disclosure” means public disclosure of material
non-public information which, in the Corporation’s good faith judgment, after consultation with outside legal counsel to the Corporation, (i) would be required to be made in any report or Registration Statement filed with the SEC by the Corporation
so that such report or Registration Statement would not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading; (ii) would not be required to be made at such
time but for the filing, effectiveness or continued use of such Registration Statement or any Registration Statement which incorporates such report by reference, as the case may be; and (iii) the Corporation has a bona fide business purpose for not
disclosing publicly at such time.
“Affiliate” of any Person means any other Person
controlled by, controlling or under common control with such Person. As used in this definition, “control” (including, with its correlative meanings, “controlling,” “controlled by” and “under common control with”) shall mean possession, directly or
indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities, by contract or otherwise).
“Agreement” has the meaning set forth in the recitals.
“Business Day” means any day of the year on which national
banking institutions in New York are open to the public for conducting business and are not required or authorized to be closed.
“Capital Stock” means (i) with respect to any Person that
is a corporation, any and all shares, interests or equivalents in capital stock of such corporation (whether voting or nonvoting and whether common or preferred), (ii) with respect to any Person that is not a corporation, individual or governmental
entity, any and all partnership, membership, limited liability company or other equity interests of such Person that confer on the holder thereof the right to receive a share of the profits and losses of, or the distribution of assets of the issuing
Person, and (iii) any and all warrants, rights (including conversion and exchange rights) and options to purchase any security described in clauses (i) or (ii) above.
“Closing Shares” has the meaning set forth in the
recitals.
“Common Stock” has the meaning set forth in the recitals.
“Convertible Notes” has the meaning set forth in the
recitals.
“Corporation” has the meaning set forth in the recitals.
“Effective Date” has the meaning set forth in the
recitals.
2
“Effectiveness Date” means the earlier of (a) the 30th day
following the filing date of the applicable Registration Statement (or, in the event the SEC staff notifies the Corporation that it intends to review such Registration Statement, the 60th day following the filing date of such Registration Statement)
and (b) five (5) Business Days after the Corporation is notified that such Registration Statement will not be reviewed by the SEC staff or is not subject to further review by the SEC staff.
“Exchange Act” means the Securities Exchange Act of 1934,
as amended from time to time, or any successor federal law then in force, together with all rules and regulations promulgated thereunder.
“Filing Date” has the meaning assigned to such term in Section 2(a).
“FINRA” means the Financial Industry Regulatory Authority.
“Holder” means each of the Initial Holders and any Person
who subsequent to the Effective Date becomes a party to this Agreement, including any Permitted Transferee pursuant to Section 7(b) and any transferee pursuant to Section 9, in each case upon the submission of a Joinder to the Corporation as provided therein.
“Indemnified Party” has the meaning assigned to such term
in Section 6(c).
“Indemnifying Party” has the meaning assigned to such term
in Section 6(c).
“Indenture” has the meaning set forth in the recitals.
“Initial Holder(s)” has the meaning set forth in the recitals.
“Joinder” has the meaning assigned to such term in Section 7(b).
“Lock-Up Period” means the period commencing on the Effective Date and (a) with respect to fifty percent (50%) of the Lock-Up Shares, ending on the earlier of (i) the 180th day following the Effective Date and (ii) the date on which the daily
volume-weighted average price (the “VWAP”) of the Common Stock on the NYSE equals or exceeds $9.80 per share for 20 consecutive trading days; and (b) with
respect to the other fifty percent (50%) of the Lock-Up Shares, ending on the earlier of (i) the 270th day following the Effective Date and (ii) the date on which the VWAP of the Common Stock on the NYSE equals or exceeds $14.00 per share for 20
consecutive trading days.
“Lock-Up Restrictions” has the meaning assigned to such
term in Section 7(a).
“Lock-Up Shares” has the meaning set forth in the
recitals.
“Marketed” means an Underwritten Shelf Take-Down that
involves the use or involvement of a customary “road show” (including an “electronic road show”) or other substantial marketing effort by underwriters over a period of at least 48 hours.
3
“Marketed Underwritten Shelf Take-Down” has the meaning
assigned to such term in Section 2(d)(iv).
“Merger” has the meaning set forth in the recitals.
“Merger Agreement” has the meaning set forth in the
recitals.
“Merger Sub” has the meaning set forth in the recitals.
“Minimum Take-Down Threshold” has the meaning assigned to
such term in Section 2(g)(i).
“MNPI” means material non-public information within the
meaning of Regulation FD promulgated under the Exchange Act.
“Non-Marketed” means an Underwritten Shelf Take-Down that
is not a Marketed Underwritten Shelf Take-Down, including a block trade or similar transaction that is not Marketed.
“Note Shares” has the meaning set forth in the recitals.
“NYSE” means the New York Stock Exchange.
“Opt-Out Request” has the meaning assigned to such term in
Section 13(c).
“Permitted Transferee” has the meaning assigned to such
term in Section 7(b).
“Person” means an individual, a partnership, a
corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.
“Policies” has the meaning assigned to such term in Section 13(b).
“Prospectus” means the prospectus included in any
Registration Statement, all amendments and supplements to such prospectus, including post-effective amendments, and all other material incorporated by reference in such prospectus, as amended and supplemented.
“Public Offering” means any sale or distribution to the
public of Capital Stock of the Corporation pursuant to an offering registered under the Securities Act, whether by the Corporation, by Holders and/or by any other holders of the Corporation’s Capital Stock.
“register”, “registered” and “registration” means a registration effected pursuant to a registration statement filed with the SEC in compliance with the Securities Act.
4
“Registration Expenses” means any and all expenses
incident to the performance by the Corporation of its obligations under this Agreement, including (i) all SEC or stock exchange registration and filing fees (including, if applicable, the fees and expenses of any “qualified independent underwriter,”
as such term is defined in Rule 5121 of FINRA (or any successor provision), and of its counsel), (ii) all fees and expenses of complying with securities or blue sky laws (including fees and disbursements of counsel for the underwriters in connection
with blue sky qualifications of the Registrable Securities), (iii) all printing, messenger, telephone and delivery expenses, (iv) all fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange
and all rating agency fees, (v) the fees and disbursements of counsel for the Corporation and of its independent public accountants, including the expenses of any special audits and/or comfort letters required by or incident to such performance and
compliance, (vi) any fees and disbursements of underwriters customarily paid by the issuers or sellers of securities, including liability insurance if the Corporation so desires or if the underwriters so require, and the reasonable fees and expenses
of any special experts retained in connection with the requested registration, but excluding underwriting discounts and commissions and transfer taxes, if any, (vii) the reasonable fees and out-of-pocket expenses of one counsel selected by the
majority in interest of the Holders or the majority in interest of the Shelf Take-Down Initiating Holders, as applicable, (viii) the costs and expenses of the Corporation relating to analyst and investor presentations or any “road show” undertaken in
connection with the registration and/or marketing of the Registrable Securities (including expenses incurred by the Holders) and (ix) any other fees and disbursements customarily paid by the issuers of securities.
“Registrable Securities” means (a) the shares of Common
Stock issued or issuable by the Corporation in connection with the transactions contemplated by the Merger Agreement, including the Closing Shares, the Note Shares and the Spruce Shares, and (b) any other equity security of the Corporation issued or
issuable with respect to any securities referred to in clause (a) above by way of a dividend, distribution, split or combination of securities, or in any recapitalization, merger,
arrangement, amalgamation, consolidation, spin-off, reorganization or similar transaction. As to any particular Registrable Securities owned by any Person, such securities shall cease to be Registrable Securities: (i) on the date such securities
have been sold or distributed pursuant to a Public Offering, (ii) on the date such securities have been sold in compliance with Rule 144, (iii) on the date such securities have been repurchased by the Corporation or a Subsidiary of the Corporation,
or (iv) on the date the Holder “beneficially owns” (within the meaning set forth in Rule 13d-3 promulgated under the Exchange Act) less than three percent (3%) of the Capital Stock of the Corporation that is outstanding at such time and such Holder
is able to dispose of all of such securities pursuant to Rule 144 in a single transaction without volume limitation or other restrictions on transfer thereunder and the Corporation has delivered an opinion of counsel reasonably satisfactory to the
transfer agent of the Corporation’s equity securities certifying that such securities may be so sold free of any restrictive legends.
“Registration Default” means that (a) the Corporation does
not file the initial Shelf Registration Statement covering all the Registrable Securities pursuant to Section 2(a) on or before the Filing Date, (b) such Registration Statement is not
declared effective by the SEC on or before the Effectiveness Date, (c) the Corporation extends any Shelf Suspension beyond the limitations set forth in Section 2(e), or a Registration
Statement filed pursuant to Section 2 is filed and declared effective but, during the applicable Effectiveness Period, such Registration Statement is not effective for any reason or the
Prospectus contained therein is not available for use for any reason, in each case other than due to a permitted Shelf Suspension, without such disability being cured within ten Business Days by an effective post-effective amendment to such
Registration Statement, a supplement to the Prospectus, or a report filed with the SEC, or (d) if the Corporation, through its omission or failure to comply with its obligations hereunder, fails to name a Holder as a selling shareholder in one or
more Registration Statements filed pursuant to Section 2 and such Holder had complied timely with its obligations hereunder in a manner to entitle such Holder to be so named.
5
“Registration Statement” means any registration statement
that covers Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus with respect to such registration statement, all amendments (including post-effective amendments) and supplements to such registration
statement, and all exhibits to and all material incorporated by reference in such registration statement.
“Representatives” has the meaning assigned to such term in
Section 13(b).
“Restricted Shelf Take-Down” has the meaning assigned to
such term in Section 2(g)(v).
“Rule 144” and “Rule 415” mean, in each case, such rule promulgated under the Securities Act (or any successor provision) by the SEC, as the same shall be amended from time to time, or any successor rule then
in force.
“Securities Act” means the Securities Act of 1933, as
amended from time to time, or any successor federal law then in force, together with all rules and regulations promulgated thereunder.
“SEC” means the U.S. Securities and Exchange Commission.
“Shelf Holder” means any Holder that owns Registrable
Securities that have been registered on a Shelf Registration Statement filed pursuant to Section 2.
“Shelf Registration Statement” means a Registration
Statement of the Corporation filed with the SEC for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act (or any similar rule that may be adopted by the SEC) covering the Registrable Securities, as applicable.
“Shelf Suspension” has the meaning assigned to such term
in Section 2(e).
“Shelf Take-Down” means any offering or sale of
Registrable Securities initiated by one or more Holders pursuant to a Shelf Registration Statement.
“Shelf Take-Down Initiating Holder” has the meaning
assigned to such term in Section 2(g)(i).
“Spruce Shares” has the meaning set forth in the recitals.
“Subsequent Registration Statement” has the meaning
assigned to such term in Section 2(b).
“Subsidiary” means, with respect to the Corporation, any
corporation, limited liability company, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of Capital Stock of such Person entitled (without regard to the occurrence of any
contingency) to vote in the election of directors is at the time owned or controlled, directly or indirectly, by the Corporation, or (ii) if a limited liability company, partnership, association or other business entity, either (x) a majority of the
Capital Stock of such Person entitled (without regard to the occurrence of any contingency) to vote in the election of managers, general partners or other oversight board vested with the authority to direct management of such Person is at the time
owned or controlled, directly or indirectly, by the Corporation or (y) the Corporation or one of its Subsidiaries is the sole manager or general partner of such Person.
6
“TCS” has the meaning set forth in the recitals.
“Underwritten Offering” has the meaning assigned to such
term in Section 3(b).
“Underwritten Shelf Take-Down” has the meaning assigned to
such term in Section 2(g)(iii).
“Underwritten Shelf Take-Down Notice” has the meaning
assigned to such term in Section 2(g)(ii).
“Withdrawal Notice” has the meaning assigned to such term
in Section 2(g)(vii).
Section 2. Shelf Registration.
(a) Filing and Effectiveness. Subject to the Corporation’s rights under Section 2(e), the Corporation hereby agrees that it shall (i) file as promptly as
reasonably practicable, but no later than the 60th day following the Effective Date (such date, the “Filing Date”), a Shelf Registration Statement (which
Shelf Registration Statement shall be filed on Form S-3, and shall be filed in such a manner as to become automatically effective upon the filing thereof, in each case if the Corporation is eligible therefor at the time of filing such Shelf
Registration Statement with the SEC), as will permit or facilitate the sale and distribution of all Registrable Securities owned by the Holders in such manners of distribution as the Holders may reasonably request, and (ii) use its reasonable
best efforts to cause such Shelf Registration Statement to become effective as promptly as reasonably practicable after the filing thereof, but no later than the Effectiveness Date. No later than ten (10) days prior to the filing of such Shelf
Registration Statement, the Corporation shall give written notice to all Holders of the anticipated date of the filing of such Shelf Registration Statement. In the event the Corporation files the Shelf Registration Statement pursuant to this Section 2(a) on Form S-1, as soon as the Corporation qualifies for, and is able to include all Registrable Securities on, Form S-3, the Corporation shall use its reasonable best efforts to,
as soon as practicable, (x) convert such Shelf Registration Statement to a Registration Statement on Form S-3 or (y) file a Subsequent Registration Statement on Form S-3. For the avoidance of doubt, the Corporation shall use its reasonable best
efforts to maintain the effectiveness of the then-effective Shelf Registration Statement while preparing and seeking effectiveness of any amendment necessary to convert such Shelf Registration Statement to a Registration Statement on Form S-3 or
any Subsequent Registration Statement, as applicable.
7
(b) Continued Effectiveness. The Corporation shall use its reasonable best efforts to keep each Registration Statement filed pursuant to this Section 2
continuously effective under the Securities Act in order to permit the Prospectus forming a part thereof to be usable by the applicable Shelf Holders until the date as of which all Registrable Securities registered by such Registration Statement
have been sold or cease to be Registrable Securities (the “Effectiveness Period”). If any Registration Statement filed pursuant to this Section 2 ceases to be effective under the Securities Act for any reason during the Effectiveness Period, the Corporation shall, subject to Section
2(e), use its reasonable best efforts to as promptly as reasonably practicable cause such Registration Statement to again become effective under the Securities Act (including using its reasonable best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness of such Registration Statement), and shall use its reasonable best efforts to as promptly as reasonably practicable amend such Registration Statement in a manner reasonably expected to result
in the withdrawal of any order suspending the effectiveness of such Registration Statement or file an additional Shelf Registration Statement (which Shelf Registration Statement shall be filed on Form S-3, and shall be filed in such a manner as
to become automatically effective upon the filing thereof, in each case if the Corporation is eligible therefor at the time of filing such Shelf Registration Statement with the SEC) (each, a “Subsequent Registration Statement”) registering the resale of all Registrable Securities. If a Subsequent Registration Statement is filed, the Corporation shall use its reasonable best efforts to
(i) cause such Subsequent Registration Statement to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof and (ii) keep such Subsequent Registration Statement continuously effective, available
for use to permit the Shelf Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act during the Effectiveness Period. In the event the Corporation files a Subsequent
Registration Statement on Form S-1, as soon as the Corporation qualifies for, and is able to include all Registrable Securities on, Form S-3, the Corporation shall use its reasonable best efforts to, as soon as practicable, (x) convert such
Subsequent Registration Statement to a Registration Statement on Form S-3 or (y) file another Subsequent Registration Statement on Form S-3. For the avoidance of doubt, the Corporation shall use its reasonable best efforts to maintain the
effectiveness of the applicable Subsequent Registration Statement then effective while preparing and seeking effectiveness of any amendment necessary to convert such Subsequent Registration Statement to a Registration Statement on Form S-3 or any
additional Subsequent Registration Statement, as applicable.
(c) No Inclusion of Other Securities. In no event shall the Corporation include any securities other than Registrable Securities on any Registration Statement filed pursuant to this Section 2 without the prior written consent of the Holders of a majority of the Registrable Securities whose offer and sale is to be registered in such Registration Statement.
(d) Additional Registration Statements; Transfers of Registrable Securities.
(i) Offering Limitations. If the SEC seeks to characterize any offering pursuant to a Registration Statement filed pursuant to this Section 2
as constituting an offering of securities that does not permit such Registration Statement to become effective and be used for resales by the Shelf Holders on a continuous basis under Rule 415, or if after the filing of any Registration Statement
filed pursuant to this Section 2, the Corporation is otherwise required by the SEC to reduce the number of Registrable Securities included in such Registration Statement, then the
Corporation shall reduce the number of Registrable Securities to be included in such Registration Statement (after consultation with the applicable Shelf Holders as to the specific Registrable Securities to be removed therefrom) until such time
as the SEC shall so permit such Registration Statement to become effective and be used as aforesaid. In the event of any reduction in Registrable Securities pursuant to this Section 2(d)(i),
the Corporation shall use its reasonable best efforts to file one or more Subsequent Registration Statements with the SEC as promptly as practicable until such time as all Registrable Securities have been included in Registration Statements filed
pursuant to this Section 2 that have been declared effective and the Prospectuses contained therein are available for use by the applicable Shelf Holders. No Registration Default shall
be deemed to have occurred, and no liquidated damages pursuant to Section 2(f) shall accrue, in respect of the removal of any Registrable Securities from such Registration Statement
pursuant to this Section 2(d)(i).
8
(ii) Additional Registrable Securities. Subject to Section 2(e), in the event that any Holder holds Registrable Securities that are
not registered for resale pursuant to a Registration Statement filed pursuant to this Section 2 (including as a result of such Holder being the transferee of such Registrable Securities
but not being named as a selling securityholder in any such Registration Statement), the Corporation shall, upon written request of such Holder, promptly use its reasonable best efforts to cause (A) the resale of such Registrable Securities to be
covered by either, at the Corporation’s option, any then available Registration Statement filed pursuant to this Section 2 or by filing a Subsequent Registration Statement, (B) such
Registration Statement to become effective as soon as practicable after such filing, and (C) each Prospectus in any such Registration Statement to be supplemented by any required prospectus supplement and, as so supplemented, to be filed pursuant
to Rule 424 under the Securities Act; provided, however, that the Corporation shall only be required to cause such additional Registrable Securities to be so covered once per calendar quarter and shall include all Registrable Securities for which
it has received a written request prior to taking such actions.
(e) Suspension of Filing or Registration. If the Corporation shall furnish to the Holders (if a Shelf Registration Statement has not yet become effective) or the Shelf Holders (after a Shelf Registration Statement has become
effective), a certificate signed by the chief executive officer, chief financial officer or other executive officer of the Corporation, stating that the filing, effectiveness or continued use of the Shelf Registration Statement would require the
Corporation to make an Adverse Disclosure, then the Corporation shall have a period of not more than 60 days within which to delay the filing or effectiveness (but not the preparation) of such Shelf Registration Statement or, in the case of a
Shelf Registration Statement that has been declared effective, to suspend the use by the applicable Shelf Holders of such Shelf Registration Statement (in each case, a “Shelf Suspension”); provided, however, that the Corporation shall not be permitted to exercise in any 12-month period (i) more than two (2) Shelf Suspensions pursuant to this Section
2(e) or (ii) aggregate Shelf Suspensions pursuant to this Section 2(e) of more than 90 days. To the extent that any information provided pursuant to this Section 2(e) in connection with any Shelf Suspension continues to constitute MNPI following the termination of such Shelf Suspension, the Corporation shall disclose all such MNPI promptly
following such termination. Each Holder shall keep confidential the fact that a Shelf Suspension is in effect, the certificate referred to above and its contents for the permitted duration of the Shelf Suspension or until otherwise notified by
the Corporation, except (A) for disclosure to such Holder’s employees, agents and professional advisers who need to know such information and are obligated to keep it confidential, (B) for disclosures to the extent required in order to comply
with reporting obligations to its limited partners who have agreed to keep such information confidential and (C) as required by applicable law, rule or regulation. In the case of a Shelf Suspension that occurs after the effectiveness of the Shelf
Registration Statement, the Shelf Holders agree to suspend use of the applicable Prospectus for the permitted duration of such Shelf Suspension in connection with any sale or purchase of, or offer to sell or purchase, Registrable Securities, upon
receipt of the certificate referred to above. The Corporation shall immediately notify the Holders or Shelf Holders, as applicable, upon the termination of any Shelf Suspension, and (i) in the case of a Shelf Registration Statement that has not
been filed, or has been filed but not declared effective, shall promptly thereafter file the Shelf Registration Statement, as applicable, and use its reasonable best efforts to have such Shelf Registration Statement declared effective under the
Securities Act and (ii) in the case of an effective Shelf Registration Statement, shall promptly amend or supplement the Prospectus, if necessary, so it does not contain any material misstatement or omission prior to the expiration of the Shelf
Suspension and furnish to the Shelf Holders such numbers of copies of the Prospectus as so amended or supplemented as the Shelf Holders may reasonably request. The Corporation agrees, if necessary, to supplement or make amendments to the Shelf
Registration Statement if required by the registration form used by the Corporation for the shelf registration or by the instructions applicable to such registration form or by the Securities Act or the rules or regulations promulgated thereunder
or as may reasonably be requested by Shelf Holders holding a majority of the Registrable Securities then covered by the Shelf Registration Statement.
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(f) Registration Default. If a Registration Default occurs, then for so long as any Convertible Notes or Registrable Securities are outstanding, and as long as such Registration Default is continuing as liquidated damages
to any Holder by reason of any such delay in or reduction of its ability to sell any Registrable Securities and not as a penalty (which remedy shall be the Holder’s exclusive monetary remedy with respect to any Registration Default, but shall not
affect the right of any Holder to seek injunctive relief), the Corporation shall pay to each Holder holding Registrable Securities included, or to be included, as applicable, in such Registration Statement and for each 30-day period (prorated for
any partial period) after the date of such Registration Default in an amount in cash equal to one percent (1.00%) of the aggregate value of the product of (A) the number of Registrable Securities to which such Registration Default applies and (B)
the 10-trading day VWAP of the Common Stock ending on (and including) the date such Registration Default occurs (or the earliest Registration Default occurs if multiple Registration Defaults are then continuing), up to an aggregate maximum of
five percent (5.0%). Such payments shall accrue until the earlier of (i) such time as the Registration Default has been cured and (ii) no Holder holds any Registrable Securities. Each Holder shall be entitled to its pro rata portion of any such
payments based upon the number of Registrable Securities held by such Holder included, or to be included, as applicable, relative to the total number of Registrable Securities included, or to be included, as applicable, in the Registration
Statement giving rise to such payment. The amounts payable as liquidated damages pursuant to this Section 2(f) shall be paid in cash no later than five Business Days after each such
30-day period following the commencement of the applicable Registration Default until the termination of such Registration Default. Interest shall accrue at the rate of 1.0% per month on any such liquidated damages payments that shall not be paid
by such fifth Business Day until such amount is paid in full.
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(g) Shelf Take-Downs.
(i) Generally. Subject to the terms and provisions of this Agreement, one or more initiating Holders (the “Shelf
Take-Down Initiating Holders”) may initiate a Shelf Take-Down pursuant to this Section 2(g) and, at the option of such Shelf Take-Down Initiating Holders, such Shelf Take-Down
(a) may be in the form of an Underwritten Shelf Take-Down or a Shelf Take-Down that is not an Underwritten Shelf Take-Down and (b) in the case of an Underwritten Shelf Take-Down, may be Non-Marketed or Marketed, in each case, as shall be
specified in the written demand delivered by the Shelf Take-Down Initiating Holders to the Corporation pursuant to the provisions of this Section 2(g). Any Underwritten Shelf Take-Down
subject to this Section 2(g) must involve the offer and sale by such Shelf Take-Down Initiating Holders of Registrable Securities having a reasonably anticipated net offering price
(after deduction of underwriter commissions and offering expenses) of at least $25.0 million (the “Minimum Take-Down Threshold”).
(ii) Notices. The Shelf Take-Down Initiating Holders may elect in a written demand delivered to the Corporation (an “Underwritten Shelf Take-Down Notice”) to conduct a Shelf Take-Down in the manner described in each of Section 2(g)(iii), 2(g)(iv)
and 2(g)(v). Within five (5) Business Days (or if the Shelf Registration Statement is on Form S-3 or relates to a Non-Marketed Underwritten Shelf Take-Down, within two (2) Business
Days) after the receipt of the Underwritten Shelf Take-Down Notice, the Corporation shall give notice to all other Shelf Holders and shall, as soon as practicable, but in any event within ten (10) Business Days after the delivery of such
Underwritten Shelf Take-Down Notice (except if the Corporation is not then eligible to register for offer and resale the Registrable Securities on Form S-3, in which case, within 45 days thereof), the Corporation shall, if so requested, file and
effect an amendment or supplement of the Shelf Registration Statement for such purpose, which amendment or supplement of the Shelf Registration Statement shall cover all of the Registrable Securities that the other Shelf Holders shall in writing
request to be included in such Shelf Take-Down.
(iii) Underwritten Shelf Take-Downs.
(a) Any Shelf Take-Down
that a Shelf Take-Down Initiating Holder has initiated (including any Restricted Shelf Take-Down) may be in the form of an underwritten offering (an “Underwritten
Shelf Take-Down”). The Shelf Take-Down Initiating Holders that own a majority of the Registrable Securities to be offered for sale in such Underwritten Shelf Take-Down shall have the right to select the underwriter or underwriters to
administer such Underwritten Shelf Take-Down; provided, that such underwriter or underwriters shall be reasonably acceptable to the Corporation.
(b) The Corporation
shall, together with all Shelf Holders of Registrable Securities proposing to distribute their securities through such Underwritten Shelf Take-Down, enter into an underwriting agreement in customary form with the underwriter or underwriters
selected in accordance with Section 2(g)(iii)(a). The right of any Shelf Holder to participate in such Underwritten Shelf Take-Down shall be conditioned on such Holder’s entry into such
underwriting agreement.
(iv) Marketed Underwritten Shelf Take-Downs. The Shelf Take-Down Initiating Holders submitting an Underwritten Shelf Take-Down Notice shall indicate in such notice that it delivers to the
Corporation pursuant to Section 2(g)(ii) whether it intends for such Underwritten Shelf Take-Down to be Marketed (a “Marketed Underwritten Shelf Take-Down”).
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(v) Non-Marketed Underwritten Shelf Take-Downs. Any Shelf Take-Down Initiating Holder may initiate a Non-Marketed Underwritten Shelf Take-Down (a “Restricted Shelf Take-Down”) by providing written notice thereof to the Corporation.
(vi) Reduction of Underwritten Shelf Take-Down Offering. If the managing underwriters of an Underwritten Shelf Take-Down Offering advise the Corporation and the participating Shelf Holders that
in their reasonable opinion the inclusion of all of the Holders’ Registrable Securities requested for inclusion in the subject Underwritten Shelf Take-Down Offering (and any related registration, if applicable) (and any other securities proposed
to be included in such offering) exceeds the number that can be included without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the
Corporation shall include in such Underwritten Shelf Take-Down Offering (and any related registration, if applicable) only that number of securities proposed to be included in such Underwritten Shelf Take-Down Offering (and any related
registration, if applicable) that, in the reasonable opinion of the managing underwriters, will not have such adverse effect, with such number to be allocated as follows: (1) first, pro rata among the Shelf Take-Down Initiating Holders that have requested to include Registrable Securities in such Underwritten Shelf Take-Down Offering based on the relative number of Registrable Securities then held by each
such Holder, (2) second, if there remains availability for additional securities, pro rata among the other Shelf Holders that have requested to include Registrable
Securities in such Underwritten Shelf Take-Down Offering based on the relative number of Registrable Securities then held by each such Holder, as applicable, (3) third, if there remains availability for additional securities, the shares of Common
Stock to be included in such Underwritten Shelf Take-Down Offering by the Corporation and (4) fourth, if there remains availability for additional securities, the shares of Common Stock to be included by any other holders entitled to participate
in such Underwritten Shelf Take-Down Offering, if applicable, based on the relative number of shares of Common Stock then held by each such holder.
(vii) Withdrawal. Prior to the filing of the applicable Prospectus used for marketing an Underwritten Shelf Take-Down, the Shelf Take-Down Initiating Holders that own a majority of the Registrable
Securities to be offered for sale in such Underwritten Shelf Take-Down shall have the right to withdraw from such Underwritten Shelf Take-Down for any or no reason upon written notification (a “Withdrawal Notice”) to the Corporation and the managing underwriters; provided that the remaining Shelf Take-Down Initiating Holders may elect to have the Corporation continue an Underwritten Shelf
Take-Down if the Minimum Take-Down Threshold would still be satisfied by the Registrable Securities still proposed to be sold in such Underwritten Shelf Take-Down. If withdrawn, a demand for an Underwritten Shelf Take-Down shall constitute a
demand for an Underwritten Shelf Take-Down by the withdrawing Shelf Take-Down Initiating Holders for purposes of Section 2(h), unless such Shelf Take-Down Initiating Holders reimburse
the Corporation for all Registration Expenses with respect to such Underwritten Shelf Take-Down. Following the receipt of any Withdrawal Notice, the Corporation shall promptly forward such Withdrawal Notice to any other Holders that had elected
to participate in such Shelf Take-Down. Notwithstanding anything to the contrary in this Agreement, the Corporation shall be responsible for the Registration Expenses incurred (i) in connection with a Shelf Take-Down prior to its withdrawal under
this Section 2(g)(vii), other than if a Shelf Take-Down Initiating Holder elects to pay such Registration Expenses as contemplated above and (ii) following a Withdrawal Notice if the
Shelf Take-Down Initiating Holders elect to have the Corporation continue an Underwritten Shelf Take-Down as set forth above.
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(h) Limitation on Underwritten Shelf Take-Downs. Notwithstanding the rights and obligations set forth in this Section 2, in no event shall the Corporation be
obligated to take any action to effect, in any twelve (12) month period, more than two (2) Underwritten Shelf Take-Downs (whether a Marketed Underwritten Shelf Take-Down or a Non-Marketed Underwritten Shelf Take-Down) in the aggregate.
Section 3. Piggyback Registration.
(a) If at any time or from time to time the
Corporation shall determine to register the offer and sale of any of its equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, either for its own account or for the account
of security holders (other than (1) in a registration relating solely to employee benefit plans, (2) a Registration Statement on Form S-4 or S-8 (or such other similar successor forms then in effect under the Securities Act), (3) a registration
pursuant to which the Corporation is offering to exchange its own securities for other securities, (4) a Registration Statement relating solely to dividend reinvestment or similar plans, (5) a Shelf Registration Statement pursuant to which only
the initial purchasers and subsequent transferees of debt securities of the Corporation or any Subsidiary that are convertible for Common Stock and that are initially issued pursuant to Rule 144A and/or Regulation S (or any successor provision)
of the Securities Act may resell such debt securities and sell the Common Stock into which such debt securities may be converted or (6) a registration pursuant to Section 2 hereof), the
Corporation will:
(i) promptly (but in no
event less than ten (10) days before the anticipated filing date of the relevant Registration Statement or prospectus supplement for the applicable offering) give to each of the Holders written notice thereof; and
(ii) include in such
registration or offering (and any related qualification under state securities laws or other compliance), and in any underwriting involved therein, all the Registrable Securities specified in a written request or requests made within five (5)
days after receipt of such written notice from the Corporation by any Holder except as set forth in Section 3(b) below.
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(b) Reduction of Piggyback Registration. If the registration of which the Corporation gives notice is for a registered public offering involving an underwriting (an “Underwritten Offering”), the Corporation shall so advise the Holders as a part of the written notice given pursuant to Section 3(a)(i). In such
event, the right of any Holder to registration pursuant to this Section 3 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s
Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to dispose of their Registrable Securities through such underwriting, together with the Corporation and the other parties distributing their
securities through such underwriting, shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Corporation. If the managing underwriter or managing underwriters of an
Underwritten Offering pursuant to this Section 3 advise the Corporation and the Holders that in their reasonable opinion the inclusion of all of the Holders’ Registrable Securities
requested for inclusion in the subject Underwritten Offering (and any related registration, if applicable) (and any other Registrable Securities proposed to be included in such offering) exceeds the number that can be included without being
likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, the Corporation shall include in such Underwritten Offering (and any related registration, if
applicable) only that number of Registrable Securities proposed to be included in such Underwritten Offering (and any related registration, if applicable) that, in the reasonable opinion of the managing underwriter or managing underwriters, will
not have such adverse effect, with such number to be allocated as follows: (A) in the case of any Underwritten Offering initiated by the Corporation, (1) first, to the Corporation, (2) second, if there remains availability for additional
Registrable Securities to be included in such Underwritten Offering, pro rata among the Holders desiring to include shares of Common Stock in such Underwritten Offering
based on the relative number of shares of Common Stock then held by each such Holder, and (3) third, if there remains availability for additional shares of Common Stock to be included in such registration, pro rata among any other holders entitled to participate in such Underwritten Offering, if applicable, based on the relative number of shares of Common Stock then held by each such holder; and (B) if the
offering was not initiated for and on behalf of the Corporation and was initiated for and on behalf of any holder of registration rights (other than any Holder), (1) first, to such other holder, pro rata based on the number of shares of Common Stock held by such other holder, (2) second, if there remains availability for additional Registrable Securities to be included in such Underwritten Offering, pro rata among the Holders desiring to include shares of Common Stock in such offering based on the relative number of shares of Common Stock then held by each such Holder and
(3) third, if there remains availability for additional shares of Common Stock to be included in such registration, to the Corporation.
(c) Right to Terminate Registration. The Corporation shall have the right to terminate or withdraw any registration initiated by it under this Section 3 prior to
the effectiveness of such registration whether or not any Holder has elected to include securities in such registration.
Section 4. Expenses of Registration. All Registration Expenses incurred in connection with all registrations, Shelf Take-Downs and offerings effected pursuant to Section 2
or Section 3, shall be borne by the Corporation; provided, however, that the Corporation shall not be required to pay stock transfer taxes, underwriters’ discounts or selling
commissions relating to the sale of the Registrable Securities.
Section 5. Obligations of the Corporation. Whenever required under this Agreement to effect the registration of any Registrable Securities, the Corporation shall, as expeditiously as reasonably possible:
(a) prepare and file with the SEC a
Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective, and keep such Registration Statement effective until the date as of which all
Registrable Securities registered by such Registration Statement have been sold or cease to be Registrable Securities;
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(b) prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to any Registration Statement and the related Prospectus as may be necessary to keep such Registration Statement effective and to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such Registration Statement in accordance with the intended methods of disposition by sellers thereof set forth in such Registration Statement;
(c) file on the Business Day immediately
following each Effectiveness Date, in accordance with Rule 424(b) under the Securities Act, the final prospectus to be used in connection with sales pursuant to any applicable Registration Statement (whether or not such a prospectus is
technically required by such rule);
(d) permit each Holder whose Registrable
Securities are included in a Registration Statement an opportunity to review and comment upon (i) such Registration Statement within a reasonable number of days prior to its filing with the SEC and (ii) all amendments and supplements to such
Registration Statement (including the Prospectus contained therein) (except for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any similar or successor reports or prospectus supplements the contents
of which is limited to that set forth in such reports) within a reasonable number of days prior to their filing with the SEC, and shall reasonably consider any comments thereto;
(e) furnish to the Holders such numbers of
copies of the Registration Statement and the related Prospectus, including all exhibits thereto and documents incorporated by reference therein and a preliminary prospectus, in conformity with the requirements of the Securities Act, and such
other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them;
(f) in the event of any Underwritten
Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering and to cause its directors and “executive officers” (as defined under Section 16 of
the Exchange Act) to agree to such “lock-up” arrangements for up to 90 days from the date of the execution of the underwriting agreement with respect to such Underwritten Offering with the underwriters thereof, to the extent reasonably requested
by the managing underwriter, subject to customary exceptions for permitted sales by directors and executive officers during such period. Each Holder participating in such Underwritten Offering or that, together with its Affiliates owns 10% or
more of the outstanding Common Stock or has the right to designate a member to the Board of Directors of the Corporation through any shareholder, voting or other agreement with the Corporation or any of its Affiliates shall also enter into and
perform its obligations under a customary “lock-up” agreement with the underwriters of such Underwritten Offering, to the extent reasonably requested by the managing underwriter, containing customary exceptions for permitted sales during the
applicable lock-up period and containing a lock-up period equal to the shorter of (i) the shortest number of days that a director of the Corporation or “executive officer” (as defined under Section 16 of the Exchange Act) of the Corporation
contractually agrees with the underwriters of such Underwritten Offering not to sell any securities of the Corporation following such Underwritten Offering and (ii) 90 days from the date of the execution of the underwriting agreement with respect
to such Underwritten Offering. Notwithstanding the foregoing, any discretionary waiver or termination of this lock-up provision by the Corporation or the underwriters with respect to any of the Holders shall apply to the other Holders as well, pro rata based upon the number of shares subject to such obligations;
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(g) notify each Holder of Registrable
Securities covered by such Registration Statement as soon as reasonably possible after notice thereof is received by the Corporation of any written comments by the SEC or any request by the SEC or any other federal or state governmental authority
for amendments or supplements to such Registration Statement or the related Prospectus or for additional information;
(h) notify each Holder of Registrable
Securities covered by such Registration Statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such
Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances then existing;
(i) upon the occurrence of any event
contemplated by Section 5(h) above, promptly prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances then existing;
(j) notify each Holder of Registrable
Securities covered by such Registration Statement as soon as reasonably practicable after notice thereof is received by the Corporation of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or
any order by the SEC or any other regulatory authority preventing or suspending the use of any preliminary or final prospectus or the initiation or threatening of any proceedings for such purposes, or any notification with respect to the
suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(k) use its reasonable best efforts to
prevent the issuance of any stop order suspending the effectiveness of any Registration Statement or of any order preventing or suspending the use of any preliminary or final prospectus and, if any such order is issued, to obtain the withdrawal
of any such order as soon as practicable;
(l) make available for inspection by each
Holder including Registrable Securities in such registration, any underwriter participating in any distribution pursuant to such registration, and any attorney, accountant or other agent retained by such Holder or underwriter, all financial and
other records, pertinent corporate documents and properties of the Corporation, as such parties may reasonably request, and cause the Corporation’s officers, managers and employees to supply all information reasonably requested by any such
Holder, underwriter, attorney, accountant or agent in connection with such Registration Statement;
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(m) use its reasonable best efforts to
register or qualify, and cooperate with the Holders of Registrable Securities covered by such Registration Statement, the underwriters, if any, and their respective counsel, in connection with the registration or qualification of such Registrable
Securities for offer and sale under the “Blue Sky” or securities laws of each state and other jurisdiction of the United States as any such Holder or underwriters, if any, or their respective counsel reasonably request in writing, and do any and
all other things reasonably necessary or advisable to keep such registration or qualification in effect throughout the Effectiveness Period; provided, that the Corporation shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or take any action which would subject it to taxation or service of process in any such jurisdiction where it is not then so subject;
(n) obtain for delivery to the Holders of
Registrable Securities covered by such Registration Statement and to the underwriters, if any, an opinion or opinions from counsel for the Corporation, dated the effective date of the Registration Statement or, in the event of an Underwritten
Offering, the date of the closing under the underwriting agreement, in customary form, scope and substance, which opinions shall be reasonably satisfactory to such Holders or underwriters, as the case may be, and their respective counsel;
(o) in the case of an Underwritten Offering,
obtain for delivery to the Corporation and the underwriters, with copies to the Holders of Registrable Securities included in such registration, a “comfort letter” from the Corporation’s independent certified public accountants in customary form
and covering such matters of the type customarily covered by comfort letters as the managing underwriter or underwriters reasonably request, dated the date of execution of the underwriting agreement and brought down to the closing under the
underwriting agreement;
(p) use its reasonable best efforts to list
the Registrable Securities that are covered by such Registration Statement with any national securities exchange or automated quotation system on which the Common Stock is then listed;
(q) provide and cause to be maintained a
transfer agent and registrar for all Registrable Securities covered by the applicable Registration Statement from and after a date not later than the effective date of such Registration Statement;
(r) cooperate with Holders including
Registrable Securities in such registration and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, if such Registrable Securities are to be sold in
certificated form, such certificates to be in such denominations and registered in such names as such Holders or the managing underwriters may request at least two (2) Business Days prior to any sale of Registrable Securities;
(s) use its reasonable best efforts to
comply with all applicable securities laws and make available to the Holders, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated
thereunder;
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(t) in the case of an Underwritten
Offering, cause the senior executive officers of the Corporation to participate in the customary “road show” presentations that may be reasonably requested by the underwriters and otherwise to facilitate, cooperate with and participate in each
proposed Underwritten Offering contemplated herein and customary selling efforts related thereto; and
(u) at any time shares of Common Stock are
sold pursuant to an effective Registration Statement or may be resold pursuant to Rule 144, the Corporation shall cooperate with the applicable Holder covered by this Agreement to effect the removal of the legends on such shares as soon as
reasonably practicable after delivery of notice from such Holder of such shares that such conditions for removal have been satisfied.
Section 6. Indemnification.
(a) The Corporation will, and does hereby
undertake to, indemnify and hold harmless each Holder of Registrable Securities and each of such Holder’s officers, managers, trustees, employees, partners, members, equityholders, beneficiaries, agents and directors and each Person, if any, who
controls such Holder, within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, with respect to any registration, qualification, compliance or sale effected pursuant to this Agreement of the Registrable
Securities held by or issuable to such Holder, against all claims, losses, damages and liabilities (or actions in respect thereto) to which they may become subject under the Securities Act, the Exchange Act, or other federal or state law arising
out of or based on (i) in the case of any Registration Statement, any untrue statement or alleged untrue statement of any material fact contained in (which includes documents incorporated by reference in) such Registration Statement or any other
registration statement contemplated by this Agreement, or that arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not
misleading, (ii) in the case of any preliminary prospectus, prospectus supplement or final prospectus contained in any such Registration Statement (including the Prospectus related to such Registration Statement), any untrue statement or alleged
untrue statement of any material fact included in (which includes documents incorporated by reference) such preliminary prospectus, prospectus supplement, final prospectus or Prospectus, or that arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iii) any violation or alleged violation by the Corporation of any
federal, state or common law rule or regulation applicable to the Corporation in connection with any such registration, qualification, compliance or sale, or (iv) any failure to register or qualify Registrable Securities in any state where the
Corporation or its agents have affirmatively undertaken or agreed in writing (including pursuant to Section 5(m)) that the Corporation (the undertaking of any underwriter being
attributed to the Corporation) will undertake such registration or qualification on behalf of the Holders of such Registrable Securities (provided, that in such instance the Corporation shall not be so liable if it has undertaken its reasonable
best efforts to so register or qualify such Registrable Securities) and will reimburse, as incurred, each such Holder and each such officer, manager, trustee, employee, partner, member, equityholder, beneficiary, agent, director and controlling
person, for any legal and any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action; provided, that the Corporation will not be liable in any such case to the extent
that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission made in reliance on and in conformity with written information furnished to the Corporation by such Holder expressly for use
therein.
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(b) Each Holder (if Registrable Securities
held by or issuable to such Holder are included in such registration, qualification, compliance or sale pursuant to this Agreement) does hereby undertake to indemnify and hold harmless, severally and not jointly, the Corporation, each of its
officers and directors and each Person, if any, who controls the Corporation within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each other Holder, each of such other Holder’s officers, managers,
trustees, employees, partners, members, equityholders, beneficiaries, agents and directors and each Person, if any, who controls such Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against
all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based (i) in the case of any Registration Statement, any untrue statement or alleged untrue statement of any material fact contained in (which includes
documents incorporated by reference in) such Registration Statement or any other registration statement contemplated by this Agreement, or that arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading or (ii) in the case of any preliminary prospectus, prospectus supplement or final prospectus contained in any such Registration Statement (including the
Prospectus related to such Registration Statement), any untrue statement or alleged untrue statement of any material fact included in (which includes documents incorporated by reference) such preliminary prospectus, prospectus supplement, final
prospectus or Prospectus, or that arise out of or are based upon the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading, and will reimburse, as incurred, the Corporation, each such officer, director and controlling person of the Corporation, each such other Holder, and each such officer, manager, trustee, employee, partner, member, equityholder,
beneficiary, agent, director and controlling person of such other Holder, for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) was made in reliance upon and in conformity with written information that (x) relates to such Holder in its capacity as a
selling security holder and (y) was furnished to the Corporation by such Holder expressly for use therein; provided, however, that the aggregate liability of each Holder hereunder shall be limited to the net proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification obligation.
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(c) Each party entitled to indemnification
under this Section 6 (the “Indemnified Party”) shall give notice to the party required to
provide such indemnification (the “Indemnifying Party”) of any claim as to which indemnification may be sought as promptly as practicable after such
Indemnified Party has actual knowledge thereof, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided, that counsel for the Indemnifying Party, who shall conduct the
defense of such claim or litigation, shall be subject to approval by the Indemnified Party (whose approval shall not be unreasonably withheld), and the Indemnified Party may retain its own counsel at the Indemnifying Party’s expense if (i) the
Indemnifying Party has agreed in writing to pay the fees and expenses of such counsel, (ii) the Indemnifying Party has failed to promptly assume the defense of any such claim or any litigation resulting therefrom or to employ counsel that has not
been approved by the Indemnified Party (whose approval shall not be unreasonably withheld), (iii) representation of such Indemnified Party would be inappropriate due to actual or potential differing interests between such Indemnified Party and
any other party represented by such counsel in such proceeding or (iv) if the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the
Indemnifying Party; and provided, further, that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section
6, except to the extent that such failure to give notice materially prejudices the Indemnifying Party in the defense of any such claim or any such litigation. An Indemnifying Party, in the defense of any such claim or litigation,
shall not, without the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement, unless such judgment or settlement (i) includes as a term thereof the giving by the claimant or plaintiff therein to such
Indemnified Party of an unconditional release from all liability with respect to such claim or litigation and (ii) does not include any recovery (including any statement as to or an admission of fault, culpability or a failure to act by or on
behalf of such Indemnified Party) other than monetary damages, and provided that any sums payable in connection with such judgment or settlement are paid in full by the Indemnifying Party. An Indemnifying Party 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, the Indemnifying Party agrees to indemnify each Indemnified Party from and against any loss or
liability by reason of such settlement or judgment.
(d) In order to provide for just and
equitable contribution in case (and only in the event that) indemnification pursuant to this Section 6 is prohibited or limited by law, the Indemnifying Party, in lieu of indemnifying
such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect the relative fault of the Indemnifying
Party and Indemnified Party in connection with the actions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party
shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of material fact or omission or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and such Person’s relative intent, knowledge, access to information and opportunity to correct or prevent such actions; provided, however, that, in any case, (i) no Holder
will be required to contribute any amount in excess of the net proceeds received by such Holder upon the sale of the Registrable Securities giving rise to such contribution obligation and (ii) no Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(e) The indemnities provided in this Section 6 shall survive the transfer of any Registrable Securities by such Holder.
Section 7. Restrictions on Transfer.
(a) Each Holder agrees that, prior to the expiration of the Lock-Up Period,
except (i) as otherwise provided in Section 7(b) below or (ii) with the prior written consent of the Corporation, such Holder will not, directly or indirectly, transfer all or any Lock-Up
Shares or any right or economic interest pertaining thereto, including the right to vote or consent on any matter or to receive or have any economic interest in the Corporation pursuant thereto (the foregoing restrictions are referred to as the “Lock-Up Restrictions”). Each Holder agrees and consents to the entry of stop transfer instructions with the Corporation’s transfer agent and registrar against
the transfer in violation of this Section 7(a) of any Lock-Up Shares during the Lock-Up Period. The Corporation shall promptly remove any and all such stop transfer instructions imposed
with the Corporation’s transfer agent and registrar against the transfer in violation of this Section 7(a) following the Lock-Up Period applicable to such Lock-Up Shares.
20
(b) To the extent permitted under
applicable securities laws, any Holder shall be permitted to transfer the Lock-Up Shares notwithstanding the Lock-Up Restrictions, directly or indirectly, to the equityholders, partners, members or Affiliates of such Holder; provided, however, that each such transferee shall (i) represent and warrant that such transferee is an
“accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act, (ii) agree to be bound by the Lock-Up Restrictions and (iii) execute the Joinder (each such transferee, a “Permitted Transferee”). Each such Permitted Transferee shall be deemed a Holder hereunder, entitled and subject to all of the rights and obligations of a Holder hereunder,
including the Lock-Up Restrictions, subject only to the Corporation’s receipt of written notice of the transfer of Registrable Securities by any Holder pursuant to this provision and a duly executed joinder to this Agreement from such transferee
in the form of Exhibit A attached hereto (a “Joinder”) agreeing to be bound by the terms of
this Agreement. Each Holder shall cooperate and provide any reasonably required certifications to the Corporation, counsel to the Corporation and the transfer agent in connection with any proposed transfers to a Permitted Transferee relating to
compliance with applicable securities laws.
(c) The restrictive legend on any
Registrable Securities shall be removed if (i) such securities are sold pursuant to an effective registration statement, (ii) a registration statement covering the resale of such securities is effective under the Securities Act and the applicable
holder of such securities delivers to the Corporation a representation letter agreeing that such securities will be sold under such effective registration statement, (iii) if such securities may be sold by the holder thereof free of restrictions
pursuant to Rule 144(b) under the Securities Act, or (iv) such securities are sold, assigned or otherwise transferred pursuant to Rule 144 under the Securities Act; provided, that with respect to clause (iii) or (iv) above, the holder of such
securities shall, upon request, provide such documentation and evidence as may reasonably be required by the Corporation to confirm that the legend may be removed under applicable securities law. The Corporation shall cooperate with any
applicable holder of Registrable Securities to effect removal of the legend on such securities pursuant to this Section 7(c) (including, if necessary, by procuring the delivery of one
or more legal opinions by its outside counsel directed to the Corporation’s transfer agent) as soon as reasonably practicable after delivery of notice from such holder that one or more conditions to removal are satisfied (together with any
documentation required to be delivered by such holder pursuant to the immediately preceding sentence). The Corporation shall bear all direct costs and expenses associated with the removal of a legend pursuant to this Section 7(c).
(d) In the event that, during the Lock-Up
Period, there is any release or waiver of the Lock-Up Restrictions with respect to any Lock-Up Shares, such release or waiver shall apply pro rata to all Lock-Up Shares
regardless of Holder.
21
Section 8. Information by Holder. Any Holder of Registrable Securities included in any registration shall furnish to the Corporation such information regarding such Holder and the distribution proposed by such Holder as
the Corporation may reasonably request in writing and as shall be required in connection with any registration, qualification or compliance referred to in this Agreement.
Section 9. Transfer of Registration Rights. The Corporation shall not assign this Agreement or any rights or obligations hereunder in whole or in part without the prior written consent of the Holders of a majority of the
Registrable Securities then outstanding; provided, however, that in any transaction, whether by merger, reorganization, restructuring, consolidation, financing or otherwise, whereby the Corporation is a party and in which the Registrable
Securities are converted into the equity securities of another Person, from and after the effective time of such transaction, such Person shall, by virtue of such transaction, be deemed to have assumed the obligations of the Corporation
hereunder, the term “Corporation” shall be deemed to refer to such Person and the term “Registrable Securities” shall be deemed to include the securities received by the Holders in connection with such transaction unless such securities are
otherwise freely tradable by the Holders after giving effect to such transaction. This Agreement and the rights, duties and obligations of any Holder hereunder may be assigned in whole or in part to a transferee of Registrable Securities without
the prior written consent of the Corporation and shall be automatically assigned with respect to any Note Shares constituting Registrable Securities to the extent of, and in connection with, any transfer of associated Convertible Notes, so long
as such transfer of Convertible Notes shall have been made in accordance with the applicable provisions of the Indenture and the Convertible Notes. Notwithstanding the foregoing, no such assignment shall be binding or obligate the Corporation
unless and until the assignee agrees in writing to be bound by the terms and conditions of this Agreement by the delivery of a duly executed Joinder.
Section 10. Limitations on Subsequent Registration Rights. From and after the date of this Agreement, the Corporation shall not, without the prior written consent of the Holders holding more than a majority of the
Registrable Securities, enter into any agreement with any holder or prospective holder of any securities of the Corporation that would allow such holder or prospective holder any registration rights the terms of which conflict with the terms of
this Agreement.
Section 11. Rule 144 Reporting. With a view to making available to the Holders the benefits of certain rules and regulations of the SEC that may permit the sale of the Registrable Securities to the public without
registration, the Corporation agrees to use its reasonable best efforts from and after the Effective Date to:
(a) make and keep current public
information available, within the meaning of Rule 144, at all times;
(b) file with the SEC, in a timely manner,
all reports and other documents required of the Corporation under the Securities Act and Exchange Act, including, without limitation, the electronic submission of every Interactive Data File (as defined in 17 C.F.R. § 232.11) required to be
submitted pursuant to Regulation S-T promulgated by the SEC; and
(c) so long as a Holder owns any Registrable
Securities, furnish to such Holder forthwith upon request: (i) a written statement by the Corporation as to its compliance with the reporting requirements of Rule 144, the Securities Act and the Exchange Act; (ii) a copy of the most recent annual
or quarterly report of the Corporation; and (iii) such other reports and documents as a Holder may reasonably request in availing itself of any rule or regulation of the SEC allowing it to sell any such securities without registration.
22
Section 12. Termination of Registration Rights. The rights of any particular Holder under Section 2 or Section
3 hereof shall terminate as to any Holder on the date that such Holder no longer “beneficially owns” (within the meaning set forth in Rule 13d-3 promulgated under the Exchange Act) any Registrable Securities or any Convertible
Notes which are convertible into Registrable Securities.
Section 13. MNPI Provisions.
(a) Each Holder acknowledges that the
provisions of this Agreement that require communications by the Corporation or other Holders to such Holder may result in such Holder and its Representatives (as defined below) acquiring MNPI (which may include, solely by way of illustration, the
fact that an offering of the Corporation’s securities is pending or the number of Corporation securities to be offered by, or the identity of, the selling Holders).
(b) Each Holder agrees that it will maintain
the confidentiality of such MNPI and, to the extent such Holder is not a natural person, such confidential treatment shall be in accordance with procedures adopted by it in good faith to protect confidential information of third parties delivered
to such Holder (“Policies”); provided that a Holder may deliver or disclose MNPI
to (i) its directors, officers, employees, agents, attorneys, members, affiliates and financial and other advisors (collectively, the “Representatives”),
but solely to the extent such disclosure reasonably relates to its evaluation or exercise of its rights under this Agreement and the sale of any Registrable Securities in connection with the subject of the notice, (ii) any federal or state
regulatory authority having jurisdiction over such Holder, (iii) any Person if necessary to effect compliance with any law, rule, regulation or order applicable to such Holder, (iv) in response to any subpoena or other legal process, or (v) in
connection with any litigation to which such Holder is a party; provided further, that in the case of clause (i), the recipients of such MNPI are subject to the Policies or agree to hold confidential the MNPI in a manner substantially consistent
with the terms of this Section 13, and that in the case of clauses (ii) through (v), such disclosure is required by applicable law, rule or regulation (unless, in the case of clause
(v), such disclosure is in connection with or relates to any claim, counter-claim or defense by such Holder or any of its Representatives) and such Holder shall promptly notify the Corporation of such disclosure to the extent such Holder is
legally permitted to give such notice.
(c) Each Holder shall have the right, at
any time and from time to time (including after receiving information regarding any potential Public Offering), to elect to not receive any notice that the Corporation or any other Holders otherwise are required to deliver pursuant to this
Agreement (except as set forth in this Section 13(c)) by delivering to the Corporation a written statement signed by such Holder that it does not want to receive any notices hereunder
(an “Opt-Out Request”); in which case and notwithstanding anything to the contrary in this Agreement, the Corporation and other Holders shall not be
required to, and shall not, deliver any notice or other information required to be provided to Holders hereunder to the extent that the Corporation or such other Holders reasonably expect would result in a Holder acquiring MNPI. For the avoidance
of doubt, any notice provided by the Corporation to suspend the use of a Registration Statement without the containing the reasons for such suspension shall not be deemed to be a notice that the Corporation or such other Holders reasonably expect
would result in a Holder acquiring MNPI. An Opt-Out Request may state a date on which it expires or, if no such date is specified, shall remain in effect indefinitely. A Holder who previously has given the Corporation an Opt-Out Request may
revoke such request at any time, and there shall be no limit on the ability of a Holder to issue and revoke subsequent Opt-Out Requests; provided that each Holder shall use
commercially reasonable efforts to minimize the administrative burden on the Corporation arising in connection with any such Opt-Out Requests.
23
Section 14. General Provisions.
(a) Amendments and Waivers. Except as otherwise provided herein, the provisions of this Agreement may be amended, modified, terminated or waived only with the prior written consent of the Corporation and Holders owning a
majority of the Registrable Securities; provided that no such amendment, modification, termination or waiver that would materially and adversely affect a Holder in a manner
materially different than any other Holder shall be effective against such Holder without the consent of such Holder that is materially and adversely affected thereby. The failure or delay of any Person to enforce any of the provisions of this
Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of such Person thereafter to enforce each and every provision of this Agreement in accordance with its terms. A waiver or consent to or of any
breach or default by any Person in the performance by that Person of his, her or its obligations under this Agreement shall not be deemed to be a consent or waiver to or of any other breach or default in the performance by that Person of the same
or any other obligations of that Person under this Agreement.
(b) Remedies. The parties to this Agreement shall be entitled to enforce their rights under this Agreement specifically (without posting a bond or other security), to recover damages caused by reason of any breach of any
provision of this Agreement and to exercise all other rights existing in their favor. The parties hereto agree and acknowledge that a breach of this Agreement would cause irreparable harm and money damages would not be an adequate remedy for any
such breach and that, in addition to any other rights and remedies existing hereunder, any party shall be entitled to specific performance and/or other injunctive relief from any court of law or equity of competent jurisdiction (without posting
any bond or other security) in order to enforce or prevent violation of the provisions of this Agreement.
(c) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited,
invalid, illegal or unenforceable in any respect under any applicable law or regulation in any jurisdiction, such prohibition, invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of any other
provision of this Agreement in such jurisdiction or in any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such prohibited, invalid, illegal or unenforceable provision had never been
contained herein.
(d) Entire Agreement. Except as otherwise provided herein, this Agreement and the Indenture contain the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and supersede
and preempt any prior understandings, agreements or representations by or among the parties hereto, written or oral, which may have related to the subject matter hereof in any way.
24
(e) Successors and Assigns. Subject to Section 9, this Agreement shall bind and inure to the benefit and be enforceable by the Corporation and its permitted
successors and assigns and the Holders and their respective permitted successors and assigns (whether so expressed or not). In addition, whether or not any express assignment has been made, the provisions of this Agreement which are for the
benefit of Holders are also for the benefit of, and enforceable by, any subsequent or successor Holder.
(f) Notices. Any notice, demand or other communication to be given under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (i) when delivered personally to the
recipient, (ii) when sent by electronic mail (so long as no “bounce back” or similar message of non-delivery is received with respect thereto) if sent during normal business hours of the recipient but, if not, then on the next Business Day, (iii)
one (1) Business Day after it is sent to the recipient by reputable overnight courier service (charges prepaid) or (iv) three (3) Business Days after it is mailed to the recipient by first class mail, return receipt requested. Such notices,
demands and other communications shall be sent to the Corporation at the address specified below and to any Initial Holder at its e-mail address or address set forth on its signature page hereto, or at such e-mail address or address or to the
attention of such other Person as the recipient party has specified by prior written notice to the sending party. Any party may change such party’s address for receipt of notice by providing prior written notice of the change to the sending
party as provided herein.
If to the Corporation:
Bed Bath & Beyond, Inc.
433 W. Ascension Way, 3rd Floor
Murray, UT 84123
Attention: Melissa Smith, General Counsel
Email: [email protected]
with a copy, which will not constitute notice, to:
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Attention: Timothy P. FitzSimons; Michael P. Heinz
Email: [email protected]
If to any Initial Holder, at its e-mail address or address set forth on its signature page hereto, or as may be subsequently modified by written notice
to the Corporation given in accordance with this Section 14(f).
(g) Business Days. If any time period for giving notice or taking action hereunder expires on a day that is not a Business Day, the time period shall automatically be extended to the immediately following Business Day.
25
(h) Governing Law. All issues and questions concerning the construction, validity, interpretation and enforcement of this Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of New York, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.
(i) MUTUAL WAIVER OF JURY TRIAL. AS A SPECIFICALLY BARGAINED FOR INDUCEMENT FOR EACH OF THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH COUNSEL), EACH PARTY HERETO EXPRESSLY
WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
(j) CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH OF THE PARTIES IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE CITY AND COUNTY OF NEW YORK
BOROUGH OF MANHATTAN, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY RELATED DOCUMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY. EACH OF THE PARTIES HERETO FURTHER AGREES THAT SERVICE OF ANY
PROCESS, SUMMONS, NOTICE OR DOCUMENT BY U.S. REGISTERED MAIL TO SUCH PARTY’S RESPECTIVE ADDRESS SET FORTH ABOVE SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY ACTION, SUIT OR PROCEEDING WITH RESPECT TO ANY MATTERS TO WHICH IT HAS SUBMITTED TO
JURISDICTION IN THIS PARAGRAPH. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY RELATED DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY IN SUCH COURT, AND HEREBY AND THEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
(k) No Recourse. Notwithstanding anything to the contrary in this Agreement, the Corporation and each Holder agrees and acknowledges that no recourse under this Agreement or any documents or instruments delivered in
connection with this Agreement, shall be had against any current or future director, officer, employee, general or limited partner or member of any Holder or of any Affiliate or assignee thereof, whether by the enforcement of any assessment or by
any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any
current or future officer, agent or employee of any Holder or any current or future member of any Holder or any current or future director, officer, employee, partner or member of any Holder or of any Affiliate or assignee thereof, as such for
any obligation of any Holder under this Agreement or any documents or instruments delivered in connection with this Agreement for any claim based on, in respect of or by reason of such obligations or their creation.
26
(l) Descriptive Headings; Interpretation. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. The use of the words “include” and “including” (and
variations thereof) in this Agreement shall be by way of example rather than by limitation. The use of the word “or” shall not be deemed to be exclusive. The terms “herein,” “hereunder,” “hereof” and words of like import refer to this entire
Agreement instead of just the provision in which they are found.
(m) No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any
party.
(n) Counterparts; Electronic Signatures. This Agreement may be executed in multiple counterparts, any one of which need not contain the signature of more than one party, but all such counterparts taken together shall
constitute one and the same agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by all parties hereto by electronic transmission in .PDF format shall be sufficient to bind all parties to the terms and conditions
of this Agreement. Each party hereto intends that any electronic signatures complying with the U.S. federal ESIGN Act of 2000 (including DocuSign) constitute original signatures binding upon such party and that an electronic copy or counterpart
of this Agreement containing signatures (original or electronic) of such party shall be deemed to be an original counterpart of this Agreement.
(o) Further Assurances. In connection with this Agreement and the transactions contemplated hereby, each party hereto shall execute and deliver any additional documents and instruments and perform any additional acts that
may be necessary or appropriate to effectuate and perform the provisions of this Agreement and the transactions contemplated hereby.
(Signature Pages Follow)
27
IN WITNESS WHEREOF, the parties have executed this Registration Rights and Lock-Up Agreement effective as of the Effective Date set forth above.
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BED BATH & BEYOND, INC.
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||
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By:
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/s/ Marcus Lemonis
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Name:
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Marcus Lemonis
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Title:
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Executive Chairman and Chief Executive Officer
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[Signature Page to Registration Rights and Lock-up Agreement]
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INITIAL HOLDERS:
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AMMC CLO 23, LIMITED
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By:
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/s/ Joseph Haverkamp | |
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Name: Joseph Haverkamp
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Title: Senior Vice President
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Address:
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301 East Fourth Street, | |
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38th Floor
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Cincinnati, OH 45202
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||
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Attention: Patrick Byrne
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||
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Email: [email protected]
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AMMC CLO 24, LIMITED
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By:
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/s/ Joseph Haverkamp
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Name: Joseph Haverkamp
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Title: Senior Vice President
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Address:
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301 East Fourth Street, | |
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38th Floor
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Cincinnati, OH 45202
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||
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Attention: Patrick Byrne
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||
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Email: [email protected]
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||
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AMMC CLO 25, LIMITED
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||
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By:
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/s/ Joseph Haverkamp
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Name: Joseph Haverkamp
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||
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Title: Senior Vice President
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||
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Address:
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301 East Fourth Street, | |
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38th Floor
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||
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Cincinnati, OH 45202
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||
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Attention: Patrick Byrne
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||
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Email: [email protected]
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||
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AMMC CLO 27, LIMITED
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||
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By:
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/s/ Joseph Haverkamp
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Name: Joseph Haverkamp
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||
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Title: Senior Vice President
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Address:
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301 East Fourth Street, | |
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38th Floor
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Cincinnati, OH 45202
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||
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Attention: Patrick Byrne
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||
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Email: [email protected]
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||
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ALCOF III NUBT, L.P.
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||
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By: Arbour Lane Fund III GP, LLC
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Its General Partner
|
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By:
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/s/ Kenneth Hoffman
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Name: Kenneth Hoffman
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Title: Manager
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Address:
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700 Canal Street 4th Floor
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Stamford CT 06902
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Attention: Operations
|
||
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Email: [email protected]
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CANTOR FITZGERALD SECURITIES
|
||
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By:
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/s/ Christian Wall
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Name: Christian Wall
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Title: Global Head of Fixed Income
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Address: 6805 Carnegie Boulevard, Suite 250
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||
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Charlotte, NC 28211
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Attention: Corporate Actions
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||
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Suzanne Austin
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||
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Bobbie Young
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Bank Loans
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Email: [email protected]
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CROSSINGBRIDGE LOW DURATION HIGH INCOME FUND
|
||
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By:
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/s/ Spencer Rolfe | |
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Name: Spencer Rolfe
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||
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Title: Authorized Signatory
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||
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Address: 427 Bedford Road, Suite 220
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Pleasantville, NY 10570
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||
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Attention: Spencer Rolfe
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||
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Email: [email protected]
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RIVERPARK STRATEGIC INCOME FUND
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||
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By:
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/s/ Spencer Rolfe
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Name: Spencer Rolfe
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||
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Title: Authorized Signatory
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||
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Address: 427 Bedford Road, Suite 220
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||
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Pleasantville, NY 10570
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||
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Attention: Spencer Rolfe
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||
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Email: [email protected]
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DESTINATIONS GLOBAL FIXED INCOME OPPORTUNITIES FUND
|
||
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By:
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/s/ Spencer Rolfe
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Name: Spencer Rolfe
|
||
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Title: Authorized Signatory
|
||
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Address: 427 Bedford Road, Suite 220
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||
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Pleasantville, NY 10570
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||
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Attention: Spencer Rolfe
|
||
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Email: [email protected]
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||
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CROSSINGBRIDGE RESPONSIBLE CREDIT FUND
|
||
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By:
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/s/ Spencer Rolfe
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|
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Name: Spencer Rolfe
|
||
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Title: Authorized Signatory
|
||
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Address: 427 Bedford Road, Suite 220
|
||
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Pleasantville, NY 10570
|
||
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Attention: Spencer Rolfe
|
||
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Email: [email protected]
|
||
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JSS COH LLC
|
||
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By:
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/s/ Spencer Rolfe
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|
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Name: Spencer Rolfe
|
||
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Title: Authorized Signatory
|
||
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Address: 427 Bedford Road, Suite 220
|
||
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Pleasantville, NY 10570
|
||
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Attention: Spencer Rolfe
|
||
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Email: [email protected]
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||
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JOSEPH & DIANE STEINBERG 1992 CHARITABLE TRUST
|
||
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By:
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/s/ Spencer Rolfe
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|
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Name: Spencer Rolfe
|
||
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Title: Authorized Signatory
|
||
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Address: 427 Bedford Road, Suite 220
|
||
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Pleasantville, NY 10570
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||
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Attention: Spencer Rolfe
|
||
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Email: [email protected]
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||
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GLENDON OPPORTUNITIES FUND II, L.P.
|
||
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By: Glendon Capital Management L.P., as its investment advisor
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||
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By:
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/s/ Haig Maghakian
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Name: Haig Maghakian
|
||
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Title: Authorized Person
|
||
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Address: 2425 Olympic Blvd, Suite 500E
|
||
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Santa Monica, CA 90404, USA
|
||
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Attention: Operations Team
|
||
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Email: [email protected]
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||
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GLENDON OPPORTUNITIES FUND III, L.P.
|
||
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By: Glendon Capital Management L.P., as its investment advisor
|
||
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By:
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/s/ Haig Maghakian
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|
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Name: Haig Maghakian
|
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Title: Authorized Person
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Address: 2425 Olympic Blvd, Suite 500E
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Santa Monica, CA 90404, USA
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||
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Attention: Operations Team
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Email: [email protected]
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||
|
GOLUB SAPPHIRE FUND, L.P.
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||
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By: GC Advisors LLC, its Manager
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By:
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/s/ Gregory W. Cashman
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Name: Gregory W. Cashman
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Title: Co-Head of Direct Lending
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Address: 150 S. Wacker Drive, Suite 800, Chicago, IL 60606
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||
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Attention: Kevin Sweeney
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||
|
Email: [email protected]
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GC FINANCE OPERATIONS TRUST
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||
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By: GC Advisors LLC, its Manager
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||
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By:
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/s/ Gregory W. Cashman
|
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Name: Gregory W. Cashman
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||
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Title: Co-Head of Direct Lending
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||
|
Address: 150 S. Wacker Drive, Suite 800, Chicago, IL 60606
|
||
|
Attention: Kevin Sweeney
|
||
|
Email: [email protected]
|
||
|
GEMS 6 SUB 2, LLC
|
||
|
By: GC Advisors LLC, its Manager
|
||
|
By:
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/s/ Gregory W. Cashman
|
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|
Name: Gregory W. Cashman
|
||
|
Title: Co-Head of Direct Lending
|
||
|
Address: 150 S. Wacker Drive, Suite 800, Chicago, IL 60606
|
||
|
Attention: Kevin Sweeney
|
||
|
Email: [email protected]
|
||
|
GEMS 6I SUB 1, L.P.
|
||
|
By: GC Advisors LLC, its Manager
|
||
|
By:
|
/s/ Gregory W. Cashman
|
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|
Name: Gregory W. Cashman
|
||
|
Title: Co-Head of Direct Lending
|
||
|
Address: 150 S. Wacker Drive, Suite 800, Chicago, IL 60606
|
||
|
Attention: Kevin Sweeney
|
||
|
Email: [email protected]
|
||
|
OPAL BSL HOLDINGS 1 LLC
|
||
|
By: GC Advisors LLC, its Manager
|
||
|
By:
|
/s/ Gregory W. Cashman
|
|
|
Name: Gregory W. Cashman
|
||
|
Title: Co-Head of Direct Lending
|
||
|
Address: 150 S. Wacker Drive, Suite 800, Chicago, IL 60606
|
||
|
Attention: Kevin Sweeney
|
||
|
Email: [email protected]
|
||
|
LCM XIV LIMITED PARTNERSHIP
|
||
|
LCM XV LIMITED PARTNERSHIP
|
||
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LCM XVI LIMITED PARTNERSHIP
|
||
|
LCM XVII LIMITED PARTNERSHIP
|
||
|
LCM XVIII LIMITED PARTNERSHIP
|
||
|
LCM XXIII LTD.
|
||
|
LCM XXIV LTD.
|
||
|
LCM XXV LTD.
|
||
|
LCM LOAN INCOME FUND I LTD.
|
||
|
LCM 26 LTD.
|
||
|
LCM 27 LTD.
|
||
|
LCM 28 LTD.
|
||
|
LCM 29 LTD.
|
||
|
LCM 30 LTD.
|
||
|
LCM 31 LTD.
|
||
|
LCM 32 LTD.
|
||
|
LCM 33 LTD.
|
||
|
LCM 34 LTD.
|
||
|
LCM 35 LTD.
|
||
|
LCM 36 LTD.
|
||
|
LCM 37 LTD.
|
||
|
LCM 38 LTD.
|
||
|
LCM 39 LTD.
|
||
|
LCM 40 LTD.
|
||
|
By: LCM Asset Management LLC, as Collateral Manager
|
||
|
By:
|
/s/ Alexander Kenna
|
|
|
Name: Alexander Kenna
|
||
|
Title: Authorized Signatory
|
||
|
Address: LCM Asset Management LLC / 399 Park Avenue, 22nd Floor / New York, NY 10022
|
||
|
Attention: Alexander Kenna
|
||
|
Email: [email protected]
|
||
|
LOOMIS SAYLES SENIOR FLOATING RATE & FIXED INCOME FUND
|
||
|
By: Loomis, Sayles & Company, L.P., its Investment Adviser
|
||
|
By: Loomis, Sayles & Company, Incorporated, its General Partner
|
||
|
By:
|
/s/ Charles Fievet
|
|
|
Name: Charles Fievet
|
||
|
Title: Vice President, Assistant General Counsel
|
||
|
Address:
|
One Financial Center, 5th Floor
|
|
|
Boston, MA 02111
|
||
|
Attention: Corporate Actions
|
||
|
Email:
|
||
|
SPRUCE ADVISORY GROUP, LLC
|
||
|
By:
|
/s/ Joel Bines
|
|
|
Name: Joel Bines
|
||
|
Title: Managing Partner
|
||
|
Address:
|
||
|
6031 Norway Rd.
|
||
|
Dallas, TX 75230
|
||
|
Attention: Joel Bines
|
||
|
Email: [email protected]
|
||
|
TIKEHAU STRUCTURED CREDIT MANAGEMENT LLC, on behalf of Tikehau US CLO I Ltd., Tikehau US CLO II Ltd., Tikehau US CLO III Ltd. and Tikehau US CLO IV Ltd.
|
||
|
By:
|
/s/ Epeli Rokotuiveikau
|
|
|
Name: Epeli Rokotuiveikau
|
||
|
Title: Authorized Signatory
|
||
|
Address:
|
9 West 57th Street, 45th Floor
|
|
|
New York, NY 10019
|
||
|
Attention: Epeli Rokotuiveikau
|
||
|
Email: [email protected]
|
||
|
with a copy to [email protected]
|
||
|
Z CAPITAL CREDIT PARTNERS CLO 2021-1 LTD.
|
||
|
By:
|
/s/ Jedidiah Lee
|
|
|
Name: Jedidiah Lee
|
||
|
Title: Authorized Signatory
|
||
|
Address:
|
430 Park Ave Floor 16
|
|
|
New York, NY 10022
|
||
|
Attention: Dritan Bregasi
|
||
|
Email: [email protected]; [email protected]
|
||
EXHIBIT A
Form of Joinder
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT JOINDER
The undersigned is executing and delivering this Joinder pursuant to the Registration Rights and Lock-Up Agreement dated as of July 8, 2026 (as the
same may hereafter be amended, the “Registration Rights Agreement”), among Bed Bath & Beyond, Inc., a Delaware corporation (the “Corporation”), and each of the entities listed under the header “Initial Holders” on the signature pages thereto. Capitalized terms used in this Joinder have the meanings ascribed
to them in the Registration Rights Agreement.
By executing and delivering this Joinder to the Corporation, the undersigned hereby agrees to become a party to, to be bound by, and to comply with
the provisions of the Registration Rights Agreement as a Holder of Registrable Securities in the same manner as if the undersigned were an original signatory to the Registration Rights Agreement (including the Lock-Up Restrictions set forth therein),
and the shares of Common Stock transferred to the undersigned by the Initial Holder in the manner contemplated in Section 7(b) of the Registration Rights Agreement shall be deemed to be
Registrable Securities under the Registration Rights Agreement to the extent provided therein unless otherwise stated in the Registration Rights Agreement. The Corporation is directed to take notice of the address below the undersigned’s signature
on this Joinder for all relevant purposes of Section 14(f) of the Registration Rights Agreement.
The undersigned confirms that it is an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act.
Accordingly, the undersigned has executed and delivered this Joinder as of the ____ day of _______________________, 20____.
|
Transferee:
|
[_______________________________]
|
|
|
By:
|
||
|
Name:
|
|
Title:
|
|
Address:
|
||
|
Attention:
|
|
Email:
|