(2) the Company defaults in the payment of principal of any Note when the same becomes due and payable at
the maturity date, upon declaration of acceleration, upon optional redemption or any required repurchase or otherwise;
(3) failure by the Company to
deliver the consideration due upon the conversion of any Notes and such failure continues for three business days;
(4) failure by the Company to give a
fundamental change notice or a notice of a specified corporate transaction at the time, in the manner, and with the contents under the Indenture in each case when due;
(5) failure by the Company to comply with its obligations under the Indenture with respect to consolidation, merger and sale of assets of the Company;
(6) the Company defaults in the performance of or breaches any other covenant or agreement of the Company in the Indenture with respect to the Notes and such
default or breach continues for a period of 60 consecutive days after written notice of such default is delivered to the Company by the trustee or to the Company by the holders of 25% or more in aggregate principal amount of the Notes then
outstanding;
(7) certain defaults by the Company or any of its subsidiaries with respect to indebtedness for borrowed money of at least $15,000,000;
(8) one or more final judgments being rendered against the Company or any of its subsidiaries for the payment of at least $15,000,000 (or its foreign currency
equivalent) in the aggregate (excluding any amounts covered by insurance), where such judgment is not discharged or stayed within 60 days after (i) the date on which the right to appeal the same has expired, if no such appeal has commenced; or
(ii) the date on which all rights to appeal have been extinguished; and
(9) certain events of bankruptcy, insolvency, or reorganization of the
Company any of the Companys significant subsidiaries.
If an event of default described in paragraph (9) above occurs with respect to the
Company (and not solely with respect to a significant subsidiary of the Company), then the principal amount of, and all accrued and unpaid interest on, all of the Notes then outstanding will immediately become due and payable without any further
action or notice by any person. If an event of default (other than an event of default described in paragraph (9) above with respect to the Company and not solely with respect to a significant subsidiary of ours) occurs and is continuing, then,
with the exception of certain reporting events of default, the trustee, by notice to the Company, or noteholders of at least 25% of the aggregate principal amount of notes then outstanding, by notice to us and the trustee, may declare the principal
amount of, and all accrued and unpaid interest on, all of the Notes then outstanding to become due and payable immediately.
The summary of the foregoing
transactions is qualified in its entirety by reference to the text of the Indenture, which is included as Exhibit 4.1 hereto and is incorporated herein by reference.
Capped Call Transactions
On June 10, 2020, in
connection with the offering of the Notes, the Company entered into capped call transactions with respect to its common stock (the Base Purchased Calls) with each of Morgan Stanley & Co. LLC, Credit Suisse Securities (USA) LLC
and UBS Securities LLC (collectively, the Counterparties). The Company paid an aggregate amount of approximately $19.6 million to the Counterparties for the Base Purchased Calls. The Base Purchased Calls cover, subject to
anti-dilution adjustments that are intended to be substantially identical to those in the Notes, approximately 8.4 million shares of the Companys common stock at a strike price that corresponds to the initial conversion price of the
Notes, also subject to adjustment, and are exercisable upon conversion of the Notes. The Base Purchased Calls will expire upon the maturity of the Notes.
If the initial purchasers exercise of their option to buy additional Notes, then the Company expects to enter into one or more additional convertible note
hedge transactions (collectively with the Base Purchased Calls, the Purchased Calls) with each of the Counterparties on terms substantially similar to those of the Base Purchased Calls relating to the number of shares underlying such
option.
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