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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________
FORM 8-K
____________________________
CURRENT REPORT
Pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
October 26, 2023 (October 19, 2023)
SEMTECH CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation)
001-06395 |
|
95-2119684 |
(Commission File Number) |
|
(IRS Employer Identification No.) |
200 Flynn Road |
|
|
Camarillo, California |
|
93012-8790 |
(Address of principal executive offices) |
|
(Zip Code) |
805-498-2111
(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:
|
☐ |
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)) |
Securities registered pursuant to Section 12(b) of the Exchange Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Common Stock, par value $0.01 per share |
|
SMTC |
|
The Nasdaq Global Select Market |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934
(17 CFR §240.12b-2).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act. ☐
Item 1.01 |
Entry into a Material Definitive Agreement. |
Indenture
On October
26, 2023, Semtech Corporation (the “Company”)
entered into an indenture (the “Indenture”) governing the terms of
its $250 million aggregate principal amount of 4.00% Convertible Senior Notes due 2028 (the “Notes”),
by and among the Company, the Subsidiary Guarantors (as defined below) and U.S. Bank Trust Company, National Association, as trustee
(the “Trustee”). The Notes will bear interest at a rate of 4.00% per year,
payable semi-annually in arrears on May 1 and November 1 of each year, beginning on May 1, 2024. The Notes will mature on November 1,
2028, unless earlier converted, redeemed or repurchased.
The initial
conversion rate of the Notes is 49.0810 shares of the Company’s common stock, par value $0.01 per share (the “Common
Stock”), per $1,000 principal amount of Notes (which is equivalent to an initial conversion price of approximately $20.37
per share). The conversion rate will be subject to adjustment upon the occurrence of certain events specified in the Indenture but will
not be adjusted for accrued and unpaid interest. In addition, upon the occurrence of a Make-Whole Fundamental Change (as defined in the
Indenture) or if the Company delivers a Notice of Redemption (as defined in the Indenture), the Company will, in certain circumstances,
increase the conversion rate by a number of additional shares of Common Stock as described in the Indenture for a holder who elects to
convert its Notes in connection with such Make-Whole Fundamental Change or to convert its Notes called (or deemed called) for redemption
in connection with such Notice of Redemption, as the case may be.
Prior to
the close of business on the business day immediately preceding August 1, 2028, the Notes will be convertible at the option of the holders
thereof only under the following circumstances: (1) during any fiscal quarter commencing after the fiscal quarter ending on January 28,
2024 (and only during such fiscal quarter), if the last reported sale price of the Common Stock for at least 20 trading days (whether
or not consecutive) during a period of 30 consecutive trading days ending on, and including, the last trading day of the immediately
preceding fiscal quarter is greater than or equal to 130% of the conversion price on each applicable trading day; (2) during the five
business day period after any ten consecutive trading day period in which, for each trading day of that period, the Trading Price (as
defined in the Indenture), as determined following a request by a holder of Notes in accordance with the procedures described in the
Indenture, per $1,000 principal amount of Notes for such trading day was less than 98% of the product of the last reported sale price
of the Common Stock and the conversion rate on each such trading day; (3) if the Company calls such Notes for redemption, at any time
prior to the close of business on the second scheduled trading day immediately preceding the redemption date, but only with respect to
the Notes called (or deemed called as provided in the Indenture) for redemption; or (4) upon the occurrence of specified corporate events
described in the Indenture. On or after August 1, 2028 until the close of business on the second scheduled trading day immediately preceding
the maturity date of the Notes, holders of the Notes may convert all or a portion of their Notes, regardless of the foregoing conditions.
Upon conversion, the Notes will be settled in cash up to the aggregate principal amount of the Notes to be converted, and in cash, shares
of Common Stock or any combination thereof, at the Company’s option, in respect of the remainder, if any, of the Company’s
conversion obligation in excess of the aggregate principal amount of the Notes being converted.
The Company may not redeem the Notes prior to November 5, 2026. The Company may redeem for cash
all or any portion of the Notes (subject to the limitation described below), at the Company’s option, on or after November 5, 2026
and before the 41st scheduled trading day immediately preceding the maturity date if the last reported sale price of the Company’s
common stock has been at least 130% of the conversion price then in effect for at least 20 trading days (whether or not consecutive)
during any 30 consecutive trading day period (including the last trading day of such period) ending on, and including, the trading day
immediately preceding the date on which the Company provides the related notice of sale price redemption, at a redemption price equal
to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest to, but excluding, the redemption date.
If the Company redeems less than all the outstanding Notes, at least $75 million aggregate principal amount of Notes must be outstanding
and not subject to redemption as of the relevant redemption notice date. No sinking fund is provided for the Notes.
Upon the
occurrence of a Fundamental Change (as defined in the Indenture) prior to the maturity date of the Notes, holders of the Notes may require
the Company to repurchase all or a portion of the Notes for cash at a price equal to 100% of the principal amount of the Notes to be
repurchased, plus any accrued and unpaid interest to, but excluding, the Fundamental Change Repurchase Date (as defined in the Indenture).
The Notes
are the Company’s senior unsecured obligations and will rank senior in right of payment to any of the Company’s indebtedness
that is expressly subordinated in right of payment to the Notes; equal in right of payment to any of the Company’s unsecured indebtedness
that is not so subordinated (including the Company’s 1.625% Convertible Senior Notes due 2027); effectively junior in right of
payment to any of the Company’s secured indebtedness, including borrowings under the Company’s Credit Agreement (as defined
below), to the extent of the value of the assets securing such indebtedness; and structurally junior to all indebtedness and other liabilities
(including trade payables) of the Company’s subsidiaries that do not guarantee the Notes. The Notes will be jointly and severally
and fully and unconditionally guaranteed by each of the Company’s current and future direct and indirect wholly-owned domestic
subsidiaries (the “Subsidiary Guarantors”) that guarantee its borrowings
under its Third Amended & Restated Credit Agreement dated as of September 26, 2022 among the Company, as borrower, the subsidiaries
of the Company party thereto as guarantors, the lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as administrative
agent, swing line lender and L/C issuer, and the other parties from time to time party thereto, as it may be amended, restated, supplemented
or otherwise modified from time to time (the “Credit Agreement”).
The Indenture
contains customary terms and covenants. If an event of default occurs and is continuing, either the Trustee or the holders of at least
25% in aggregate principal amount of the outstanding Notes may declare 100% of the principal of and accrued and unpaid interest, if any,
on all of the Notes to be due and payable. In case of certain events of bankruptcy, insolvency or reorganization involving the Company
(and not involving solely one or more of the Company’s Significant Subsidiaries (as defined in the Indenture) or the Subsidiary
Guarantors), 100% of the principal of and accrued and unpaid interest on the Notes will automatically become due and payable immediately.
The following events are considered “events of default” with respect to the Notes, which may result in the acceleration of
the maturity of the Notes:
| · | the Company defaults in any payment of interest on the Notes when due and payable and the default continues for a period of 30 days; |
| · | the Company defaults in the payment of principal on the Notes when due and payable at the stated maturity, upon optional redemption,
upon any required repurchase, upon declaration of acceleration or otherwise; |
| · | failure by the Company to comply with its obligation to convert the Notes in accordance with the Indenture upon exercise of a holder’s
conversion right and such failure continues for five business days; |
| · | failure by the Company to issue (i) a Fundamental Change Company Notice (as defined in the Indenture) or a notice of a Make-Whole
Fundamental Change, in either case when due and such failure continues for two business days, or (ii) notice of a specified corporate
transaction when due and such failure continues for five business days; |
| · | failure by the Company to comply with its obligations under the Indenture with respect to consolidation, merger and sale of assets
of the Company; |
| · | failure by the Company to comply with any of its other agreements contained in the Notes or the Indenture for a period of 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; |
| · | default by the Company 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 indebtedness for money borrowed in excess of $20,000,000 (or its
foreign currency equivalent) in the aggregate of the Company and/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
or (ii) constituting a failure to pay the principal or interest of any such indebtedness 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 the Notes
then outstanding; |
| · | certain events of bankruptcy, insolvency or reorganization of the Company or any Significant Subsidiary or any group of Subsidiary
Guarantors that, taken together, would constitute a Significant Subsidiary; and |
| · | except as permitted by the Indenture, any Subsidiary Guarantee (as defined in the Indenture) of a Subsidiary Guarantor that is a Significant
Subsidiary, or Subsidiary Guarantees of any group of Subsidiary Guarantors that, taken together, would constitute a Significant Subsidiary,
shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect,
or a Subsidiary Guarantor that is a Significant Subsidiary, or any group of Subsidiary Guarantors that, taken together, would constitute
a Significant Subsidiary, or any person acting on behalf of any such Subsidiary Guarantor or Subsidiary Guarantors, shall deny or disaffirm
in writing its obligation under its Subsidiary Guarantee. |
The foregoing
description is qualified in its entirety by reference to the text of the Indenture and the Form of 4.00% Convertible Senior Notes due
2028, which are attached as Exhibits 4.1 and 4.2, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information
set forth under Item 1.01 is incorporated herein by reference.
Item 3.02 |
Unregistered Sales of Equity Securities. |
The information
set forth under Item 1.01 with respect to the Notes and the Indenture, and under Item 8.01 with respect to the Investment Agreement,
is incorporated herein by reference.
The Company
issued and sold the Notes to the Purchasers (as defined below) in a private placement that is exempt from
the registration requirements of the Securities Act (as defined below). None of the Notes, the guarantees nor the shares of the
Company’s Common Stock potentially issuable upon conversion of the Notes, if any, have been, or will be, registered under the Securities
Act, the securities laws of any other jurisdiction or any state securities laws and, unless so registered, may not be offered or sold
in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act and applicable
state securities laws. The Notes were offered and sold only to eligible purchasers who are both “qualified institutional buyers”
within the meaning of Rule 144A under the Securities Act and “accredited investors” within the meaning of Rule 501(a) under
the Securities Act, in reliance on Section 4(a)(2) under the Securities Act. The Company does not intend to file a shelf registration
statement for the resale of the Notes or the shares of Common Stock issuable upon conversion of the Notes. A maximum of 15,644,550 shares
of the Company's common stock may be issued upon conversion of the Notes, based on the initial maximum conversion rate of 62.5782 shares
of common stock per $1,000 principal amount of Notes, which is subject to customary anti-dilution adjustment provisions as set forth
in the Indenture.
Investment Agreement
On
October 19, 2023, the Company and the Subsidiary Guarantors entered into an Investment Agreement (the “Investment
Agreement”) with the purchasers named therein (the “Purchasers”),
pursuant to which the Company agreed to issue and sell $250 million aggregate principal amount of the Notes to such Purchasers, in a
private placement that is exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities
Act”). The Investment Agreement includes customary representations, warranties and covenants by the Company and the Subsidiary
Guarantors and customary closing conditions.
Item 9.01 |
Financial Statements and Exhibits. |
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.
|
SEMTECH CORPORATION |
|
|
|
|
Date: October 26, 2023 |
By: |
/s/ Mark Lin |
|
Name: |
Mark Lin |
|
Title: |
Executive Vice President and Chief Financial Officer |
Exhibit 4.1
Execution Version
SEMTECH CORPORATION,
as Issuer
EACH OF THE GUARANTORS
FROM TIME TO TIME PARTY HERETO,
as Subsidiary Guarantors
AND
U.S. Bank Trust Company, National Association,
as Trustee
INDENTURE
Dated as of October 26, 2023
4.00% Convertible
Senior Notes due 2028
TABLE OF CONTENTS
Page
Article 1
Definitions |
Section
1.01. Definitions |
1 |
Section
1.02. References to Interest |
15 |
Article 2
Issue, Description, Execution, Registration and Exchange of Notes |
Section
2.01. Designation and Amount |
15 |
Section
2.02. Form of Notes |
15 |
Section
2.03. Date and Denomination of Notes; Payments of Interest and Defaulted Amounts |
16 |
Section
2.04. Execution, Authentication and Delivery of Notes |
18 |
Section
2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary |
18 |
Section
2.06. Mutilated, Destroyed, Lost or Stolen Notes |
25 |
Section
2.07. Temporary Notes |
26 |
Section
2.08. Cancellation of Notes Paid, Converted, Etc. |
26 |
Section
2.09. CUSIP Numbers |
26 |
Section
2.10. Additional Notes; Repurchases |
26 |
Article 3
Satisfaction and Discharge |
Section
3.01. Satisfaction and Discharge |
27 |
Article 4
Particular Covenants of the Company |
Section
4.01. Payment of Principal and Interest |
28 |
Section
4.02. Maintenance of Office or Agency |
28 |
Section
4.03. Appointments to Fill Vacancies in Trustee’s Office |
29 |
Section
4.04. Provisions as to Paying Agent |
29 |
Section
4.05. Existence |
30 |
Section
4.06. Rule 144A Information Requirement and Annual Reports |
30 |
Section
4.07. Stay, Extension and Usury Laws |
32 |
Section
4.08. Compliance Certificate; Statements as to Defaults |
33 |
Section
4.09. Further Instruments and Acts |
33 |
Article 5
Lists of Holders and Reports by the Company and the Trustee |
Section
5.01. Lists of Holders |
33 |
Section
5.02. Preservation and Disclosure of Lists |
33 |
Article 6
Defaults and Remedies |
Section
6.01. Events of Default |
33 |
Section
6.02. Acceleration; Rescission and Annulment |
35 |
Section
6.03. Additional Interest |
36 |
Section
6.04. Payments of Notes on Default; Suit Therefor |
37 |
Section
6.05. Application of Monies Collected by Trustee |
38 |
Section
6.06. Proceedings by Holders |
39 |
Section
6.07. Proceedings by Trustee |
40 |
Section
6.08. Remedies Cumulative and Continuing |
40 |
Section
6.09. Direction of Proceedings and Waiver of Defaults by Majority of Holders |
41 |
Section
6.10. Notice of Defaults |
41 |
Section
6.11. Undertaking to Pay Costs |
41 |
Article 7
Concerning the Trustee |
Section
7.01. Duties and Responsibilities of Trustee |
42 |
Section
7.02. Reliance on Documents, Opinions, Etc. |
44 |
Section
7.03. No Responsibility for Recitals, Etc. |
45 |
Section
7.04. Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note Registrar May Own Notes |
45 |
Section
7.05. Monies and Shares of Common Stock to Be Held in Trust |
46 |
Section
7.06. Compensation and Expenses of Trustee |
46 |
Section
7.07. Officer’s Certificate as Evidence |
47 |
Section
7.08. Eligibility of Trustee |
47 |
Section
7.09. Resignation or Removal of Trustee |
47 |
Section
7.10. Acceptance by Successor Trustee |
48 |
Section
7.11. Succession by Merger, Etc. |
49 |
Section
7.12. Trustee’s Application for Instructions from the Company |
49 |
Article 8
Concerning the Holders |
Section
8.01. Action by Holders |
50 |
Section
8.02. Proof of Execution by Holders |
50 |
Section
8.03. Who Are Deemed Absolute Owners |
50 |
Section
8.04. Company-Owned Notes Disregarded |
51 |
Section
8.05. Revocation of Consents; Future Holders Bound |
51 |
Article 9
Holders’ Meetings |
Section
9.01. Purpose of Meetings |
51 |
Section
9.02. Call of Meetings by Trustee |
52 |
Section
9.03. Call of Meetings by Company or Holders |
52 |
Section
9.04. Qualifications for Voting |
52 |
Section
9.05. Regulations |
52 |
Section
9.06. Voting |
53 |
Section
9.07. No Delay of Rights by Meeting |
53 |
Article 10
Supplemental Indentures |
Section
10.01. Supplemental Indentures Without Consent of Holders |
54 |
Section
10.02. Supplemental Indentures with Consent of Holders |
55 |
Section
10.03. Effect of Supplemental Indentures |
56 |
Section
10.04. Notation on Notes |
56 |
Section
10.05. Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee |
56 |
Article 11
Consolidation, Merger, Sale, Conveyance and Lease of the Company |
Section
11.01. Company May Consolidate, Etc. on Certain Terms |
57 |
Section
11.02. Successor Corporation to Be Substituted |
57 |
Article 12
Immunity of Incorporators, Stockholders, Officers and Directors |
Section
12.01. Indenture and Notes Solely Corporate Obligations |
58 |
Article 13
Guarantees of Notes |
Section
13.01. Subsidiary Guarantees |
58 |
Section
13.02. Limitation on Subsidiary Guarantor Liability |
60 |
Section
13.03. Execution and Delivery of Subsidiary Guarantee |
60 |
Section
13.04. Consolidation, Merger, Sale, Conveyance and Lease of the Subsidiary Guarantors |
60 |
Section
13.05. Releases |
62 |
Section
13.06. Additional Note Guarantees |
62 |
Article 14
Conversion of Notes |
Section
14.01. Conversion Privilege |
62 |
Section
14.02. Conversion Procedure; Settlement Upon Conversion |
66 |
Section
14.03. Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes
or a Notice of Redemption |
70 |
Section
14.04. Adjustment of Conversion Rate |
72 |
Section
14.05. Adjustments of Prices |
81 |
Section
14.06. Shares to Be Fully Paid |
81 |
Section
14.07. Effect of Recapitalizations, Reclassifications and Changes of the Common Stock |
81 |
Section
14.08. Certain Covenants |
83 |
Section
14.09. Responsibility of Trustee |
84 |
Section
14.10. Notice to Holders Prior to Certain Actions |
84 |
Section
14.11. Stockholder Rights Plans |
85 |
Section
14.12. Exchange in Lieu of Conversion |
85 |
Article 15
Repurchase of Notes at Option of Holders |
Section
15.01. [Intentionally Omitted] |
86 |
Section
15.02. Repurchase at Option of Holders Upon a Fundamental Change |
86 |
Section
15.03. Withdrawal of Fundamental Change Repurchase Notice |
89 |
Section
15.04. Deposit of Fundamental Change Repurchase Price |
90 |
Section
15.05. Covenant to Comply with Applicable Laws Upon Repurchase of Notes |
90 |
Article 16
Optional Redemption |
Section
16.01. [Reserved] |
91 |
Section
16.02. Optional Redemption on or after November 5, 2026 |
91 |
Section
16.03. Notice of Redemption; Selection of Notes |
91 |
Section
16.04. Payment of Notes Called for Redemption |
93 |
Section
16.05. Restrictions on Redemption |
93 |
Article 17
Miscellaneous Provisions |
Section
17.01. Provisions Binding on Company’s Successors |
93 |
Section
17.02. Official Acts by Successor |
93 |
Section
17.03. Addresses for Notices, Etc. |
93 |
Section
17.04. Governing Law; Jurisdiction |
94 |
Section
17.05. Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee |
95 |
Section
17.06. Legal Holidays |
95 |
Section
17.07. No Security Interest Created |
95 |
Section
17.08. Benefits of Indenture |
96 |
Section
17.09. Table of Contents, Headings, Etc. |
96 |
Section
17.10. Authenticating Agent |
96 |
Section
17.11. Execution in Counterparts |
97 |
Section
17.12. Severability |
97 |
Section
17.13. Waiver of Jury Trial |
97 |
Section
17.14. Force Majeure |
97 |
Section
17.15. Calculations |
97 |
Section
17.16. USA PATRIOT Act |
98 |
Section
17.17. Electronic Signatures |
98 |
EXHIBIT
Exhibit A |
Form of Note |
A-1 |
|
|
|
Exhibit B |
Form of Supplemental Indenture to be Delivered by Subsequent Guarantors |
B-1 |
INDENTURE dated
as of October 26, 2023 among SEMTECH CORPORATION, a Delaware corporation, as issuer (the “Company,” as more fully
set forth in Section 1.01), the Subsidiary Guarantors (as defined in Section 1.01), as guarantors hereunder, and U.S. Bank Trust
Company, National Association, a national banking association organized under the laws of the United States, 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 4.00% Convertible Senior Notes due 2028 (the “Notes”),
initially in an aggregate principal amount not to exceed $250,000,000, 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; and
WHEREAS, the Subsidiary
Guarantors have duly authorized the execution and delivery of this Indenture and the Subsidiary Guarantees hereunder; and
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 Subsidiary 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.
“1% Exception”
shall have the meaning specified in Section 14.04(j).
“Additional
Interest” means all amounts, if any, payable pursuant to Section 4.06(d), Section 4.06(e) 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. For the purposes of this definition, “control,” when used with respect to any specified
Person means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing. 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.
“Bid Solicitation
Agent” means the Company or the Person appointed by the Company to solicit bids for the Trading Price of the Notes in accordance
with Section 14.01(b)(i). The Company shall initially act as the Bid Solicitation Agent.
“Board
of Directors” means the board of directors of the Company or a committee of such board duly authorized to act for it hereunder,
or with respect to the relevant corporate action or determination specified herein, as the case may be.
“Board
Resolution” means a copy of a resolution or minutes of a meeting of the Board of Directors 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, and delivered to the Trustee.
“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 is authorized or required by law or executive order to close or be closed.
“Called
Notes” means Notes called for redemption pursuant to Article 16 or subject to a Deemed 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.
“Cash Percentage”
shall have the meaning specified in Section 14.02(a)(iii).
“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).
“Commission”
means the U.S. Securities and Exchange Commission.
“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 $0.01 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.
“Conversion
Agent” shall have the meaning specified in Section 4.02.
“Conversion
Consideration” shall have the meaning specified in Section 14.12(a).
“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
Event” shall have the meaning specified in Section 14.01(b)(iii).
“Corporate
Trust Office” means the designated office of the Trustee at which at any time this Indenture shall be administered, which office
at the date hereof is located at U.S. Bank Trust Company, National Association, 633 West Fifth Street, 24th Floor, Los Angeles, CA 90071,
Attention: B. Scarbrough (Semtech Corporation), 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).
“Credit
Agreement” means the Third Amended and Restated Credit Agreement dated as of September 26, 2022, among the Company, as borrower,
the subsidiaries of the Company party
thereto as guarantors,
the lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as administrative agent, swing line lender and L/C issuer, and
the other parties from time to time party thereto, as it may be amended, restated, supplemented or otherwise modified from time to time.
“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 40 consecutive Trading Days during the relevant Observation Period, one-fortieth 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 $1,000 divided by 40.
“Daily
Net Settlement Amount” means, for each of the 40 consecutive Trading Days during the relevant Observation Period:
(a) if
the Company does not elect a Cash Percentage or the Company elects (or is deemed to have elected) a Cash Percentage of 0% as set forth
herein, a number of shares of the 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;
(b) if
the Company elects a Cash Percentage of 100% as set forth herein, cash in an amount equal to the difference between the Daily Conversion
Value and the Daily Measurement Value; or
(c) if
the Company elects a Cash Percentage of less than 100% but greater than 0% as set forth herein, (i) cash equal to the product of (x)
the difference between the Daily Conversion Value and the Daily Measurement Value and (y) the Cash Percentage, plus (ii) a number
of shares of the Common Stock equal to the product of (x) (A) the difference between the Daily Conversion Value and the Daily Measurement
Value, divided by (B) the Daily VWAP for such Trading Day and (y) 100% minus the Cash Percentage.
“Daily
Settlement Amount,” for each of the 40 consecutive Trading Days during the relevant Observation Period, shall consist of:
(a) cash
equal to the lesser of (i) the Daily Measurement Value and (ii) the Daily Conversion Value on such Trading Day; and
(b) if
the Daily Conversion Value on such Trading Day exceeds the Daily Measurement Value, the Daily Net Settlement Amount.
“Daily
VWAP” means, for any Trading Day, the per share volume-weighted average price as displayed under the heading “Bloomberg
VWAP” on Bloomberg page “SMTC <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 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.
“Deemed
Redemption” shall have the meaning specified in Section 14.01(b)(v).
“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.
“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.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange
Election” shall have the meaning specified in Section 14.12(a).
“Exempted
Fundamental Change” shall have the meaning specified in Section 15.02(f).
“Form of
Assignment and Transfer” means the “Form of Assignment and Transfer” attached as Attachment 3 to the Form of Note
attached hereto as Exhibit A.
“Form of
Fundamental Change Repurchase Notice” means the “Form of Fundamental Change Repurchase Notice” attached as Attachment
2 to the Form of Note attached hereto as Exhibit A.
“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 attached
hereto as Exhibit A.
“Fundamental
Change” shall be deemed to have occurred at the time after the Notes are originally issued if any of the following occurs:
(a) except
in connection with transactions described in clause (b) below, a “person” or “group” within the meaning of Section
13(d) of the Exchange Act, other than the Company, its direct or indirect Wholly Owned Subsidiaries and the employee benefit plans of
the Company and its Wholly Owned Subsidiaries, has become and 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 the Common Stock representing
more than 50% of the voting power of the Common Stock, unless such beneficial ownership arises solely as a result of a revocable proxy
delivered in response to a public proxy or consent solicitation made pursuant to the applicable rules and regulations under the Exchange
Act and is not also then reportable on Schedule 13D or Schedule 13G (or any successor schedule) under the Exchange Act regardless of
whether such a filing has actually been made; provided that no “person” or “group” shall be deemed to
be the beneficial owner of any securities tendered pursuant to a tender or exchange offer made by or on behalf of such “person”
or “group” until such tendered securities are accepted for purchase or exchange under such offer;
(b) the
consummation of (A) 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) 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 stock 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 shares of common
stock 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)). In addition, it shall not constitute a Fundamental Change pursuant to clause (d) above if (x) the Common Stock (or other common
stock 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) solely after the close of the regular trading session on any Scheduled Trading
Day and (y) the Common Stock (or other common stock underlying the Notes) is re-listed or re-quoted on one of The New York Stock Exchange,
the Nasdaq Global Select Market or the Nasdaq Global Market (or any of their respective successors) prior to open of the regular trading
session on the immediately succeeding Scheduled Trading Day. If any transaction in which the Common Stock is replaced by the common stock
or other Common Equity 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 and references to the Company’s Common Stock shall instead be references to any Common
Equity (or American depositary receipts (or other interests) in respect thereof) underlying the Notes.
“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).
The terms “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.
“Global
Note” shall have the meaning specified in Section 2.05(b).
“Holder,”
as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), means any Person in whose name
at the time a particular Note is registered on the Note Register.
“Indenture”
means this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented.
“Interest
Payment Date” means each May 1 and November 1 of each year, beginning on May 1, 2024.
“last date
of original issuance” means (a) with respect to any Notes originally issued during the thirteen (13) calendar day period from,
and including, the first date on which the Notes are issued, and any Notes issued in exchange therefor or in substitution thereof, the
latest date on which the Company first issues such Notes; and (b) with respect to any additional 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 pursuant to the exercise of an option (if any)
granted to the initial purchasers of such Notes to purchase additional Notes; or (ii) such other date as is specified in an Officer’s
Certificate delivered to the Trustee before the original issuance of such Notes.
“Last Reported
Sale Price” of the 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.
“Legend
Removal Deadline Date” shall have the meaning specified in Section 4.06(e).
“LLC Division”
means the division of a limited liability company into two or more limited liability companies, with the dividing company continuing
or terminating its existence as a result, whether pursuant to the laws of any applicable jurisdiction or otherwise (including, without
limitation, any “plan of division” under Section 18-217 of the Delaware Limited Liability Company Act or any similar statute
or provision under applicable law or otherwise).
“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).
“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.
“Maturity
Date” means November 1, 2028.
“Measurement
Period” shall have the meaning specified in Section 14.01(b)(i).
“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 Redemption” shall have the meaning specified in Section 16.03(a).
“Observation
Period” with respect to any Note surrendered for conversion means: (i) subject to clause (ii), if the relevant Conversion Date
occurs prior to August 1, 2028, the 40 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 during the related Redemption
Period, the 40 consecutive Trading Days beginning on, and including, the 41st Scheduled Trading Day immediately preceding such Redemption
Date; and (iii) subject to clause (ii), if the relevant Conversion Date occurs on or after August 1, 2028, the 40 consecutive Trading
Days beginning on, and including, the 41st Scheduled Trading Day immediately preceding the Maturity Date.
“Officer”
means, with respect to the Company or any Subsidiary Guarantor, the chief executive officer, the president, the chief financial officer,
any executive vice president, any senior vice president, the general counsel, the chief legal officer, any assistant general counsel,
the corporate controller, the secretary, any assistant secretary, the treasurer and any assistant treasurer (or any other individual
designated as an “Officer” for the purposes of this Indenture by the Board of Directors, the sole member or the sole manager
(as applicable), or by the president, chief executive officer, chief financial officer, executive vice president, corporate controller
or chief legal officer, of the Company or such Subsidiary Guarantor, as applicable) (a) of such Person or (b) if such Person is owned
or managed by a single entity, of such entity.
“Officer’s
Certificate,” when used with respect to the Company or any Subsidiary Guarantor, means a certificate that is delivered to the
Trustee and that is signed by any Officer of the Company or such Subsidiary Guarantor, as the case may be. 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, legal or accounting
officer (including, without limitation, the Corporate Controller) 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.
“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 the second paragraph of 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
surrendered for purchase in accordance with Article 15 for which the Paying Agent holds money sufficient to pay the Fundamental
Change Repurchase Price, in accordance with Section 15.04(b);
(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.
“Partial
Redemption Limitation” shall have the meaning specified in Section 16.02.
“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 in excess thereof.
“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.
“Redemption
Date” shall have the meaning specified in Section 16.03(a).
“Redemption
Period” means, with respect to any Optional Redemption, the period from, and including, the date on which the Company delivers
a Notice of Redemption for such Optional Redemption until the close of business on the second Scheduled Trading Day immediately preceding
the related Redemption Date (or, if the Company defaults in the payment of the Redemption Price, until the close of business on the Scheduled
Trading Day immediately preceding the date on which the Redemption Price has been paid or duly provided for).
“Redemption
Price” means, with respect to 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, but excluding, 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 on, or at
the Company’s election, before, such Interest Payment 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).
“Regular
Record Date,” with respect to any Interest Payment Date, means the April 15 or October 15 (whether or not such day is a Business
Day) immediately preceding the applicable May 1 or November 1 Interest Payment Date, respectively.
“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
who customarily performs functions similar to those performed by the persons who at the time shall be such officers, respectively, or
to whom any corporate trust matter relating to this Indenture is referred because of such person’s knowledge of and familiarity
with the particular subject and who, in each case, 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.
“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
Notice” has the meaning specified in Section 14.02(a)(iii).
“Share
Exchange Event” shall have the meaning specified in Section 14.07(a).
“Significant
Subsidiary” means a Subsidiary of the Company that is a “significant subsidiary” as defined in Article 1,
Rule 1-02(w) of Regulation S-X promulgated by the
Commission; provided
that, in the case of a Subsidiary of the Company that meets the criteria of clause 1(iii) of the definition thereof but not clause
1(i) or 1(ii) thereof, in each case as such rule is in effect on the issue date, such Subsidiary shall not be deemed to be a Significant
Subsidiary unless the Subsidiary’s income from continuing operations before income taxes exclusive of amounts attributable to any
non-controlling interests for the last completed fiscal year prior to the date of such determination exceeds $20,000,000. For the avoidance
of doubt, to the extent any such Subsidiary would not be deemed to be a “significant subsidiary” under the relevant definition
set forth in Article 1, Rule 1-02(w) of Regulation S-X (or any successor rule) as in effect on the relevant date of determination,
such Subsidiary shall not be deemed to be a “Significant Subsidiary” under this Indenture irrespective of whether such Subsidiary
has greater than $20,000,000 in income from continuing operations as described in the immediately preceding sentence.
“Spin-Off”
shall have the meaning specified in Section 14.04(c).
“Stock
Price” shall have the meaning specified in Section 14.03(c).
“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.
“Subsidiary
Guarantee” means each guarantee by a Subsidiary Guarantor of the Company’s obligations under this Indenture and the Notes,
pursuant to Article 13 of this Indenture.
“Subsidiary
Guarantors” means:
(a) each
of the Company’s direct and indirect domestic Wholly Owned Subsidiaries existing on the date of this Indenture that guarantees
the Company’s borrowings under the Credit Agreement; and
(b) any other
direct or indirect domestic Wholly Owned Subsidiary of the Company that becomes a Subsidiary Guarantor pursuant to Section 13.06 of this
Indenture, and their respective successors and assigns;
in each case, until
the Subsidiary Guarantee of such Person has been released in accordance with the provisions of this Indenture.
“Successor
Company” shall have the meaning specified in Section 11.01(a).
“Successor
Subsidiary Guarantor” shall have the meaning specified in Section 13.04(a)(i).
“Trading
Day” means, except for determining amounts due upon conversion, 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 Nasdaq Global Select Market or, if the Common Stock (or such
other security) is not then listed on The Nasdaq Global Select Market, on the principal other U.S. national or regional securities exchange
on which the Common Stock (or such other security) is then listed 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 Nasdaq Global Select Market or, if the Common Stock is not then listed on The Nasdaq Global Select
Market, on the principal other U.S. national or regional securities exchange on which the Common Stock 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.
“Trading
Price” of the Notes on any date of determination means the average of the secondary market bid quotations obtained by the Bid
Solicitation Agent for $5,000,000 principal amount of Notes at approximately 3:30 p.m., New York City time, on such determination date
from three independent nationally recognized securities dealers the Company selects for this purpose; provided that if three such
bids cannot reasonably be obtained by the Bid Solicitation Agent but two such bids are obtained, then the average of the two bids shall
be used, and if only one such bid can reasonably be obtained by the Bid Solicitation Agent, that one bid shall be used. If, on any determination
date, the Bid Solicitation Agent cannot reasonably obtain at least one bid for $5,000,000 principal amount of Notes from a nationally
recognized securities dealer, then the Trading Price per $1,000 principal amount of Notes on such determination date shall be deemed
to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate.
“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.
“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 if, in such context, Additional Interest is, was or would be payable pursuant to any of Section
4.06(d), Section 4.06(e) and Section 6.03. Unless the context otherwise requires, any express mention of Additional Interest
in any provision hereof shall not be construed as excluding Additional 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 “4.00% Convertible Senior Notes due 2028.” The aggregate principal amount
of Notes that may be authenticated and delivered under this Indenture is initially limited to $250,000,000, 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 Subsidiary 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.
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. (a) 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. 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 maintained 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.
(c) Any
Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant payment date but shall accrue interest per annum
at the rate borne by the Notes, 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 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, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount of the Defaulted Amounts 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 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 as in this clause provided. Thereupon the Company shall fix a special record date for the payment
of such Defaulted Amounts 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 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 the special record date therefor having been so delivered, such Defaulted Amounts 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 the following clause (ii) of this Section 2.03(c).
(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.
(iii) The
Trustee shall not at any time be under any duty or responsibility to any Holder of Notes to determine the Defaulted Amounts, or with
respect to the nature, extent, or calculation of the amount of Defaulted Amounts owed, or with respect to the method employed in such
calculation of the Defaulted Amounts.
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, facsimile
or other electronic signature of its Chief Executive Officer, President, Chief Financial Officer, Treasurer, Chief Legal Officer, Assistant
General Counsel, Corporate Controller or Secretary.
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 (such Company Order to include the terms of the Notes) 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 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 attached as Exhibit A hereto,
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.
(a) 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, upon receipt of a Company Order, 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.
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, 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 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 required repurchase upon a Fundamental Change (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.
(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.
(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 set forth below), unless such restrictions on transfer shall be eliminated or otherwise waived by written consent of the
Company, and the Holder of each such Restricted Security, by such 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 date that is one year after the last date of original
issuance 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 SEMTECH CORPORATION (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 ISSUE 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 AND IS EFFECTIVE AT THE TIME OF SUCH TRANSFER, OR
(C) TO
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 FOR THE COMPANY 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 required by this Section 2.05(c)
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 specified in this Section 2.05(c) and shall not be assigned a restricted CUSIP
number. The Company shall promptly notify the Trustee in writing upon the occurrence of the Resale Restriction Termination Date and promptly
after a registration statement, if any, with respect to the Notes or any Common Stock issued upon conversion of the Notes has been declared
effective under the Securities Act.
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 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 in writing. Upon
execution and authentication, the Trustee shall deliver such Physical Notes to the Persons in whose names such Physical Notes are so
registered.
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 (including in its capacity as Paying Agent) 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.
(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 SEMTECH CORPORATION (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 ISSUE 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:
(A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT AND IS EFFECTIVE AT THE TIME OF SUCH TRANSFER, OR
(C) TO
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.
(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 its written request 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, claim, liability, cost or expense caused by or connected with such substitution, and, in
every case of destruction, loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent evidence to their satisfaction of the destruction, loss or theft of such 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, claim, liability,
cost 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.
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 written request of the Company, 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 the Company, any of its agents that it controls or its Subsidiaries, to be surrendered to the Trustee for cancellation.
All Notes delivered to the Trustee shall be canceled promptly by it in accordance with its customary procedures. Except for any Notes
surrendered for registration of transfer or exchange, or as otherwise expressly permitted by any of the provisions of this Indenture,
no Notes shall be authenticated in exchange for any Notes surrendered to the Trustee for cancellation. The Trustee shall dispose of canceled
Notes in accordance with its customary procedures and, after such disposition, shall deliver evidence 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.
Section 2.10. Additional
Notes; Repurchases. The Company may, without the consent of, or notice to, the Holders and notwithstanding Section 2.01, 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. 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,
the Company may, directly or indirectly (regardless of whether such Notes are surrendered to the Company), repurchase Notes in the open
market or otherwise, whether by the Company or its Subsidiaries or through a privately negotiated transaction or public tender or exchange
offer or through counterparties to private agreements, including by cash-settled swaps or other derivatives, in each case, without the
consent of or notice to the Holders of the Notes. The Company may, at its option, reissue, resell or surrender to the Trustee for cancellation
any Notes that it repurchases, in the case of a reissuance or resale, so long as such Notes do not constitute “restricted securities”
(as defined under Rule 144) upon such reissuance or resale; provided that if any such reissued or resold Notes are not fungible
with the Notes initially issued hereunder for U.S. federal income tax or securities law purposes, such reissued or resold Notes shall
have one or more separate CUSIP numbers. Any Notes that the Company may repurchase (other than in connection with a Fundamental Change
or upon redemption) shall be considered outstanding for all purposes under this Indenture (other than, at any time when such Notes are
owned by the Company, by any Subsidiary thereof or by any Affiliate of the Company or any Subsidiary thereof, as set forth in Section
8.04) unless and until such time as the Company surrenders them to the Trustee for cancellation and, upon receipt of a Company Order,
the Trustee shall cancel all 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 deposited with the Trustee, or, in the case of shares of Common Stock to satisfy
conversions, the transfer agent for the Common Stock, 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
in the case of conversion, cash and shares of Common Stock, if 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 or the earlier resignation or removal of the
Trustee, the obligations of the Company to the Trustee under Section 7.06 shall survive.
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.
Any applicable withholding
taxes (including backup withholding) that are paid on behalf of a Holder or beneficial owner may be withheld from interest payments and
payments received upon conversion, repurchase, redemption or maturity of the Notes or any payments on the Common Stock or sales proceeds
received by, or other funds or assets of, the Holder or beneficial owner.
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 no office of the Trustee shall 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;
(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.
(d) Subject
to applicable escheatment laws, any money and shares of Common Stock deposited with the Trustee 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 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.
(e) Upon
any Event of Default pursuant to Section 6.01(h) or (i) with respect to the Company, the Trustee shall automatically be Paying Agent
for the Notes.
Section 4.05. Existence.
Subject to Article 11, the Company 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 not be responsible
for determining whether such filings have been made.
(c) Delivery
of the reports, information and documents described in subsection (b) above 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).
(d) If,
at any time during the six-month period beginning on, and including, the date that is six months after the last date of original issuance
of the 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 pursuant to Rule 144 by Holders other than the Company’s Affiliates
or Holders that were the Company’s Affiliates at any time during the three months immediately preceding (as a result of restrictions
pursuant to U.S. securities laws or the terms of this Indenture or the Notes), the Company shall pay Additional Interest on the Notes.
Such Additional Interest shall accrue on the Notes (i) at the rate of 0.25% per annum for the principal amount of the Notes outstanding
for each day during the first 90 days of such period for which the Company’s failure to file has occurred and is continuing or
the Notes are not otherwise freely tradable pursuant to Rule 144 by Holders other than the Company’s Affiliates (or Holders that
were the Company’s Affiliates at any time during the three months immediately preceding) and (ii) at the rate of 0.50% per annum
of the principal amount of the Notes outstanding for each day after the 90th day of such period for which the Company’s failure
to file has occurred and is continuing or the Notes are not otherwise freely tradable pursuant to Rule 144 by Holders other than the
Company’s Affiliates (or Holders that were the Company’s Affiliates at any time during the three months immediately preceding)
without restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Notes. As used in this Section 4.06(d),
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. For purposes of this Section 4.06(d), the phrase “restrictions pursuant to U.S. securities laws or the terms of this
Indenture or the Notes” shall not include, for the avoidance of doubt, the assignment of a restricted CUSIP number or the existence
of the Restrictive Notes Legend on Notes in compliance with Section 2.05(c), in either case, during the six-month period described
in this Section 4.06(d).
(e) 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 pursuant to Rule 144 by Holders other than the Company’s
Affiliates or Holders that were the Company’s Affiliates at any time during the three months immediately preceding (without restrictions
pursuant to U.S. securities laws or the terms of this Indenture or the Notes) as of the 380th day after the last date of original issuance
of the Notes (the “Legend Removal Deadline Date”), the Company shall pay Additional Interest on the Notes (i) at a
rate equal to 0.25% per annum of the principal amount of Notes outstanding for each day during the period beginning on, and including,
the Legend Removal Deadline Date and ending on the earlier of (x) the 90th day immediately following the Legend Removal Deadline Date
and (y) the date on which the Restrictive Notes Legend has been removed from the Notes, the Notes are assigned an unrestricted CUSIP
number and the Notes are freely tradable pursuant
to Rule 144 by Holders
other than the Company’s Affiliates (or Holders that were the Company’s Affiliates at any time during the three months immediately
preceding) and (ii) at a rate equal to 0.50% per annum of the principal amount of Notes outstanding for each day during the period beginning
on, and including, the 91st day immediately following the Legend Removal Deadline Date and ending on the date on which 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 pursuant to Rule 144 by Holders other than the Company’s Affiliates (or Holders that were the
Company’s Affiliates at any time during the three months immediately preceding) without restrictions pursuant to U.S. securities
laws or the terms of this Indenture or the Notes.
(f) Additional
Interest will be payable in arrears on each Interest Payment Date following accrual in the same manner as regular interest on the Notes.
(g) Subject
to the immediately succeeding sentence, the Additional Interest that is payable in accordance with Section 4.06(d) or Section
4.06(e) shall be in addition to, and not in lieu of, any Additional Interest that may be payable as a result of the Company’s election
pursuant to Section 6.03. However, in no event shall Additional Interest payable for 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(d), together with any Additional Interest that may accrue at the Company’s election
as a result of the Company’s failure to comply with its reporting obligations pursuant to Section 6.03, 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 is payable by the Company pursuant to Section 4.06(d) or Section 4.06(e), the Company shall deliver to
the Trustee an Officer’s Certificate to that effect stating (i) the amount of such Additional Interest that is payable and (ii)
the date on which such Additional Interest is payable. Unless and until a Responsible Officer of the Trustee receives at the Corporate
Trust Office such Officer’s Certificate, the Trustee may conclusively assume without inquiry that no such Additional Interest is
payable. If the Company has paid Additional Interest directly to the Persons entitled to it, the Company shall deliver to the Trustee
an Officer’s Certificate setting forth the particulars of such payment.
Section 4.07. Stay,
Extension and Usury Laws. The Company and each of the Subsidiary 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 Subsidiary 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 Subsidiary 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 power herein granted to the Trustee, but will suffer and permit the execution of every such power
as though no such law had been enacted.
Section 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 January 28, 2024) an Officer’s Certificate stating whether the signers
thereof have knowledge of any Event of Default that occurred during the previous year and, if so, specifying each such Event of 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 Event of Default or
Default, an Officer’s Certificate setting forth the details of such Event of Default or 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 notice
if such Event of Default or Default has been cured or is no longer continuing.
Section 4.09. Further
Instruments and Acts. Upon request of the Trustee, the Company and/or any Subsidiary 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.
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 after each April 15 and October 15 in each year beginning with April 15, 2024, 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 dispose of any list furnished to it as provided in Section
5.01 upon receipt of a new list so furnished.
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 five Business Days;
(d) failure
by the Company to issue (i) a Fundamental Change Company Notice in accordance with Section 15.02(c) or notice of a Make-Whole Fundamental
Change in accordance with Section 14.03(b), in either case when due and such failure continues for two Business Days, or (ii) notice
of a specified corporate event in accordance with Section 14.01(b)(ii) or 14.01(b)(iii) when due and such failure continues
for five Business Days;
(e) failure
by the Company to comply with its obligations under Article 11;
(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 or any Significant Subsidiary of the Company 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 indebtedness for money borrowed in excess of $20,000,000 (or its
foreign currency equivalent) in the aggregate of the Company and/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;
(h) the
Company, any Significant Subsidiary or any group of Subsidiary Guarantors that, taken together, would constitute a Significant Subsidiary,
shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company,
such Significant Subsidiary or such group of Subsidiary Guarantors or its 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, such Significant Subsidiary or such group of Subsidiary Guarantors or any substantial part of its 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 shall make a general assignment for the benefit
of creditors; or
(i) an
involuntary case or other proceeding shall be commenced against the Company, any Significant Subsidiary or any group of Subsidiary Guarantors
that, taken together, would constitute a Significant Subsidiary, seeking liquidation, reorganization or other relief with respect to
the Company, such Significant Subsidiary or such group of Subsidiary Guarantors or its 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, such Significant Subsidiary or such group of Subsidiary Guarantors or any substantial part of its respective
property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 30 consecutive days; or
(j) except
as permitted by this Indenture, any Subsidiary Guarantee of a Subsidiary Guarantor that is a Significant Subsidiary, or the Subsidiary
Guarantees of any group of Subsidiary Guarantors that, taken together, would constitute a Significant Subsidiary shall be held in any
judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect, or any Subsidiary Guarantor
that is a Significant Subsidiary, or any group of Subsidiary Guarantors that, taken together, would constitute a Significant Subsidiary,
or any Person acting on behalf of any such Subsidiary Guarantor or Subsidiary Guarantors, shall deny or disaffirm in writing its obligation
under its Subsidiary Guarantee.
Section 6.02. Acceleration;
Rescission and Annulment. If one or more Events of Default shall have occurred and be continuing, 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), unless the
principal of, and accrued and unpaid interest, if any, on 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, if any, on, all the 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. If an Event of Default specified in Section 6.01(h) or Section 6.01(i) with respect to the Company 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.
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 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 (including, without limitation, consents obtained in connection with a
repurchase of, or
tender or exchange offer for, Notes), 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 or (iii)
a failure to pay or deliver, as the case may be, the consideration due upon conversion of the Notes.
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)
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 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
from the 181st day to, and including, the 365th day following the occurrence of such Event of Default, in each case, as long as such
Event of Default is continuing. For the avoidance of doubt, the 365-day period shall not commence until the expiration of the 60-day
period specified in Section 6.01(f). 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(d) or
Section 4.06(e). 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 the Event of Default relating to the Company’s
failure to comply with its obligations as set forth in Section 4.06(b) 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 the Company’s failure to comply with its
obligations as set forth in Section 4.06(b). 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.
In order to elect
to pay Additional Interest as the sole remedy during the first 365 days after the occurrence of any Event of Default relating to the
Company’s failure to comply with its obligations as set forth in Section 4.06(b) in accordance with the immediately preceding
paragraph, the Company must notify all Holders of the Notes, the Trustee and the Paying Agent (if other than the Trustee) in writing
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 for failure to comply with its obligations as set forth in Section 4.06(b)
as set forth in this Section 6.03, 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 thereunder and other than reports on Form 8-K), pursuant
to Section 4.06(d), 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 rate borne by the Notes 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.
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, 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 expenses,
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.
Section 6.05. Application
of Monies Collected by Trustee. Any monies or property 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 in all of its capacities under this Indenture;
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 rate borne by the Notes 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 rate borne by the Notes 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, and if requested, provided to the Trustee such security or indemnity reasonably satisfactory to it against
any loss, claim, liability or expense to be incurred therein or thereby;
(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 such Holder), or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable
and common benefit of all Holders (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, 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, 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.
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.
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 and that is not inconsistent with such direction. The Trustee
may refuse to follow any direction that it determines is unduly prejudicial to the rights of any other Holder or that would involve the
Trustee in personal liability (it being understood that the Trustee does not have an affirmative duty to determine whether any action
is prejudicial to any Holder). The Holders of a majority in aggregate principal amount of the Notes at the time outstanding determined
in accordance with Section 8.04 (including, without limitation, consents obtained in connection with a repurchase of, or tender
or exchange offer for, Notes) 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. If a Default occurs and is continuing and is actually known to a Responsible Officer, the Trustee shall deliver to all
Holders notice of the Default upon the later of (x) within 90 days after it occurs, if actually known to a Responsible Officer, and (y)
promptly after a Responsible Officer obtains knowledge thereof, unless such Default 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 may withhold (and shall be protected in so withholding) such
notice if and so long as it determines that the withholding of such notice is in the interests of the Holders.
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.
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, 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, claim, 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 and willful misconduct on the part of the Trustee, 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);
(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;
(g) the
Trustee shall not be required to give any bond or surety in respect of the execution of the trusts and powers under this Indenture;
(h) 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, fees, taxes or other charges 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
(i) in
the event that the Trustee is also acting as Custodian, Note Registrar, Paying Agent, Conversion Agent, Bid Solicitation 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, Bid Solicitation Agent or transfer agent.
None of the provisions
contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability
in the performance of any of its duties or in the exercise of any of its rights or powers.
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, judgment, 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;
(b) any
request, direction, order or demand of the Company or any Subsidiary 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, 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, judgment, 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 for any 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 and/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
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 or set forth herein as a result of any inaccuracy or incompleteness;
(j) the
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person
employed to act hereunder;
(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, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(l) in
no event shall the Trustee be liable for any special, indirect, punitive, incidental 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; and
(m) 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 received by a Responsible Officer of the Trustee from the Company or from any Holder.
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 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, Bid Solicitation Agent or Note Registrar May Own Notes. The Trustee, any Paying Agent, any Conversion
Agent, Bid
Solicitation Agent
(if other than the Company or any Affiliate thereof) 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, Bid Solicitation 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.
Section 7.06. Compensation
and Expenses of Trustee. The Company covenants and agrees to pay to the Trustee 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 and disbursements 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 determined by a final order of a court
of competent jurisdiction. The Company also 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 agents and any authenticating agent for,
and to hold them harmless against, any loss, claim, damage, liability or expense incurred without gross negligence or willful misconduct
on the part of the Trustee, its officers, directors, agents or employees, or such agent or authenticating agent, as the case may be,
as determined by a final order of a court of competent jurisdiction, and arising out of or in connection with the acceptance or administration
of this Indenture or in any other capacity hereunder and the enforcement of this Indenture (including this Section 7.06), including
the costs and expenses of defending themselves against any claim of liability in the premises. The obligations of the Company 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.
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 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.
Section 7.07. Officer’s
Certificate 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, be deemed to be conclusively proved and established by an Officer’s Certificate
delivered to the Trustee, and such Officer’s Certificate, in the absence of gross negligence, willful misconduct on the part of
the Trustee, 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 promptly in the manner and with the effect hereinafter specified in
this Article.
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 and by
delivering notice thereof to the Holders. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee
by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment
within 45 days after the giving of such notice of resignation to the Holders, the resigning Trustee may 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
(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 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 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 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 claim 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.
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 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 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 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 and/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 any Officer
that the Company has indicated to the Trustee should receive such application actually receives such application, unless any such Officer
shall have consented in writing to any earlier date), unless, prior to taking any such action (or the effective date in the case of 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.
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 nor incur any liability 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.
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
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.
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.
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.
Article
10
Supplemental Indentures
Section 10.01. Supplemental
Indentures Without Consent of Holders. The Company, the Subsidiary 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, mistake, omission, defect or inconsistency;
(b) to
provide for the assumption by a Successor Company of the obligations of the Company under this Indenture pursuant to Article 11
or for the assumption by a Successor Subsidiary Guarantor of the obligations of any Subsidiary Guarantor under this Indenture pursuant
to Section 13.04;
(c) to
add additional guarantees with respect to the Notes;
(d) to
secure the Notes or the Subsidiary Guarantees;
(e) to
add to the Company’s or a Subsidiary Guarantor’s covenants or Events of Default for the benefit of the Holders or surrender
any right or power conferred upon the Company or any Subsidiary Guarantor;
(f) to
make any change that does not adversely affect the rights of any Holder as determined by the Company in good faith;
(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) [Reserved.];
(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 in any material respect;
(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 issuance of Additional Notes in accordance with Section 2.10;
(m) to
provide for the acceptance of appointment by a successor Trustee, Note Registrar, Paying Agent, Bid Solicitation Agent or Conversion
Agent to facilitate the administration of the trusts under this Indenture by more than one trustee; or
(n) to
eliminate any Subsidiary Guarantee in accordance with, and to the extent permitted by, this Indenture.
Upon the written
request of the Company, any Subsidiary Guarantor and 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,
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 Subsidiary Guarantors (if any)
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 Subsidiary
Guarantor (if any) 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:
(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, or at a place of payment, other than that stated in the Note;
(g) change
the ranking of the Notes or the Subsidiary 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 Subsidiary Guarantees that would adversely affect the Holders in any material respect (unless otherwise permitted pursuant
to this Indenture); or
(j) other
than in accordance with the provisions of this Indenture, eliminate any Subsidiary 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 and the Subsidiary Guarantors (if any) shall join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
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 a notice
briefly describing such supplemental indenture. However, the failure to give such notice to all the Holders, or any defect in the notice,
will not impair or affect the validity of the supplemental indenture.
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, indemnities, privileges and immunities under this Indenture of the Trustee, the Company, the Subsidiary Guarantors
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 in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company or the Trustee shall so determine, new 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 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.
Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or
waiver.
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 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 of the Company
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 consolidated properties and assets of the Company
and its Subsidiaries, taken as a whole, to another Person (other than any such sale, conveyance, transfer or lease to one or more of
the Company’s direct or indirect Wholly Owned Subsidiaries) unless:
(a) the
resulting, surviving or transferee Person (the “Successor Company”), if not the Company, shall be a corporation organized
and existing under the laws of the United States of America, any State thereof or the District of Columbia, and the Successor Company
(if not the Company) shall expressly assume, by supplemental indenture, all of the obligations of the Company under the Notes and this
Indenture; and
(b) immediately
after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing under this Indenture.
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.
Section 11.02. Successor
Corporation to Be Substituted. In case of any such consolidation, merger, sale, conveyance, transfer or lease and upon the assumption
by the Successor Company, 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 Company (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 Company 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 Company 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 Company 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 consolidation, merger, sale, conveyance or transfer (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. In case of any such consolidation, merger, sale, conveyance, transfer or lease, such changes in phraseology
and form (but not in substance) may be made in the 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
or Subsidiary Guarantee, 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 Subsidiary Guarantor in this Indenture or in any supplemental indenture or in any Note or
Subsidiary Guarantee, 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 Subsidiary 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 Subsidiary Guarantor
or of any successor corporation, either directly or through any such Person, 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
Guarantees of Notes
Section 13.01. Subsidiary
Guarantees. (a) Subject to this Article 13, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally
guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:
(i) the
principal of (including the Fundamental Change Repurchase Price or the Redemption Price, if applicable), premium and interest on, the
Notes, and the payment and, if applicable, delivery of any consideration due upon conversion of the Notes, shall be promptly paid and,
if applicable, delivered in full when due under this Indenture and the Notes, whether at maturity, by acceleration, upon repurchase,
upon redemption, upon conversion or otherwise, and interest on the overdue principal of (including the Fundamental Change Repurchase
Price or the Redemption Price, if applicable) and interest on the Notes, if any, if lawful, and all other payment and, if applicable,
delivery obligations of the Company to the Holders or the Trustee hereunder or thereunder shall be promptly paid and, if applicable,
delivered in full or performed, all in accordance with the terms hereof and thereof; and
(ii) in
case of any extension of time of payment or, if applicable, delivery or renewal of any Notes or any of such other obligations, that same
shall be promptly paid and, if applicable, delivered in full when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration, upon conversion or otherwise.
Failing payment
or, if applicable, delivery when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary
Guarantors shall be jointly and severally obligated to pay and, if applicable, deliver the same immediately. Each Subsidiary Guarantor
agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantees shall not be convertible and
shall automatically terminate with respect to a given Note when such Note is converted.
(b) The
Subsidiary Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability
of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any
other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Subject to Section
6.06, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, 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 Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained
in the Notes and this Indenture.
(c) If
any Holder or the Trustee is required by any court or otherwise to return to the Company, the Subsidiary Guarantors or any custodian,
trustee, liquidator or other similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid
or, if applicable, delivered by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.
(d) Each
Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment and, if applicable, delivery in full of all obligations guaranteed hereby. Each Subsidiary Guarantor
further agrees that, as between the Subsidiary Guarantors, on the one hand, and the
Holders and the Trustee,
on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes
of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article
6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose
of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying or, if applicable,
non-delivering Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary
Guarantee.
Section 13.02. Limitation
on Subsidiary Guarantor Liability. Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it
is the intention of all such parties that the Subsidiary Guarantee of such Subsidiary Guarantor not constitute a fraudulent transfer
or conveyance for purposes of Title 11, U.S. Code or any similar federal or state law for the relief of debtors, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Subsidiary Guarantee.
To effectuate the foregoing intention, the Trustee, the Holders and the Subsidiary Guarantors hereby irrevocably agree that the obligations
of such Subsidiary Guarantor shall be limited to the maximum amount that shall, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Subsidiary 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 Subsidiary Guarantor
in respect of the obligations of such other Subsidiary Guarantor under this Article 13, result in the obligations of such Subsidiary
Guarantor under its Subsidiary Guarantee not constituting a fraudulent transfer or conveyance.
Section 13.03. Execution
and Delivery of Subsidiary Guarantee. Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section
13.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Subsidiary Guarantee.
If an Officer whose
signature is on this Indenture or on the Subsidiary Guarantee no longer holds that office at the time the Trustee authenticates the Note
on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall be valid nevertheless.
The delivery of
any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth
in this Indenture on behalf of the Subsidiary Guarantors.
Section 13.04. Consolidation,
Merger, Sale, Conveyance and Lease of the Subsidiary Guarantors.
(a) Subsidiary
Guarantors May Consolidate, Etc., on Certain Terms. Subject to the provisions of Section 13.04(b), no Subsidiary Guarantor shall
consolidate with, merge with or into, or sell, convey, transfer or lease all or substantially all of its properties and assets to another
Person, unless:
(i) the
resulting, surviving or transferee Person (the “Successor Subsidiary Guarantor”), if not the Company or a Subsidiary
Guarantor, is a Wholly Owned Subsidiary of the Company organized and existing under the laws of the United States of America, any State
thereof or the District of Columbia, and such Successor Subsidiary Guarantor (if not the Company or a Subsidiary Guarantor) shall expressly
assume, by supplemental indenture all of the obligations of such Subsidiary Guarantor under the relevant Subsidiary Guarantee, the Notes
and this Indenture; and
(ii) immediately
after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing under this Indenture.
Notwithstanding
Section 13.04(a)(i), and for the avoidance of doubt, if any such consolidation, merger, sale, conveyance, transfer or lease involving
a Subsidiary Guarantor would result in such Subsidiary Guarantor being released from all of its guarantee obligations with respect to
the Credit Agreement (and no Successor Subsidiary Guarantor assumes such guarantee obligations with respect to the Credit Agreement),
such sale or other disposition shall be deemed to not violate this Section 13.04 (assuming all other conditions set forth in this Article
13 are satisfied). For purposes of this Section 13.04(a), the sale, conveyance, transfer or lease of all or substantially all of
the properties and assets of one or more Subsidiaries of a Subsidiary Guarantor to another Person (other than one or more Subsidiaries
of any one or more Subsidiary Guarantors), which properties and assets, if held by such Subsidiary Guarantor instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of such Subsidiary Guarantor 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 such Subsidiary Guarantor
to another Person.
(b) Successor
Corporation to Be Substituted. In case of any such consolidation, merger, sale, conveyance, transfer or lease and upon the assumption
by a Successor Subsidiary Guarantor, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of its guarantee 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 such Subsidiary Guarantor, such Successor Subsidiary
Guarantor (if not the Company or a Subsidiary Guarantor) shall succeed to and, except in the case of a lease of all or substantially
all of such Subsidiary Guarantor’s properties and assets, shall be substituted for such Subsidiary Guarantor, with the same effect
as if it had been named herein as the party of the first part. In the event of any such consolidation, merger, sale, conveyance or transfer
(but not in the case of a lease), upon compliance with this Section 13.04 the Person named as the “Subsidiary Guarantor”
in the definition of such term in Section 1.01 (or any successor that shall thereafter have become such in the manner prescribed
in this Section 13.04) 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 from its obligations under this Indenture and the Notes.
In case of any such
consolidation, merger, sale, conveyance, transfer or lease, such changes in phraseology and form (but not in substance) may be made in
the Notes thereafter to be issued as may be appropriate.
Section 13.05. Releases.
(a) The Subsidiary Guarantee of a Subsidiary Guarantor shall be unconditionally and automatically released:
(i) in
connection with any sale or other disposition of all or substantially all of the assets of that Subsidiary Guarantor (including by way
of merger, consolidation or LLC Division) to a Person that is not (either before or after giving effect to such transaction) a Subsidiary
of the Company if the sale or other disposition does not violate Section 13.04;
(ii) in
connection with any sale or other disposition of the Capital Stock of that Subsidiary Guarantor following which the applicable Subsidiary
Guarantor is no longer a Subsidiary of the Company to a Person that is not (either before or after giving effect to such transaction)
a Subsidiary of the Company if the sale or other disposition does not violate Section 13.04;
(iii) in
connection with the release of such Subsidiary Guarantor from all guarantee obligations of such Subsidiary Guarantor with respect to
the Credit Agreement; or
(iv) upon
satisfaction and discharge of this Indenture in accordance with Article 3 hereof; and
(b) upon
the Company delivering to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent
provided for in this Indenture relating to such transaction have been complied with. Upon request, the Trustee shall execute an instrument
evidencing the release of such Subsidiary Guarantor.
Any Subsidiary Guarantor not released
from its obligations under its Subsidiary Guarantee as provided in this Section 13.05 shall remain liable for the full amount of
principal (including the Fundamental Change Repurchase Price or the Redemption Price, if applicable) of and interest and premium, if
any, on the Notes, the full amount of consideration due upon Conversion of the Notes and for the other obligations of any Subsidiary
Guarantor under this Indenture as provided in this Article 13.
Section 13.06. Additional
Note Guarantees. The Company shall cause each direct or indirect domestic Wholly Owned Subsidiary of the Company that guarantees
borrowings of the Company under the Credit Agreement to become a Subsidiary Guarantor and execute a supplemental indenture and deliver
an Officer’s Certificate and an Opinion of Counsel within 30 days of the date on which it became a guarantor of the Credit Agreement.
The form of such supplemental indenture is attached as Exhibit B hereto.
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 a minimum of $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 August 1, 2028 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 August 1,
2028 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 49.0810 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)
Prior to the close of business on the Business Day immediately preceding August 1, 2028, a Holder may surrender all or any portion of
its Notes for conversion at any time during the five Business Day period after any ten consecutive Trading Day period (the “Measurement
Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of
Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the
Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices
shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading Price set forth in
this Indenture. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000
principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation to make such
request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price
per $1,000 principal amount of Notes) unless a Holder of at least $2,000,000 aggregate principal amount of Notes provides the Company
with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the
product of the Last Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which
time the Company shall instruct the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid
Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading
Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of
the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. At such time as the Company instructs the Bid
Solicitation Agent (if other than the Company) to obtain bids, the Company shall provide the Bid Solicitation Agent with the names and
contact information for the securities dealers it selected and the Company shall instruct such securities dealers to provide bids to
the Bid Solicitation Agent. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not, when the Company is
required to, instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as
provided in the preceding sentence, or if the Company gives such instruction to the Bid Solicitation Agent and the Bid Solicitation Agent
fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination
when obligated as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes on
any date shall be deemed to be less than 98% of the product
of the Last Reported
Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth
above has been met, the Company shall so notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing.
Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth above has
been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported
Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify the Holders, the Trustee and the Conversion
Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company)
shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this Indenture) again unless a new Holder
request is made as provided in this subsection (b)(i).
(ii) If,
prior to the close of business on the Business Day immediately preceding August 1, 2028, the Company elects to:
(A) distribute
to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder
rights plan prior to the separation of such rights from the Common Stock) entitling them, for a period of not more than 60 calendar 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; or
(B) distribute
to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the
Company (other than in connection with a stockholder rights plan prior to separation of such rights from the Common Stock), which distribution
has a per share value, as reasonably determined by the Company in good faith, exceeding 10% of the Last Reported Sale Price of the Common
Stock on the Trading Day preceding the date of announcement for such distribution,
then, in either case, the Company shall
notify all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 48 Scheduled Trading
Days prior to the Ex-Dividend Date for such distribution (or, if later in the case of any such separation of rights issued pursuant to
a stockholder rights plan, as soon as reasonably practicable after the Company becomes aware that such separation or triggering event
has occurred or will occur). Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion
at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution
and (2) the Company’s announcement that such distribution will not take place, in each case, even if the Notes are not otherwise
convertible at such time; provided that Holders may not convert their Notes pursuant to this subsection (b)(ii) if they participate,
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 clause (A) or (B) of this subsection (b)(ii) without having to convert their Notes as if they held a number of shares of
Common Stock equal to the Conversion Rate as of the Record
Date for such distribution,
multiplied by the principal amount (expressed in thousands) of Notes held by such Holder.
(iii) If
(A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business
on the Business Day immediately preceding August 1, 2028, regardless of whether a Holder has the right to require the Company to repurchase
the Notes pursuant to Section 15.02, or (B) 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 that (x) does not constitute a Fundamental
Change or a Make-Whole Fundamental Change and (y) results in a reclassification, conversion or exchange of outstanding shares of Common
Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference Property for the Notes) that
occurs prior to the close of business on the Business Day immediately preceding August 1, 2028 (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 the Corporate Event (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 Corporate Event 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 as promptly
as practicable following the effective date of such Corporate Event. If the Company does not provide such notice by the second Business
Day after such effective date, then the last day on which the Notes are convertible will be extended by the number of Business Days from,
and including, the second Business Day after such effective date to, but excluding, the date the Company provides such notice.
(iv) Prior
to the close of business on the Business Day immediately preceding August 1, 2028, a Holder may surrender all or any portion of its Notes
for conversion at any time during any fiscal quarter commencing after the fiscal quarter ending on January 28, 2024 (and only during
such fiscal quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during
the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding fiscal quarter
is greater than or equal to 130% of the Conversion Price on each applicable Trading Day, as determined by the Company.
(v) If
the Company calls any Notes for redemption pursuant to Article 16, then a Holder may surrender all or any portion of its Called
Notes for conversion at any time prior to the close of business on the second Scheduled Trading Day immediately preceding the Redemption
Date, even if the Called Notes are not otherwise convertible at such time. After that time, the right to convert such Called Notes on
account of the Company’s delivery of a Notice of Redemption shall expire, unless the Company defaults in the payment of the Redemption
Price, in which case a Holder of Called Notes may
convert
all or a portion of its Called Notes until the close of business on the Scheduled Trading Day immediately preceding the date on which
the Redemption Price has been paid or duly provided for. If the Company elects to redeem fewer than all of the outstanding Notes pursuant
to Section 16.02, and the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to
determine, prior to the close of business on the 44th Scheduled Trading Day immediately preceding the relevant Redemption Date, whether
such Note or beneficial interest, as applicable, is to be redeemed pursuant to such Optional Redemption, then such Holder or owner, as
applicable, will be entitled to convert such Note or beneficial interest, as applicable, at any time before the close of business on
the second Scheduled Trading Day immediately preceding such Redemption Date, unless the Company defaults in the payment of the Redemption
Price, in which case such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable,
until the close of business on the Scheduled Trading Day immediately preceding the date on which the Redemption Price has been paid or
duly provided for, and each such conversion will be deemed to be of a Note called for Optional Redemption, and such Note or beneficial
interest will be deemed to be called for Optional Redemption solely for the purposes of such conversion (“Deemed Redemption”).
In connection with an Optional Redemption pursuant to Section 16.02, if a Holder elects to convert Called Notes during the related
Redemption Period, the Company will, under certain circumstances, increase the Conversion Rate for such Called Notes pursuant to Section
14.03. Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to Section 16.02, Holders
of the Notes that are not Called Notes will not be entitled to convert such Notes pursuant to this Section 14.01(b)(v) and
will not be entitled to an increase in the Conversion Rate on account of the Notice of Redemption for conversions of such Notes during
the related Redemption Period, even if such Notes are otherwise convertible pursuant to any other provision of this Section
14.01(b).
Section 14.02. Conversion
Procedure; Settlement Upon Conversion.
(a) Except
as provided in Section 14.03(b) and Section 14.07(a), upon conversion of any Note, on the second Business Day immediately following
the last Trading Day of the relevant Observation Period, 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, a “Settlement
Amount” equal to the sum of the Daily Settlement Amounts for each of the 40 Trading Days during the relevant Observation Period
for such Note, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection
(j) of this Section 14.02.
(i) All
conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for
which the relevant Conversion Date occurs on or after August 1, 2028, shall be settled using the same forms and amounts of consideration.
(ii) Except
for any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions
for which the relevant Conversion Date occurs on or after August 1, 2028, the Company
shall use
the same forms and amounts of consideration for all conversions with the same Conversion Date, but the Company shall not have any obligation
to use the same forms and amounts of consideration with respect to conversions with different Conversion Dates.
(iii) If,
in respect of any Conversion Date (or any conversions of Called Notes for which the relevant Conversion Date occurs during the related
Redemption Period or any conversions for which the relevant Conversion Date occurs on or after August 1, 2028), the Company elects to
settle all or a portion of its Conversion Obligation in excess of the principal portion of the Notes being converted in cash in respect
of such Conversion Date (or such period, as the case may be), the Company shall inform converting Holders, the Trustee and the Conversion
Agent (if other than the Trustee) of such election (the “Settlement Notice”) no later than the close of business on
the Trading Day immediately following the relevant Conversion Date (or, in the case of (A) any conversions of Called Notes for which
the relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption or (B) any conversions
of Notes for which the relevant Conversion Date occurs on or after August 1, 2028, no later than August 1, 2028) and the Company shall
indicate in such Settlement Notice the percentage of the Conversion Obligation in excess of the principal portion of the Notes being
converted that shall be paid in cash (the “Cash Percentage”). If the Company does not elect a Cash Percentage prior
to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect a Cash Percentage
with respect to any conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected a Cash
Percentage of 0% with respect to such conversion.
(iv) The
Daily Settlement Amounts, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values shall be determined by the
Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts,
the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values 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, the Daily Net Settlement Amounts (if applicable) and the Daily Conversion Values and the amount of cash payable
in lieu of delivering any fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have
no responsibility for any such determination.
(b) Subject
to Section 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. 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
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.
(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, 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 and
prior to the open of business on the corresponding Interest Payment 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 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 Scheduled Trading 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 overdue interest, if any overdue interest exists at the time of conversion
with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding
(i) the Maturity Date, (ii) any Redemption Date described in clause (2) of the immediately preceding sentence and (iii) any Fundamental
Change Repurchase Date described in clause (3) of the immediately preceding sentence, as applicable, shall receive the full interest
payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted
following such Regular Record Date.
(i) The
Person in whose name any shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the
close of business on the last Trading Day of the relevant Observation Period. Upon a conversion of Notes, such Person shall no longer
be a Holder of such Notes surrendered for conversion.
(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 last Trading Day of the relevant Observation
Period. For each Note surrendered for conversion, the full number of
shares, if any, that
shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation
Period and any fractional shares remaining after such computation shall be paid in cash.
Section 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 as provided under Section
16.03 and a Holder elects to convert its Called Notes in connection with such Notice of Redemption, as the case may be, 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
from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the Business Day immediately prior
to the related Fundamental Change Repurchase Date (or, in the case of an Exempted Fundamental Change or a 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 related Redemption Period.
For the avoidance of doubt, if the Company elects to redeem fewer than all of the outstanding Notes in an Optional Redemption pursuant
to Section 16.02, Holders of the Notes that are not Called Notes will not be entitled to convert such Notes pursuant to Section
14.01(b)(v) and will not be entitled to an increase in the Conversion Rate for conversions of such Notes (on account of the Notice of
Redemption) during the applicable Redemption Period, even if such Notes are otherwise convertible pursuant to Section 14.01(b)(i)-(v).
(b) Upon
surrender of Notes for conversion in connection with a Make-Whole Fundamental Change or a Notice of Redemption, the Company shall pay
or deliver, as the case may be, the Settlement Amount due in respect of such Notes in accordance with Section 14.02 based on the
Conversion Rate as increased to reflect the Additional Shares in accordance with this Section 14.03; 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 Settlement Amount 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 Settlement Amount shall be
determined and paid to Holders in cash on the fifth Business Day following the Conversion Date. The Company shall notify the Holders,
the Trustee and the Conversion Agent (if other than the
Trustee) in writing
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 date the Company delivers the Notice of Redemption, as the case may be (in each
case, the “Effective Date”), and the price (the “Stock Price”) paid (or deemed to be paid) per
share of the Common Stock in the Make-Whole Fundamental Change or determined with respect to the Notice of Redemption, as the case may
be. 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. If a conversion of Called Notes during a Redemption
Period would also be deemed to be in connection with a Make-Whole Fundamental Change, a Holder of any such Notes to be converted will
be entitled to a single increase to the Conversion Rate with respect to the first to occur of the Effective Date of the Notice of Redemption
or the Make-Whole Fundamental Change, as applicable, and the later event shall be deemed not to have occurred for purposes of such conversion
for purposes of this Section 14.03.
(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.
(e) 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:
|
Stock
Price |
Effective
Date |
$15.98
|
$17.50
|
$20.37
|
$23.00
|
$26.49
|
$30.00
|
$35.00
|
$40.00
|
$50.00
|
$60.00
|
$80.00
|
$100.00
|
October
26, 2023 |
13.4972 |
11.2811 |
8.2965 |
6.4439 |
4.7622 |
3.6157 |
2.5294 |
1.8188 |
0.9776 |
0.5250 |
0.1131 |
0.0000 |
November
1, 2024 |
13.4972 |
11.2349 |
8.0599 |
6.1370 |
4.4375 |
3.3123 |
2.2780 |
1.6195 |
0.8594 |
0.4572 |
0.0948 |
0.0000 |
November
1, 2025 |
13.4972 |
10.9057 |
7.5243 |
5.5470 |
3.8701 |
2.8107 |
1.8826 |
1.3175 |
0.6876 |
0.3603 |
0.0661 |
0.0000 |
November
1, 2026 |
13.4972 |
10.2943 |
6.6274 |
4.6039 |
3.0091 |
2.0843 |
1.3426 |
0.9245 |
0.4796 |
0.2492 |
0.0368 |
0.0000 |
November
1, 2027 |
13.4972 |
9.2880 |
5.1021 |
3.0639 |
1.7173 |
1.0870 |
0.6717 |
0.4663 |
0.2508 |
0.1307 |
0.0143 |
0.0000 |
November
1, 2028 |
13.4972 |
8.0617 |
0.0000 |
0.0000 |
0.0000 |
0.0000 |
0.0000 |
0.0000 |
0.0000 |
0.0000 |
0.0000 |
0.0000 |
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 year or 366-day year, as applicable;
(ii) if
the Stock Price is greater than $100.00 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 $15.98 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 62.5782 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 exclusively issues shares of Common Stock as a dividend or distribution on all or substantially all outstanding 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:
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; |
|
|
|
CR' |
= |
the
Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or Effective Date; |
|
|
|
OS0 |
= |
the number
of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date (before
giving effect to any such dividend, distribution, split or combination); and |
|
|
|
OS' |
= |
the number
of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share 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 calendar 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; |
|
|
|
CR' |
= |
the Conversion
Rate in effect immediately after the open of business on such Ex-Dividend Date; |
|
|
|
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 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) and for the purpose of Section 14.01(b)(ii)(A), 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) (or would have been effected but for the 1% Exception), (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:
where,
CR0 |
= |
the
Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution; |
|
|
|
CR' |
= |
the Conversion
Rate in effect immediately after the open of business on 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 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; |
|
|
|
CR' |
= |
the Conversion
Rate in effect immediately after the end of the Valuation Period; |
|
|
|
FMV0 |
= |
the average
of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable
to one share of the Common Stock (determined by reference to the definition of Last Reported Sale Price as set forth in Section
1.01 as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first 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 for any Trading Day that falls within the relevant Observation Period for the relevant 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.
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
the Company makes any cash dividend or distribution to all or substantially all holders of the Common Stock, the Conversion Rate shall
be adjusted based on the following formula:
where,
CR0 |
= |
the
Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution; |
|
|
|
CR' |
= |
the Conversion
Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; |
|
|
|
SP0 |
= |
the 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; |
|
|
|
CR' |
= |
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; |
|
|
|
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); |
|
|
|
OS' |
= |
the number
of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the
purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and |
SP' |
= |
the
average of the Last Reported Sale Prices of the Common Stock over the 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 for any Trading Day
that falls within the relevant Observation Period for the relevant 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.
(f) 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.
(g) 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 shares of 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.
(h) 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;
(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;
(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.
(i) 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.
(j) 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 each Trading Day of any Observation Period related
to any conversion of Notes, (iii) August 1, 2028, (iv) on any date on which the Company delivers a Notice of Redemption and (v) on the
effective date of any Fundamental Change and/or Make-Whole Fundamental Change, in each case, unless the adjustment has already been made.
The provisions described in the preceding sentence are referred to as the “1% Exception.”
(k) Whenever
the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee (and the Conversion Agent if not
the Trustee) an 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 shall have received such Officer’s
Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume without inquiry
that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company
shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each
adjustment becomes effective and shall 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.
(l) 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.
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, the Daily Net Settlement Amounts or the Daily Settlement Amounts over a span of multiple days (including,
without limitation, an Observation Period and the period, if any, for determining the Stock Price for purposes of a Make-Whole Fundamental
Change or a Notice of Redemption), the Company shall, in good faith, make appropriate adjustments (without duplication in respect of
any adjustment made pursuant to Section 14.04) 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,
the Daily Net Settlement Amounts or the Daily Settlement Amounts are to be calculated.
Section 14.06. Shares
to Be Fully Paid. The Company shall at all times reserve, free from preemptive rights, out of its authorized but unissued shares
or shares held in treasury, a number of shares of Common Stock equal to the product of (a) the number of outstanding Notes and (b) the
Conversion Rate (assuming the Conversion Rate has been increased by the maximum number of Additional Shares pursuant to Section
14.03), to provide for conversion of the Notes from time to time as such Notes are presented for conversion.
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) upon such Share Exchange Event and, prior to or at the effective time of
such Share Exchange Event, the Company or the successor or acquiring 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, in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes
being converted in accordance with Section 14.02, (B) the amount otherwise payable in cash upon conversion of Notes in accordance
with Section 14.02 shall continue to be payable in cash, (C) 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 and (D) the
Daily VWAP shall be calculated based on the value of a unit of Reference Property that a holder of one share of Common Stock would have
received in such Share Exchange Event.
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 (i) the Reference Property into which the Notes will be convertible shall
be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock, and
(ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to
in clause (i) attributable to one share of Common Stock. If the holders 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 fifth Business Day immediately following the relevant Conversion Date. The Company shall
notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable
after such determination is made.
If the Reference
Property in respect of any such Share Exchange Event includes, in whole or in part, shares of Common Equity or American depositary receipts
(or other interests) in respect thereof, such supplemental indenture described in the second immediately preceding paragraph shall provide
for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article
14 with respect to the portion of the Reference Property consisting of such Common Equity or American depositary receipts (or other interests)
in respect thereof. 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), other than cash and/or cash equivalents, of a Person
other than the Company or the successor or acquiring Person, as the case may be, in such Share Exchange Event, then such supplemental
indenture shall also be executed by such other Person, if such Person is an Affiliate of the Company or the successor or acquiring 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.
(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 up to the aggregate principal amount
of such Notes and cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, in respect of the
remainder, if any, of the Conversion Obligation in excess of the aggregate principal amount of such Notes 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 use its reasonable best efforts to 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.
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. 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 (if other than the Trustee) 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 (if other than the Trustee) 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, nor the Conversion Agent
(if other than the Trustee) shall have any obligation to independently determine or verify if any Fundamental Change, Make-Whole Fundamental
Change, Trigger Event, or any other event has occurred or notify the Holders of any such event. Neither the Trustee nor the Conversion
Agent shall have the responsibility for any act or omission of any Designated Financial Institution described in Section 14.12.
Section 14.10. Notice
to Holders Prior to Certain Actions. In case of any:
(a) public
announcement of any 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; provided, however, that if on such date, the Company does not have knowledge
of such event or the adjusted Conversion Rate cannot be calculated, the Company shall deliver such notice as promptly as practicable
upon obtaining knowledge of such event or information sufficient to make such calculation, as the case may be, and in no event later
than the effective date of such adjustment. 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.
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 deliver, 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 and deliver,
as the case may be, in exchange for such Notes, the cash up to the aggregate principal amount of such Notes and cash, shares of Common
Stock or combination thereof in respect of the remainder, if any, of the Conversion Obligation in excess of the aggregate principal amount
of such Notes 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 and 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 does not timely pay and deliver, as the case
may be, the related Conversion Consideration, or if such Designated Financial Institution(s) does not accept the Notes for exchange,
the Company shall pay and 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.
Article
15
Repurchase of Notes at Option of Holders
Section 15.01. [Intentionally
Omitted].
Section 15.02. Repurchase
at Option of Holders Upon a Fundamental Change.
(a) Subject
to Section 15.02(f), if a Fundamental Change 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 a minimum of $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 the close of business on such Regular Record Date on, or
at the Company’s election, before such Interest Payment 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 in the case of Physical Notes, or through the applicable procedures
of the Depositary, in the case of Global Notes.
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, 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 resulting 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. Simultaneously
with providing such notice, the Company shall publish such information on the Company’s website or through such other public medium
as the Company may use at that time. 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
validly 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
written request, given at least two (2) Business Days before such notice is to be sent (or such shorter period as shall be acceptable
to 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.
(d) Notwithstanding
anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to 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) of the definition thereof, if: (i) such Fundamental Change constitutes a Share Exchange Event 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 does not 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) 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:
(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;
If the Notes are Global Notes, Holders
must 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 and/or Notes 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.
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
the provisions of any securities laws or regulations adopted after the date of this Indenture 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. [Reserved].
Section 16.02. Optional
Redemption on or after November 5, 2026. On or after November 5, 2026, the Company may redeem (an “Optional Redemption”)
for cash all or any portion of the Notes (subject to the Partial Redemption Limitation), at the relevant Redemption Price, if 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) during any 30 consecutive Trading Day period (including the last Trading Day of such 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. The Trustee shall have no liability or responsibility for determining whether the conditions for Optional Redemption have been
met. If the Company elects to redeem fewer than all of the outstanding Notes, at least $75,000,000 aggregate principal amount of Notes
must be outstanding and not subject to redemption as of the relevant date of a Notice of Redemption (such requirement, the “Partial
Redemption Limitation”). 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 Trustee shall select
the Notes or portions thereof to be redeemed (in principal amounts of $1,000 or multiples thereof) by lot, on a pro rata basis
or by another method the Trustee considers to be 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 16.03. Notice
of Redemption; Selection of Notes.
(a) In
case the Company exercises its right to redeem all or 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 received by the Trustee not less than five Business
Days prior to the date such Notice of Redemption is to be sent (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 redemption (a “Notice
of Redemption”) not less than 45 nor more than 65 Scheduled Trading Days prior to the Redemption Date to each Holder so 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, the Paying Agent (if other than the Trustee) and the Conversion Agent (if other than the
Trustee). The Redemption Date must be a Business Day, and the Company may not specify a Redemption Date that falls on or after the 41st
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 identify the provision of this Indenture permitting redemption and 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 Scheduled Trading
Day immediately preceding the Redemption Date;
(vi) the
procedures a converting Holder must follow to convert its Called Notes and the Cash Percentage;
(vii) the
Conversion Rate and, if applicable, the number of Additional Shares added to the Conversion Rate in accordance with Section 14.03;
(viii) the
CUSIP, ISIN or other similar numbers, if any, assigned to such Notes; and
(ix) if
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.
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).
Article
17
Miscellaneous Provisions
Section 17.01. Provisions
Binding on Company’s 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.
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 Subsidiary
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 Subsidiary 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 Subsidiary 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 Semtech Corporation, 200 Flynn Road, Camarillo, California 93012-8790, Attention: Legal Department. 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.
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; provided that, notice to the Trustee and Conversion
Agent shall be deemed given upon actual receipt by the Trustee or Conversion Agent, as applicable. 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.
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 Subsidiary 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 Subsidiary 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 Subsidiary Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the Company or such Subsidiary
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.
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 by non-Affiliates of the Company
under Rule 144, or (3) a request by the Company that the Trustee deliver a notice to Holders under this 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.
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, or entitled to request, 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.
Section 17.07. No
Security Interest Created. Except as provided in Section 7.06, 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.
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 of the corporate trust business 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.
By: ____________________
Authorized Officer
Section 17.11. Execution
in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts
shall together constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile,
PDF or other electronic 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, PDF or other
electronic transmission shall constitute effective execution and delivery of this Indenture as to the other parties hereto shall be deemed
to be their original signatures for all purposes.
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 SUBSIDIARY 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, strikes, work stoppages,
accidents, acts of war or terrorism, pandemics, epidemics, quarantine restrictions, recognized public emergencies, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or
computer (software and hardware) services and the unavailability of the Federal Reserve Bank wire or telex facility or other wire or
telex facility; 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
trading price of the
Notes (for purposes of determining whether the Notes are convertible as described herein), the Daily VWAPs, the Daily Conversion Values,
the Daily Net Settlement Amounts, the Daily Settlement Amounts, accrued interest payable on the Notes, the Redemption Price for an Optional
Redemption, Additional Interest, if any, payable on the Notes and the Conversion Rate and Conversion Price of the Notes and adjustments
thereto. 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, the Paying
Agent and the Conversion Agent, and each of the Trustee, the Paying Agent and Conversion Agent is entitled to rely conclusively upon
the accuracy of the Company’s calculations without independent verification. The Company will forward its calculations to any Holder
of Notes upon the request of that Holder at the Company’s sole cost and expense. The Trustee, Paying Agent and Conversion Agent
shall have no responsibility for any calculations under this Indenture or the Notes or for verifying the Company’s calculations.
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. Electronic
Signatures. All notices, approvals, consents, requests and any communications hereunder must be in writing (provided that
any communication sent to the Trustee hereunder must be in the form of a document that is signed manually or by way of a digital signature
provided by DocuSign, AdobeSign (or such other digital signature provider as specified in writing to Trustee by the Company)), in English.
The Company agrees to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications
to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception
and misuse by third parties.
Unless otherwise
provided in this Indenture or in any Note, the words “execute”, “execution”, “signed”, and “signature”
and words of similar import used in or related to any document to be signed in connection with this Indenture, any Note or any of the
transactions contemplated hereby (including amendments, waivers, consents and other modifications) will be deemed to include electronic
signatures and the keeping of records in electronic form, each of which will be, except with respect to authentication of the Notes by
the Trustee, of the same legal effect, validity or enforceability as a manually executed signature in ink or the use of a paper-based
recordkeeping system, as applicable, to the fullest extent and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other similar state
laws based on the Uniform Electronic Transactions Act, provided that, notwithstanding anything herein to the contrary, the Trustee
is not under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee
pursuant to reasonable procedures approved by the Trustee.
[Remainder
of page intentionally left blank]
IN WITNESS WHEREOF,
the parties hereto have caused this Indenture to be duly executed as of the date first written above.
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SEMTECH CORPORATION |
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By: |
/s/ Mark Lin |
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Name: Mark Lin |
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Title: Executive
Vice President and Chief Financial Officer |
[Signature Page to Indenture]
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SEMTECH SAN DIEGO CORPORATION, |
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as
Subsidiary Guarantor |
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By: |
/s/ Mark Lin |
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Name: Mark Lin |
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Title: President
and Chief Financial Officer |
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By: |
/s/ Jeffrey Gutierrez |
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Name: Jeffrey Gutierrez |
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Title: Secretary |
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SIERRA MONOLITHICS, INC., |
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as
Subsidiary Guarantor |
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By: |
/s/ Mark Lin |
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Name: Mark Lin |
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Title: President
and Chief Financial Officer |
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By: |
/s/ Jeffrey Gutierrez |
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Name: Jeffrey Gutierrez |
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Title: Secretary |
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SEMTECH EV, INC., |
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as
Subsidiary Guarantor |
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By: |
/s/ Mark Lin |
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Name: Mark Lin |
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Title: President,
Chief Financial Officer and Treasurer |
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By: |
/s/ Jeffrey Gutierrez |
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Name: Jeffrey Gutierrez |
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Title: Secretary |
[Signature Page to Indenture]
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SEMTECH COLORADO, INC., |
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as Subsidiary Guarantor |
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By: |
/s/ Mark Lin |
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Name:
Mark Lin |
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Title: President
and Chief Financial Officer |
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SEMTECH NEW YORK CORPORATION, |
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as
Subsidiary Guarantor |
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By: |
/s/ Mark Lin |
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Name: Mark Lin |
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Title: President and Treasurer
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TRIUNE SYSTEMS, L.L.C.,
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as
Subsidiary Guarantor |
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By: |
/s/ Mark Lin |
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Name: Mark Lin |
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Title: President
and Chief Financial Officer |
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TRIUNE IP, LLC, |
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as
Subsidiary Guarantor |
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By: |
/s/ Mark Lin |
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Name: Mark Lin |
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Title: President
and Chief Financial Officer |
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SIERRA
WIRELESS AMERICA, INC., |
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as
Subsidiary Guarantor |
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By: |
/s/ Mark Lin |
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Name: Mark Lin |
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Title: President
and Chief Financial Officer |
[Signature Page to Indenture]
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U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee |
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By: |
/s/ Bradley E. Scarbrough |
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Name: Bradley E. Scarbrough |
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Title: Vice President |
[Signature Page to Indenture]
EXHIBIT A
[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 SEMTECH CORPORATION (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 ISSUE 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 AND IS EFFECTIVE AT THE TIME OF SUCH TRANSFER, OR
(C) TO
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 FOR THE COMPANY 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.]
Semtech Corporation
4.00% Convertible Senior Note due 2028
No. [2028-[_]] |
[Initially]1
$[_____________] |
CUSIP No. [______]2
Semtech Corporation,
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 $250,000,000 in aggregate
at any time, in accordance with the rules and applicable procedures of the Depositary, on November 1, 2028, and interest thereon as set
forth below.
This Note shall
bear interest at the rate of 4.00% per year from October 26, 2023, 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 November 1, 2028. Interest is payable semi-annually in arrears
on each May 1 and November 1, commencing on May 1, 2024, to Holders of record at the close of business on the preceding April 15 and
October 15 (whether or not such day is a Business Day), respectively. Additional Interest will be payable as set forth in Section
4.06(d), Section 4.06(e) and Section 6.03 of the within-mentioned Indenture, and any reference to interest on, or in respect
of, any Note therein shall be deemed to include Additional Interest if, in such context, Additional Interest is, was or would be payable
pursuant to any of such Section 4.06(d), Section 4.06(e) or Section 6.03, and any express mention of the payment of Additional
Interest in any provision therein shall not be construed as excluding Additional Interest in those provisions thereof where such express
mention is not made.
Any Defaulted Amounts
shall accrue interest per annum at the rate borne by the Notes, 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 the principal of and interest on this Note, if and so long as such Note is a Global Note, in immediately available funds to the Depositary
or its nominee, as the
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.
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 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 Corporate Trust Office in the
contiguous United States of America as a place where Notes may be presented for payment or for registration of transfer and exchange.
The Notes shall
be unconditionally guaranteed, jointly and severally, by each of the Subsidiary 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 and, if applicable, shares of Common Stock 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.
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]
IN WITNESS WHEREOF,
the Company has caused this Note to be duly executed.
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SEMTECH CORPORATION |
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By: |
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Name: |
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Title: |
Dated:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee, certifies that this is one of the Notes described
in the within-named Indenture.
[FORM OF REVERSE
OF NOTE]
Semtech Corporation
4.00% Convertible Senior Note due 2028
This
Note is one of a duly authorized issue of Notes of the Company, designated as its 4.00% Convertible Senior Notes due 2028 (the “Notes”),
limited to the aggregate principal amount of $250,000,000, all issued or to be issued under and pursuant to an Indenture dated as of
October 26, 2023 (the “Indenture”), among the Company, the Subsidiary Guarantors and U.S. Bank Trust Company, National
Association, as trustee (the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company,
the Subsidiary 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 and not defined in this Note shall have the respective
meanings set forth in the Indenture. In the event of an inconsistency between this Note and the Indenture, the terms of the Indenture
shall govern.
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.
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 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.
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 the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer 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 November 5, 2026 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 (other than an Exempted Fundamental Change), the Holder has the right, at such Holder’s option, 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 $1,000 or an integral multiple thereof, into cash up to the principal amount hereof and
cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, in respect of the remainder, if any,
of the Company’s Conversion Obligation hereof in excess of the principal amount hereof at the Conversion Rate specified in the
Indenture, as adjusted from time to time as provided in the Indenture.
ABBREVIATIONS
The following abbreviations,
when used in the inscription of the face of this Note, shall be construed as though they were written out in full according to applicable
laws or regulations:
TEN COM = as tenants in common
UNIF GIFT MIN ACT = Uniform Gifts to
Minors Act
CUST = Custodian
TEN ENT = as tenants by the entireties
JT
TEN = joint tenants with right of survivorship and not as tenants in common
Additional abbreviations
may also be used though not in the above list.
SCHEDULE A7
SCHEDULE OF EXCHANGES
OF NOTES
Semtech Corporation
4.00% Convertible Senior Notes due 2028
The initial principal
amount of this Global Note is [_______] DOLLARS ($[_________]). The following increases or decreases in this Global Note have been made:
Date of
exchange |
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Amount of
decrease in principal amount of this Global Note |
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Amount of
increase in principal amount of this Global Note |
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Principal
amount of this Global Note following such decrease or increase |
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Signature
of authorized signatory of Trustee or Custodian |
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7 Include
if a global note.
ATTACHMENT 1
[FORM OF NOTICE
OF CONVERSION]
To: U.S. Bank Trust Company, National
Association
633 West Fifth
Street, 24th Floor
Los Angeles, CA
90071
Attn: B. Scarbrough
(Semtech Corporation)
The undersigned
registered owner of this Note hereby exercises the option to convert this Note, or the portion hereof (that is a minimum of $1,000 principal
amount or an integral multiple thereof) below designated, into cash and, if applicable, shares of Common Stock 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. Capitalized terms used
herein but not defined shall have the 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.
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 2
[FORM OF FUNDAMENTAL
CHANGE REPURCHASE NOTICE]
To: U.S. Bank Trust Company, National
Association
633 West Fifth
Street, 24th Floor
Los Angeles, CA
90071
Attn: B. Scarbrough
(Semtech Corporation)
The undersigned
registered owner of this Note hereby acknowledges receipt of a notice from Semtech Corporation (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 a minimum of $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 shall have the 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 repaid
(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 3
[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 Semtech Corporation or
a subsidiary thereof; or
☐ Pursuant to a registration
statement that has become or been declared effective under the Securities Act of 1933, as amended; or
☐ 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 (if available), 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.
EXHIBIT B
FORM OF SUPPLEMENTAL
INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture,
dated as of [_____], 20[__] (this "Supplemental Indenture"), among [_____] (the "Additional Subsidiary Guarantor"),
a subsidiary of Semtech Corporation, a Delaware corporation (or its permitted successor) (the "Company"), the Company, the
other Subsidiary Guarantors (as defined in the Indenture referred to herein) and U.S. Bank Trust Company, National Association, a national
banking association, as trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E
T H:
WHEREAS, the Company
has heretofore executed and delivered to the Trustee
an indenture, dated as of October 26,
2023 (the "Indenture"), providing for the issuance of 4.00% Convertible Senior Notes due 2028 (the "Notes");
WHEREAS, the Indenture
provides that under certain circumstances the Additional Subsidiary Guarantor shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Additional Subsidiary Guarantor shall unconditionally guarantee all of the Company's obligations under
the Notes and the Indenture on the terms and conditions set forth herein (the "Subsidiary Guarantee"); and
WHEREAS, pursuant
to Section 10.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE,
in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company,
the Additional Subsidiary Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the
Notes as follows:
1. Capitalized
Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Agreement
to Guarantee. The Additional Subsidiary Guarantor hereby becomes a party to the Indenture as a Subsidiary Guarantor and as such shall
have all of the rights and be subject to all of the obligations and agreements of a Subsidiary Guarantor under the Indenture. The Additional
Subsidiary Guarantor hereby agrees, on a joint and several basis with all the existing Subsidiary Guarantors, to provide an unconditional
Subsidiary Guarantee on the terms and subject to the conditions set forth in the Subsidiary Guarantee and in the Indenture including
but not limited to Article 13 thereof.
3. Ratification
of Indenture – Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental
Indenture shall form
a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound
hereby.
4. No Recourse
Against Others. No past, present or future director, officer, employee, incorporator, stockholder or agent of the Additional Subsidiary
Guarantor, as such, shall have any liability for any obligations of the Company or any Additional Subsidiary Guarantor under the Notes,
any Subsidiary Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public policy.
5. GOVERNING
LAW. 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.
6. Severability
Clause. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective
only to the extent of such invalidity, illegality or unenforceability.
7. Counterparts.
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, PDF or other electronic 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 Supplemental Indenture and signature pages for all purposes. Signatures
of the parties hereto transmitted by facsimile, PDF or other electronic transmission shall constitute effective execution and delivery
of this Supplemental Indenture as to the other parties hereto shall be deemed to be their original signatures for all purposes.
8. Effect of
Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
9. The Trustee.
The Trustee shall not be responsible 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 contained herein, all of which recitals are made solely by the Additional Subsidiary Guarantor and
the Company.
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested,
all as of the date first above written.
Dated: [_____], 202[_]
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[ADDITIONAL SUBSIDIARY GUARANTOR] |
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SEMTECH CORPORATION |
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Title: |
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U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee |
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